State v. Vanderford

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

FEBRUARY 1997 SESSION
FILED
December 11, 1997

STATE OF TENNESSEE, ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
APPELLEE, )
) No. 02-C-01-9609-CC-00307
)
) Hardin County
v. )
) C. Creed McGinley, Judge
)
) (Possession of Cocaine and
) Marijuana with Intent to Sell)
CHARLES DAVID VANDERFORD, )
)
APPELLANT. )

FOR THE APPELLANT: FOR THE APPELLEE:

J. Daniel Freemon John Knox Walkup
Attorney at Law Attorney General & Reporter
327 West Gaines Street 500 Charlotte Avenue
Lawrenceburg, TN 38464 Nashville, TN 37243-0497

Eugene J. Honea
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493

G. Robert Radford
District Attorney General
P.O. Box 686
Huntingdon, TN 38344-0686

John W. Overton, Jr.
Assistant District Attorney General
P.O. Box 484
Savannah, TN 38372

OPINION FILED:_____________________________

AFFIRMED

Joe B. Jones, Presiding Judge
 OPINION

The appellant, Charles David Vanderford (defendant), was convicted of possessing

over five grams of cocaine, a Class B felony, and possessing more than .5 ounces of

marijuana, a Class E felony, by a jury of his peers. The trial court found the defendant was

a standard offender and imposed the following Range I sentences: a fine of $25,000 and

confinement for nine (9) years in the Department of Correction for possessing cocaine and

a fine of $5,000 and confinement for eighteen (18) months in the Department of Correction

for possessing marijuana. The sentences are to be served concurrently. The effective

sentence imposed consisted of fines totaling $30,000 and confinement for nine (9) years

in the Department of Correction.

Five issues are presented for review, namely:

I. Whether the trial court erred by failing to compel the state to
furnish certain discovery and exculpatory materials to the
appellant, specifically a tape recording of alleged
conversations between the appellant and a paid informant or
in the alternative, a transcript of the tape?

II. Whether the paid informant used by the Hardin County
Sheriff’s Department was an agent of the sheriff’s department
therefore, subject to the same scrutiny as a government official
under the Fourth Amendment of the United States Constitution
and Article I, Section 7 of the Tennessee Constitution?

III. Whether the trial court erred by denying appellant’s motion
to suppress the evidence obtained as the result of an illegal
and improper search warrant executed on appellant’s
residence?

IV. Whether the trial court erred in failing to order the district
attorney general to grant appellant pre-trial diversion when
appellant applied for same and the district attorney general did
not file an answer setting forth the reason why such should not
be granted?

V. Whether the appropriate sentence in this case would have
been sentencing the defendant to out-right community
corrections pursuant to T.C.A. 40-36-101 et seq?

The defendant also questions the constitutionality of the description of the residence to be

searched under color of the search warrant. After a thorough review of the record, the

briefs submitted by the parties, and the law governing the issues presented for review, it

is the opinion of this court that the judgment of the trial court should be affirmed.

2
 The Hardin County Sheriff’s Department received information that the defendant

was engaged in the trafficking of illicit narcotics. A deputy sheriff had two confidential

informants go to the defendant’s residence to purchase cocaine. The confidential

informants went to the residence on different dates. The confidential informants wore a

device which permitted the deputy sheriff to monitor the conversation between the

confidential informant and the defendant. Both confidential informants purchased cocaine

at the defendant’s residence. The deputy sheriff heard and recorded the conversations.

On March 31, 1995, a search warrant was issued authorizing the search of the

defendant’s residence. The search warrant was served shortly after it was issued. The

deputies seized 12.4 grams of cocaine, 25.1 grams of marijuana, $3,033 in cash, and a

piece of paper outlining drug transactions. The paper writing contained the words “owe”

and “paid” at the top of the paper, and there were several sums of money listed under

these headings. There was testimony that the figure “8," which was found on the paper,

referred to an “eightball,” a term used to indicate a specific quantity of cocaine. There was

also an initial or a first name next to each figure.

I.

The defendant contends the trial court committed error of prejudicial dimensions by

refusing to order the State of Tennessee to furnish him with a copy of the audio tape

containing the conversations between the confidential informants and the defendant, or,

in the alternative, a transcript of the tape. The State of Tennessee contends the trial court

properly denied the motion. The state argues it had the right to protect the identity of the

confidential informant.

Immediately prior to the hearing on the motion to suppress the evidence seized

under color of the search warrant, defense counsel made an oral motion for the disclosure

of the taped conversations between the defendant and the confidential informants. The

following colloquy occurred during the prehearing proceedings:

3
 MR. FREEMON: One other thing, your Honor, is the tape. I
understand there was a tape recorded conversation made
when the probable cause was obtained for this [search]
warrant. And that is important to the argument of the motion
[to suppress] that I know what’s on that tape or how --

THE COURT: Is the tape available?

MR. OVERTON: Your Honor, we’re going to take the position
that since the informant -- the search warrant sets out that the
informant is not named in the search warrant for safety
reasons. That the divulging of the tape would, in fact, identify
that informant.

The tape is not of a transaction that occurred at the time [the]
charge was placed or the basis of this charge. It is a
transaction that occurs earlier that these officers monitored
and then used that transaction as part of the information that
they used to obtain the search warrant.

So it’s our position that the identity of the informant need not
be revealed under the law; nor would anything that would tend
to identify him be revealed under the law.

MR. FREEMON: Your Honor, if the tape itself is not
discoverable then, you know, perhaps I could be furnished with
a transcript of what’s on the tape. I’m not interested in
identifying the informant.

The sheriff deputy or the officer involved in this case testified
that he monitored this conversation. And part of what he says
he heard is the basis of the [search] warrant. It’s the
application that the Court is going to have to determine if it’s
appropriate probable cause or not.

So certainly, if that conversation is mentioned in the affidavit
for the search warrant, we should be apprised of that material.
And I think we’re entitled to it under the rules of discovery.

The court declared a recess and told defense counsel: “You folks need to talk to the

Attorney General and see if you can resolve your discovery problems.” When the

proceedings commenced following the recess, the following occurred:

MR. FREEMON: I need to, I guess, make a motion to compel
discovery of the tape, your Honor. I would make that orally
and follow that up with a written motion.

The argument of counsel continued. Counsel for the codefendant stated he felt the tape

would reveal exculpatory evidence regarding his client. Counsel for the defendant stated:

“Well, we think [the tape] is discoverable, too, your Honor. I’m not sure it would contain

exculpatory information.” Thereafter, the following colloquy took place:

4
 THE COURT: Is this informant not a material witness?

MR. FREEMON: Your Honor, they’re not charged with the sale
[to the informant]. They are charged with the possession of
what was found when the search warrant was executed. This
alleged sale was the basis of the search warrant.

It would be our contention that that constituted an invalid
search of the residence. When the sheriff sent an agent, a law
enforcement agent, into the residence wired so that the sheriff
could monitor what took place inside the residence from
outside the residence, we contend that constitutes a search
and an intrusion without the warrant.

So it’s very important to our presentation of the motion to
suppress that we know what’s on that tape.

The court asked the assistant district attorney general if he desired to reveal the

identity of the informants. The assistant district attorney general told the court he was not

willing to reveal the identity of the informants. The trial court denied the defendant’s motion

to compel the discovery of the tape.

This court must first consider whether the state is entitled to refrain from revealing

the identity of a confidential informant to the defense.

A.

As a general rule, the identity of a confidential informant is privileged. Thus, the

state is not required to reveal the identity of an informant who has provided information

leading to a defendant’s arrest and conviction. State v. Taylor, 763 S.W.2d 756, 760

(Tenn. Crim. App. 1988); State v. Ash, 729 S.W.2d 275, 278 (Tenn. Crim. App. 1986), per.

app. denied (Tenn. 1987); Carver v. State, 570 S.W.2d 872, 874-75 (Tenn. Crim. App.),

cert. denied (Tenn. 1978); Keith v. State, 542 S.W.2d 839, 842 (Tenn. Crim. App.), cert.

denied (Tenn. 1976). See State v. Brown, 823 S.W.2d 576, 586 (Tenn. Crim. App. 1991).

This privilege is predicated upon “public policy and seeks to encourage citizens to assist

in crime detection and prevention by giving information to law enforcement officials without

unduly exposing themselves to the danger inherent in such laudable activity and to make

possible their continued usefulness in future disclosures that the revelation of their identity

would probably hamper and prevent.” Roberts v. State, 489 S.W.2d 263, 264 (Tenn. Crim.

5
App.), cert. denied (Tenn. 1972). The defendant has no constitutional right to the

disclosure of a confidential informant. McCray v. Illinois, 386 U.S. 300, 313-14, 87 S.Ct.

1056, 1064, 18 L.Ed.2d 62, 71-72 (1967); Wallis v. State, 220 Tenn. 400, 406, 417 S.W.2d

781, 784 (1967); United States ex rel. Cunningham v. DeRobertis, 719 F.2d 892, 895 (7th

Cir. 1983); see also Simmons v. State, 198 Tenn. 587, 596, 281 S.W.2d 487, 491 (1955).

This court has held a defendant is not entitled to the disclosure of a confidential

informant’s identity when the only purpose is to attack a search warrant. In State v. Ash,

supra, the defendant moved for the disclosure of a confidential informant who supplied

information which was incorporated into the affidavit given in support of the issuance of the

search warrant. Defense counsel stated he wanted to establish the information supplied

by the confidential informant was false. The trial court denied the motion. This court

affirmed the judgment of the trial court. It was held that a defendant is not entitled to

disclosure of a confidential informant’s identity when the defendant’s sole and exclusive

reason for seeking the identity is to attack the validity of a search warrant. Ash, 729

S.W.2d at 278.

In Wells v. State, 509 S.W.2d 520, 521 (Tenn. Crim. App. 1973), aff’d, 517 S.W.2d

755 (Tenn. 1974), the affidavit given in support of the issuance of the search warrant

stated the confidential informant had purchased illicit narcotics at the defendant’s

residence. The search warrant was issued and the officers seized “rather large quantities”

of the illicit narcotics under color of the warrant. The defendants were prosecuted and

convicted for possession of the illicit narcotics seized at the residence. This court ruled the

state was not required to reveal the identity of the confidential informant to the defendant.

In Phipps v. State, 4 Tenn. Crim. App. 511, 520-21, 474 S.W.2d 154, 159, cert.

denied (Tenn. 1971), the defendant burglarized a business and stole merchandise owned

by the business. A confidential informant told officers that the defendant was the person

who burglarized the building and he was in possession of the stolen merchandise. The

officers had the confidential informant purchase some of the stolen property while they

observed the sale. Thereafter the officers obtained a search warrant and seized some of

the stolen merchandise while searching the defendant’s residence. This stolen property

was the basis for the defendant’s prosecution and resulting conviction. This court held that

6
the trial court did not abuse its discretion by denying the defendant’s motion to compel the

state to divulge the name of the informant.

This court must now consider when a defendant is entitled to discover the identity

of a confidential informant.

B.

The privilege afforded confidential informants is not absolute. Roviaro v. United

States, 353 U.S. 53, 59-61, 77 S.Ct. 623, 627-28, 1 L.Ed.2d 639, 644-45 (1957); Brown,

823 S.W.2d at 586; Washington v. State, 534 S.W.2d 865, 867 (Tenn. Crim. App. 1975),

cert. denied (Tenn. 1976); Roberts v. State, 489 S.W.2d 263, 264-65 (Tenn. Crim. App.),

cert. denied (Tenn. 1972); see Goines v. State, 572 S.W.2d 644, 647 (Tenn. 1978).

Moreover, “the scope of the privilege is limited by its underlying purpose.” Roviaro, 353

U.S. at 60, 77 S.Ct. at 627, 1 L.Ed.2d at 644.

There is no fixed rule regarding when the state must divulge the identity of a

confidential informant to the defendant. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628, 1

L.Ed.2d at 646; Phipps, 4 Tenn. Crim. App. at 520, 474 S.W.2d at 159. Whether the state

should be required to disclose the identity of a confidential informant is a matter which

addresses itself to the sound discretion of the trial court. Wallis, 220 Tenn. at 406, 417

S.W.2d at 784; Simmons, 198 Tenn. at 596-97, 281 S.W.2d at 491-92; Brown, 823 S.W.2d

at 586-87; State v. Russell, 580 S.W.2d 793, 793 (Tenn. Crim. App. 1978), cert. denied

(Tenn. 1979); Phipps, 4 Tenn. Crim. App. at 520-21, 474 S.W.2d at 159. The trial court

must decide this question on a case by case basis, taking into consideration the facts

peculiar to each case. Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646. See

Carver, 570 S.W.2d at 874-75. However, there are certain factual circumstances which

entitle the defendant to discover the identity of a confidential informant.

The state is required to divulge the identity of a confidential informant to the

defendant when: (a) disclosure would be relevant and helpful to the defendant in

presenting his defense and is essential to a fair trial, Roviaro, 353 U.S. at 60-61, 77 S.Ct.

at 628, 1 L.Ed.2d at 645; (b) the informant was a participant in the crime, Roviaro, 353 U.S.

at 64-65, 77 S.Ct. at 629, 1 L.Ed.2d at 647; State v. Campbell, 549 S.W.2d 952, 954

7
(Tenn. 1977); Brown, 823 S.W.2d at 587; (c) the informant was a witness to the crime,

Washington, 534 S.W.2d at 867; Roberts, 489 S.W.2d at 264; or (d) the informant has

knowledge which is favorable to the defendant. Goines, 572 S.W.2d at 647; see Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The defendant, as the movant for disclosure, has the burden of establishing by a

preponderance of the evidence that the confidential informant’s identity is material to his

defense because the informant was a witness to the crime, participated in the crime, or

possesses facts favorable or relevant to the defendant. See Ash, 729 S.W.2d at 278;

Brady v. State, 584 S.W.2d 245, 251 (Tenn. Crim. App.), cert. denied (Tenn. 1979); Keith,

542 S.W.2d at 842; Dortch v. State, 517 S.W.2d 24, 26 (Tenn. Crim. App. 1974). If the

defendant fails to establish the materiality of the confidential informant to his defense, the

state is not required to divulge the identity of the informant to the defendant. Ash, 729

S.W.2d at 278; State v. Tidmore, 604 S.W.2d 879, 882 (Tenn. Crim. App. 1980); Carver,

570 S.W.2d at 874-75; Keith, 542 S.W.2d at 842; Dortch, 517 S.W.2d at 26.

This court must now apply the law to the facts of this case to determine if the

defendant was entitled to discover the identity of the confidential informants.

C.

In this case, the defendant stated the sole reason for seeking the identity of the

confidential informants was to attack the search warrant during the suppression hearing.

He tacitly admitted the confidential informants were not material to the offenses alleged in

the indictment because the prosecution was based upon the evidence seized under color

of the search warrant, not the purchase of illicit narcotics by the confidential informants.

Defense counsel stated he did not expect to find any exculpatory evidence on the taped

conversations between the confidential informants and the defendant.

The defendant was not entitled to discover the identity of the informants for the sole

purpose of attacking the search warrant. Ash, supra; Wells, supra; Phipps, supra. Also,

the defendant failed to establish that the identity of the confidential informants was material

to his defense. Ash, 729 S.W.2d at 278; Tidmore, 604 S.W.2d at 882; Carver, 570

8
S.W.2d at 874-75; Keith, 542 S.W.2d at 842; Dortch, 517 S.W.2d at 26. Consequently,

the state was not required to divulge the identity of the confidential informants to the

defendant. In short, the trial court did not abuse its discretion in denying the defendant’s

motion to compel the discovery of the confidential informants in this case.

D.

The defendant contends he was entitled to a copy of the tape-recorded

conversations between the confidential informants and himself. He argues the audio tape

is discoverable pursuant to Tenn. R. Crim. P. 16(a)(1)(A). The state has not addressed

this subissue.

The defendant filed a general motion for discovery. The only reference in the

motion to “statements made by the defendant” refers to a written or oral statement against

interest pursuant to Tenn. R. Crim. P. 16(a)(1)(A). As previously stated, immediately prior

to the suppression hearing defense counsel moved the trial court for the entry of an order

requiring the state to furnish the defendant with a copy of the audio tape, or, in the

alternative, a transcript of the audio tape. When the state refused to furnish either a copy

of the audio tape or a transcript of the audio tape, defense counsel moved to compel

discovery. The trial court denied the request.

(1)

The defendant in a criminal prosecution has the right “to inspect and copy or

photograph: any relevant written or recorded statements made by the defendant, or copies

thereof, within the possession, custody or control of the State, the existence of which is

known, or by the exercise of due diligence may become known, to the district attorney

general.” Tenn. R. Crim. P. 16(a)(1)(A) (emphasis added). The phrase “recorded

statements” is broad enough to encompass audio tape recordings of conversations

between a confidential informant and a defendant during the course of an investigation

unless it is obvious the “recorded statements” cannot be relevant to any issue. See United

9
States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982); United States v. Taylor, 707 F.

Supp. 696, 700 (S.D. N.Y. 1989); United States v. Feola, 651 F. Supp. 1068, 1141 (S.D.

N.Y. 1987), cert. denied sub nom., Marin v. United States, 493 U.S. 834, 110 S.Ct. 110,

107 L.Ed.2d 72 (1989); Hamilton v. State, 496 So.2d 100, 106-07 (Ala. Crim. App. 1986).

In this case, the conversations were recorded, the defendant was a party to the

conversations, and the audio tape was in the possession of either the assistant district

attorney general or the Hardin County Sheriff’s Department. Thus, the pivotal question this

court must determine is whether the content of the audio tape was relevant within the

meaning of Rule 16(a)(1)(A).

(2)

The term “relevant,” as used in Rule 16(a)(1)(A), means relevant to the crimes

alleged in the indictment. United States v. Disston, 612 F.2d 1035, 1037 (7th Cir. 1980);

United States v. Skillman, 442 F.2d 542, 550 (8th Cir. 1971); United States v. Garrett, 305

F. Supp. 267, 268 (S.D. N.Y. 1969). However, not every “statement” which pertains to the

crimes alleged in the indictment is “relevant.” Disston, 612 F.2d at 1037.

The word “relevant” is defined in the following manner: “a: having significant and

demonstrable bearing on the matter at hand; b: affording evidence tending to prove or

disprove the matter at issue or under discussion, c: having social relevance.” Webster’s

Ninth New Collegiate Dictionary, 995 (1984). A legal dictionary defines the word “relevant”

in the following manner: “Applying to the matter in question; affording something to the

purpose.” Black’s Law Dictionary, 1160 (5th ed. rev. 1979). Rule 401, Tennessee Rules

of Evidence, defines the phrase “relevant evidence” as “evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.”

The term “relevant,” as used in Rule 16(a)(1)(A), does not create a high threshold.

United States v. Yunis, 867 F.2d 617, 621 (D.C. Cir. 1989). The production of most

statements has become “practically a matter of right without a showing of materiality.”

United States v. Haldeman, 559 F.2d 31, 75, n.80 (D.C. Cir. 1976), cert. denied sub nom.,

10
Mitchell v. United States, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).

As previously stated, the sole purpose for the two purchases of illicit narcotics from

the defendant and the recording of the conversations between the confidential informants

and the defendant was to establish probable cause to support the issuance of the search

warrant. The defendant was not prosecuted for the two sales made to the confidential

informants. The confidential informants did not testify at either the suppression hearing

or the trial. The audio tape was not played on either occasion. Nor did the prosecution

mention or allude to the audio tape or the two sales of illicit narcotics to the confidential

informants. The prosecution was limited to the quantity of illicit narcotics seized under

color of the search warrant. Thus, the only issue the jury had to decide was whether the

defendant was guilty of possessing the two quantities of illicit narcotics with intent to sell.

In summary, the content of the audio tape was not “relevant” within the meaning of

Rule 16(a)(1)(A), Tennessee Rules of Criminal Procedure. The content of the audio tape

involved two crimes which were not alleged in the indictment. Disston, 612 F.2d at 1037;

Skillman, 442 F.2d at 550; Garrett, 305 F. Supp. at 268. Defense counsel candidly stated

he did not expect to find any exculpatory information on the tape; and the audio tape was

not material to the crimes alleged in the indictment.

(3)

This court understands and appreciates the district attorney general is placed on the

horns of a dilemma by this court’s holding that audio tapes containing a defendant’s

statements to a confidential informant are discoverable if relevant. Disston, 612 F.2d at

1037-38; see Skillman, 442 F.2d at 550-51; Garrett, 305 F. Supp. at 268. Most of the

cases discussing the privilege of the state to maintain the anonymity of a confidential

informant were written prior to the enactment of the Tennessee Rules of Criminal

Procedure. The opinions following the enactment of the rules have not addressed the

discoverability of defendant-confidential informant recorded statements. The issue is

squarely presented in this case.

The state may shield the identity of a material confidential informant seeking a

11
protective order pursuant to Tenn. R. Crim. P. 16(d)(1). See United States v. Pelton, 578

F.2d 701, 707 (8th Cir. 1978), cert. denied sub nom., Rich v. United States, 439 U.S. 964,

99 S.Ct. 451, 58 L.Ed.2d 422 (1978). When appropriate, the state can seek a protective

order ex parte. Id. Cases involving confidential informant-defendant conversations qualify

for an ex parte hearing. See Pelton, 578 F.2d at 707. If the rule was otherwise, the state’s

ability to protect the identity of the informant would be an effort in futility.

This court can review the ex parte granting of a protective order. The rule provides

that “the entire text of the party’s statement shall be sealed and preserved in the records

of the court to be made available to the [appellate] courts in the event of an appeal.” Tenn.

R. Crim. P. 16(d)(1).

This issue is without merit.

II.

The defendant contends the confidential informants, who were paid to make

purchases of illicit narcotics, were agents of the Hardin County Sheriff’s Department. As

a result, the confidential informants are “subject to the same scrutiny as a government

official under the Fourth Amendment of the United States Constitution and Article I, Section

7 of the Tennessee Constitution.” He argues the informants, who were wearing a device

which transmitted the transactions between the defendant and confidential informants,

“became the eyes and ears of the police.” He concludes that the property seized under

color of the search warrant should have been suppressed because the affidavit supporting

the issuance of the warrant contained information which was illegally and unlawfully

obtained by law enforcement officers.

The State of Tennessee contends the defendant’s argument is predicated upon a

false premise. The state argues “it does not matter whether the informant, who was

wearing a ‘wire’ and who bought drugs from the defendant in the defendant’s residence,

is considered an ‘agent of the State.’” The state reasons the defendant opened the door

to his home, admitted the informants for the purpose of selling illicit narcotics to the

informants, and ultimately sold illicit narcotics to the informants. As a result, the informants

did not intrude upon the sanctity of the defendant’s residence or the privacy of his life.

12
 A.

The defendant correctly contends that evidence seized pursuant to an unreasonable

search and seizure cannot be used to establish probable cause for the issuance of a

search warrant. Bewley v. State, 208 Tenn. 518, 347 S.W.2d 40 (1961); State v. Bowling,

867 S.W.2d 338 (Tenn. Crim. App. 1993). See United States v. Reyes, 922 F. Supp. 818

(S.D.N.Y. 1996). When a search warrant is issued solely on the strength of an affidavit

predicated upon facts obtained as a result of an unreasonable search and seizure, the

evidence seized under color of the search warrant must be suppressed. Id. If the affidavit

alleges facts seized under color of a search warrant, but alleges additional facts in support

of the issuance of the search warrant, the information cannot be considered in determining

whether the affidavit establishes the requisite probable cause. If the affidavit states

probable cause independently of the tainted facts, the accused is not entitled to have the

evidence seized under color of the search warrant suppressed.

In Bewley, the sheriff of Washington County and three of his deputies searched the

exterior of Bewley’s residence and yard for “white whiskey” without the benefit of a search

warrant. 208 Tenn. at 519, 347 S.W.2d at 41. The sheriff and his deputies discovered fruit

jars containing “white whiskey” beneath the back steps. The sheriff did not seize the jars.

Instead, the sheriff went to the office of the Johnson City chief of police and had the chief

apply for and obtain the issuance of a search warrant predicated solely upon the

information the sheriff acquired by the former warrantless search of Bewley’s premises.

Id. The fruit jars containing the “white whiskey” were seized under color of the search

warrant. Bewley was prosecuted for possession of the “white whiskey,” and he was

convicted of the offense. The Tennessee Supreme Court ruled the search warrant

obtained by the chief of police was void. 208 Tenn. at 520, 347 S.W.2d at 41.

In Bowling, a Nashville police officer was investigating a hit-and-run accident which

resulted in the death of a person who was walking on the shoulder of the roadway. 867

S.W.2d at 339. The officer received an anonymous telephone call three days after the

accident. The caller advised the officer the vehicle involved in the hit-and-run accident

could be found at Bowling’s residence. Id. The officer, accompanied by another Nashville

13
police officer and one Wilson County deputy sheriff, went to Bowling’s residence. Id at

339-40. No one was home. One of the officers saw a brown Ford Bronco in the garage.

Another officer got on his hands and knees to look into the garage through an eighteen-

inch opening at the bottom of the garage door. With his head almost on the ground, the

officer was able to see the brown Bronco and determined there was damage to the front

of the vehicle. Id. at 340. The officer subsequently obtained a search warrant based upon

the information he obtained from the warrantless search, which the court found to be

unreasonable. In determining whether the affidavit used to obtain the search warrant

contained sufficient probable cause, this court found that the evidence used to obtain the

search warrant was tainted, and, therefore, the evidence seized should have been

suppressed. Id. at 341-42.

The question which this court must now consider is whether the use of confidential

informants to obtain the information used in the issuance of the search warrant made the

informants the alter ego of the Hardin County Sheriff’s Department.

B.

The courts have recognized law enforcement’s need to use undercover officers and

confidential informants to deter criminal activity. In Lewis v. United States, the United

States Supreme Court said:

Both petitioner and the Government recognize the necessity
for some undercover police activity. . . . Indeed, it has long
been acknowledged by the decisions of this Court . . . that, in
the detection of many types of crime, the Government is
entitled to use decoys and to conceal identity of its agents.

385 U.S. 206, 208-209, 87 S.Ct. 424, 426, 17 L.Ed.2d 312, 315 (1966).

The constitutional provisions contained in the Bill of Rights and the constitutional

rights provided by the Tennessee Constitution protect an accused from unreasonable

searches and seizures. As the Supreme Court said in Lewis: “[t]he various protections of

the Bill of Rights, of course, provide checks upon such official deception for the protection

of the individual.” 385 U.S. 209, 87 S.Ct. at 426, 17 L.Ed.2d at 315.

14
 The facts peculiar to each case are to be considered in determining whether the

undercover officer or confidential informant has violated the constitutional provisions which

are designed to protect the accused. Courts have held that a confidential informant,

whether paid or promised relief in a criminal prosecution, can be used to detect criminal

activity. See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971);

Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966); Lewis, supra;

On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952).

This court must resolve whether the means used to obtain the information contained

in the affidavit constituted an unreasonable search and seizure.

C.

The decisions of the United States Supreme Court, the Tennessee Supreme Court,

and this court have held that, as a general rule, the audio recording of a conversation with

a suspect or the transmitting of the conversation to a law enforcement officer at a remote

location, which is simultaneously monitored and recorded by the officer, does not violate

the Fourth Amendment to the United States Constitution or Article I, § 7 of the Tennessee

Constitution. United States v. White, supra; Lopez v. United States, 373 U.S. 427, 83

S.Ct. 1381, 10 L.Ed.2d 462 (1963); On Lee v. United States, supra; State v. Jones, 598

S.W.2d 209, 221-24 (Tenn. 1980); State v. Crawford, 783 S.W.2d 573 (Tenn. Crim. App.),

per. app. denied (Tenn. 1989). Of course, this evidence may be inadmissible if there is

a Fourth Amendment violation or the violation of another constitutional right.

When the suspect permits a confidential informant into his residence, and he freely

and voluntarily talks to the confidential informant, the suspect has no expectation of privacy

regarding the conversation. United States v. White, 401 U.S. at 751-52, 91 S.Ct. at 1125-

26, 28 L.Ed.2d at 459; see Lopez, 373 U.S. at 438, 83 S.Ct. at 1387, 10 L.Ed.2d at 470.

As the United States Supreme Court said in Hoffa, no matter how strongly the suspect may

trust a person, the suspect’s expectations of trust are not protected by the Fourth

Amendment when the suspect discovers his apparent colleague is a confidential informant

working with a law enforcement officer. See White, 401 S.W.2d at 749, 91 S.Ct. at 1129,

15
28 L.Ed.2d at 457.

In On Lee v. United States,1 Chin Poy, the confidential informant,2 was an old

acquaintance and former employee of On Lee. Agent Lee, of the Bureau of Narcotics,

wired Chin Poy with a small microphone and an antenna along one arm. Chin Poy went

inside On Lee’s business and engaged him in conversation. Agent Lee remained outside

the building. He could hear the conversation on a receiver, and he could see Chin Poy and

On Lee talking through a large window in front of the business. On a second occasion,

Chin Poy engaged On Lee in a conversation in New York City. On Lee made “damaging

admissions” during his conversations with Chin Poy. The United States Supreme Court

ruled “[t]he conduct of Chin Poy and agent Lee did not amount to an unlawful search and

seizure such as is prescribed by the Fourth Amendment.” 343 U.S. at 751, 72 S.Ct. at

971.

In Lopez v. United States, an Internal Revenue Service agent advised Lopez he

owed the United States excise taxes for several years. Lopez gave the agent $420 in cash

and promised the agent and his family certain amenities at his motel. Lopez advised the

agent he wanted him to return to his motel on an agreed date. The agent reported what

had occurred to his superiors. He was advised to go to the motel and meet with Lopez on

the date set by Lopez. When the agent went to meet Lopez, he was equipped with a

pocket wire recorder. All of the conversations between Lopez and the agent were

recorded. Lopez contended the conversations in his office were seized within the meaning

of the Fourth Amendment, and sought to suppress the statements as evidence. The

Supreme Court rejected his Fourth Amendment claim, and ruled the recorded

conversations were properly admitted into evidence. 373 U.S. at 438, 83 S.Ct. at 1387.

In United States v. White, Jackson, a government informant, was wired with a radio

transmitter when he engaged White in conversation on eight separate occasions. The

agents who wired Jackson monitored all of the conversations through a radio receiver.

1
In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the
United States Supreme Court concluded the holding in On Lee was sound. However, the
Court said the reasoning that there was no trespass was no longer applicable in view of
its holding in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
2
The prosecution referred to Chin Poy as “an undercover agent.” The defense
referred to him as “a stool pigeon.”

16
These conversations were introduced at White’s subsequent trial for illegal narcotics

transactions. The Supreme Court held there was no violation of the Fourth Amendment.

The Court, quoting Hoffa, said “‘no interest legitimately protected by the Fourth

Amendment is involved,’” because the Fourth Amendment “affords no protection to ‘a

wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing

will not reveal it.’” 401 U.S. at 749, 91 S.Ct. at 1125, 28 L.Ed.2d at 457. The Court further

noted:

No warrant to “search and seize” is required in such
circumstances [found in Hoffa], nor is it when the Government
sends to defendant’s home a secret agent who conceals his
identity and makes a purchase of narcotics from the accused,
Lewis v. United States, . . . or when the same agent,
unbeknown to the defendant, carries electronic equipment to
record the defendant’s words and the evidence so gathered is
later offered in evidence. Lopez v. United States . . . .

401 U.S. at 749, 91 S.Ct. at 1125, 28 L.Ed.2d at 457. The Court found the Fourth

Amendment was not violated. The Court concluded that if the circumstances found in

Hoffa and Lewis did not violate the Fourth Amendment, it is not violated by “a

simultaneously recording of the same conversations made by the agent or by others from

transmissions received from the agent to whom the defendant is talking and whose

trustworthiness the defendant necessarily risks.” 401 U.S. at 751, 91 S.Ct. at 1126, 28

L.Ed.2d at 458.

The Tennessee Supreme Court has held the recording of conversations between

a confidential informant and the accused does not violate either the federal or the state

constitution. State v. Jones, 598 S.W.2d 209, 221-24 (Tenn. 1980). In Jones, the agent

was wired and the law enforcement officer monitored the conversation between the

accused and the confidential agent. The court held these recorded conversations were

admissible as evidence.

This court has also held the recording of conversations between a confidential

informant and an accused does not violate either the federal or the state constitution. In

Woodson v. State, 579 S.W.2d 893 (Tenn. Crim. App. 1978), cert. denied (Tenn. 1979),

there were taped telephone conversations between the confidential informant and the

defendant. Also, the confidential informant was provided with a small tape recorder to

17
record additional conversations. This court held the recorded conversations were

admissible as evidence because there was no constitutional violation. Later, in State v.

Crawford, 783 S.W.2d 573 (Tenn. Crim. App.), per. app. denied (Tenn. 1989), the

confidential informant wore a body wire when he engaged the defendant in conversation.

The conversation was monitored and recorded by a law enforcement officer. This court

held the recorded conversation was admissible as evidence. See State v. Mosher, 755

S.W.2d 464 (Tenn. Crim. App.), per. app. denied (Tenn. 1988); State v. Morris, 666

S.W.2d 471 (Tenn. Crim. App. 1983), per app. denied (Tenn. 1984).

Contrary to the defendant’s contention, the information received by the deputy

sheriff by monitoring and recording the conversations between the defendant and the

confidential informants was not the result of an unreasonable search and seizure. The

information obtained from these conversations could be used to establish probable cause

for the issuance of a warrant authorizing the search of the defendant’s residence, the

premises where the two drug transactions occurred.

This issue is without merit.

III.

The defendant contends the description of the premises to be searched contained

in the search warrant was insufficient to pass constitutional muster pursuant to the Fourth

Amendment to the United States Constitution and Article I, Section 7 of the Tennessee

Constitution. The description of the premises contained in the search warrant is:

To be searched for in accordance with the laws of the State of
Tennessee upon the following described property, namely, Rt.
1, Box 276, Counce, Tenn. 38326 (911 address is 210
Preacher Drive, Counce Tn. 38326). Beginning at the
intersection of Highway 57 and Red Sulpher Road in Counce
Tenn. proceed South [o]n Red Sulpher Road to the 1st road on
the right which is Preacher Road, then proceed right (west) on
the nest (sic) road which is Campbell’s Old Mill Road. Then
right to the 1st driveway which is the residence to be searched.
There is a black mailbox at the end of the driveway with the
number “276" on it. The house is a red brick single story
house with gray trim and a black shingle roof. There is an in-
ground swimming pool in the back yard enclosed by a wooden
fence.

18
The question this court must resolve is whether the description of the defendant’s

residence, the property to be searched, was sufficient to pass constitutional muster.

A.

The Fourth Amendment to the United States Constitution requires that a search

warrant must particularly describe the premises to be searched. This amendment states:

The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue but
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the
persons or things to be seized (emphasis added).

The Framers of the Constitution included the phrase “particularly describing the place to

be searched, and the person or things to be seized” to prevent the issuance of general

warrants, a practice which was prevalent during the colonial era of this country. See T.

Taylor, Two Studies in Constitutional Interpretation, pp. 23-50 (1969) (Taylor); Charles H.

Whitebread & Christopher Slobogin, Criminal Procedure, § 5.04 at p. 152 (3d ed.

1993)(Whitebread).

The United States Supreme Court has ruled the Fourth Amendment is enforceable

against the states through the Due Process Clause of the Fourteenth Amendment. Mapp

v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961). Thus, an

accused has a Fourth Amendment right to challenge a search warrant which fails to

“particularly describe the place to be searched.”

Article I, Section 7 of the Tennessee Constitution governs search warrants in this

jurisdiction. This constitutional provision states:

That the people shall be secure in their persons, houses,
papers and possessions, from unreasonable searches and
seizures; and that general warrants, whereby an officer may be
commanded to search suspected places, without evidence of
the fact committed, or to seize any person or persons not
named, whose offences are not particularly described and
supported by evidence, are dangerous to liberty and ought not
be granted.

19
Although this provision does not state on its face the property or premises must be

particularly described in the search warrant, the appellate courts have held this provision

mandates a particular description of the property or premises to be searched. State v.

Bostic, 898 S.W.2d 242, 245-46 (Tenn. Crim. App. 1994), per. app. denied (Tenn. 1995);

State v. James C. Nelson and Alicia Nelson, Davidson County No. 01-C-01-9505-CC-

00127, 1996 WL 233987 (Tenn. Crim. App., Nashville, May 9, 1996), per. app. denied

(Tenn. October 28, 1996). The prohibition against the issuance of general warrants

necessarily embraces the need to “particularly describ[e] the place to be searched, and the

persons or things to be seized.” See Taylor at 23-50; Whitebread, § 5.04 at 152. This

requirement and the probable cause requirement are the ingredients which prevent the

issuance of general warrants.

This requirement is also statutorily mandated. Tennessee Code Annotated § 40-6-

103 provides that “[a] search warrant can only be issued on a probable cause, supported

by affidavit, naming or describing the person and particularly describing the property, and

the place to be searched.” See Tenn. Code Ann. § 40-6-106. In Dolen v. State, 187 Tenn.

663, 216 S.W.2d 351 (1948), the supreme court said:

It is expressly required. . .[by the statute] that the search
warrant “particularly” describe “the place to be searched.” The
word “particularly” must be deemed to have been intentionally
used by the legislature. The use of that word makes it clear
that the legislature intended the search warrant to be clear of
ambiguity as to the place to be searched, and that this word
was used in response to the constitutional prohibition against
an unreasonable search.

187 Tenn. at 667, 216 S.W.2d at 353.

This requirement is mentioned in Rule 41(c), Tennessee Rules of Criminal

Procedure. The rule states in part: “If the magistrate is satisfied that grounds for the

application exists . . . [he] shall issue a warrant identifying the property and naming or

describing the person or place to be searched.”

The purpose of requiring the property or premises to be particularly described in the

search warrant is twofold. First, this requirement protects the accused from being

subjected to an unreasonable search and/or seizure. Williams v. State, 196 Tenn. 630,

632, 270 S.W.2d 184, 185 (1954). Second, this requirement “prevent[s] the officer from

20
searching the premises of one person under a warrant directed against those of another.”

Squires v. State, 525 S.W.2d 686, 690 (Tenn. Crim. App.), cert. denied (Tenn. 1975).

The question this court must next consider is what constitutes a constitutionally

permissible description of the property or premises to be searched.

B.

The issue raised by the defendant has been addressed by numerous Tennessee

Supreme Court and Court of Criminal Appeals decisions. The reported and unreported

decisions are legion.

In State v. Smith, 868 S.W.2d 561 (Tenn. 1993), cert. denied, 513 U.S. 960, 115

S.Ct. 417, 130 L.Ed.2d 333 (1994), the supreme court said that “a description which

particularly points to a definitely ascertainable place so as to exclude all others, and

enables the officer to locate the place to be searched with reasonable certainty without

leaving it to his discretion” is required to satisfy the constitutional mandates. 3 868 S.W.2d

at 572. See Bostic, 898 S.W.2d at 245. The most cited and quoted case is Hatchett v.

State, 208 Tenn. 399, 346 S.W.2d 258 (1961). In Hatchett, the supreme court said: “The

rule is that the property to be searched must be particularly described in the search warrant

before it is valid. The test is whether, or not, the description will enable an officer to locate

the place to be searched with reasonable certainty.” 208 Tenn. at 401, 346 S.W.2d at 259.

The conclusion which may be drawn from the prior decisions is that the description

of the property or premises to be searched must be sufficient to permit a reasonable

person to take the search warrant, as prepared, and go immediately to the premises to be

searched without difficulty or without asking directions regarding the location of the

property. Williams, 196 Tenn. at 632, 270 S.W.2d at 185. See Thompson v. State, 197

Tenn. 112, 114-15, 270 S.W.2d 379, 380-81 (1954).

This court must now apply the test created by the decisions of the appellate courts

to the description contained in the search warrant authorizing the search of the defendant’s

3
This language was first used in the case of Thompson v. Carson, 186 Tenn. 170,
173, 208 S.W.2d 1019, 1020 (1948).

21
residence.

C.

The description contained in the search warrant is sufficient to pass constitutional,

statutory and regulatory muster. See Norton v. State, 207 Tenn. 656, 659, 343 S.W.2d

361, 362 (1961). The description told the officers how to reach the defendant’s residence

and provided a description of the residence, including the color of the bricks, the color of

the trim, the presence of a swimming pool located in the backyard behind a wooden fence,

the color of the mailbox, and the presence of the number “276" on the exterior of the

mailbox. The warrant states the address of the premises is Route 1, Box 276, and the

(911) address is 210 Preacher Drive.

This court is of the opinion a reasonably prudent law enforcement officer could find

the defendant’s residence immediately and without difficulty by following the description

of the premises contained in the search warrant. It must be remembered that the

description of the property does not have to adhere to the same minuscule detail which a

deed must contain when there is a transfer of real property. Bostic, 898 S.W.2d at 245.

This issue is without merit.

IV.

The defendant contends the trial court committed error of prejudicial dimensions by

failing to order the district attorney general to grant him pretrial diversion. He argues he

filed a proper application for pretrial diversion, the state failed to answer or respond to the

application, and he concludes the trial court should have granted him pretrial diversion for

this reason. The State of Tennessee contends this issue has been waived. See State v.

Wilson, 713 S.W.2d 85, 86-87 (Tenn. Crim. App.), per. app. denied (Tenn. 1986).

The first time this issue was raised was in the defendant’s motion for a new trial.

The trial court noted the defendant never brought this issue to the court’s attention prior

to trial, and he did not ask for a hearing on the issue. It is undisputed the district attorney

general did not file a response to the defendant’s application. The assistant district

22
attorney general stated: “I did not really consider that a serious application at that time, I

don’t guess.”

First, it was the duty of the defendant to bring this matter to the attention of the trial

court prior to trial. The trial court could either (a) order the district attorney general to file

a response to the application or (b) hear the matter without the benefit of the district

attorney general’s response. Since the defendant failed to take the necessary steps to

bring this matter to the trial court, the defendant is not entitled to relief. Tenn. R. App. P.

36(a). Second, the defendant was required to raise this issue prior to trial by either filing

an interlocutory appeal pursuant to Tenn. R. App. P. 9, or an extraordinary appeal pursuant

to Tenn. R. App. P. 10. See State v. Bowlin, 871 S.W.2d 170, 173 (Tenn. Crim. App.

1993); State v. Nabb, 713 S.W.2d 685, 686 (Tenn. Crim. App. 1986); Wilson, 713 S.W.2d

at 86-87; State v. McDuff, 691 S.W.2d 569, 570 (Tenn. Crim. App. 1984) per. app. denied

(Tenn. 1985); State v. Montgomery, 623 S.W.2d 116, 118 (Tenn. Crim. App.), per. app.

denied (Tenn. 1981). The failure to pursue an interlocutory or extraordinary appeal in

pretrial diversion matters results in the waiver of the issue. Wilson, 713 S.W.2d at 86-87.

Today, a defendant may appeal the denial of pretrial diversion as part of the appeal

as of right, Tenn. R. App. P. 3(b). Rule 38, Tennessee Rules of Criminal Procedure, states

in part “the defendant may pursue an interlocutory appeal pursuant to either Rule 9 or Rule

10 of the Tennessee Rules of Appellate Procedure. In the event the defendant does not

pursue an interlocutory appeal, the defendant shall have the right to appeal the decision

of the trial court denying the petition for writ of certiorari pursuant to Tennessee Rule of

Appellate Procedure 3(b) following the entry of the final judgment in the trial court.” This

rule became effective on July 1, 1997. See Tenn. R. Crim. P. 38 advisory commission

comments.

The Tennessee Supreme Court has applied rules of procedure retroactively in the

past. In State v. Enochs 823 S.W.2d 539, 540-41 (Tenn. 1991), the supreme court held

Tenn. R. Crim. P. 33(f), the thirteenth juror rule, should be applied retroactively to cases

which were tried before the rule became effective and were pending in the appellate courts

on the effective date of the rule. Enochs was followed by the supreme court in State v.

Barone, 852 S.W.2d 216, 219 (Tenn. 1993). However, it is questionable whether Enochs

23
and Barone should be applied to the facts in this case. Unlike the defendants in Enochs

and Barone, who were not entitled to the benefit of the thirteenth juror rule prior to the

effective date of the rule, the defendant here had the right to appellate review pursuant to

Tenn. R. App. P. 9 or Tenn. R. App. P. 10.

Assuming arguendo Tenn. R. Crim. P. 38 could be applied retroactively in this

case pursuant to the rationale of Enochs and Barone, this court would not be able to

review the issue. As previously noted, the defendant did not bring this matter to the

attention of the trial court prior to trial. Thus, there was no hearing in the trial court, and,

as a result, there is no record for this court to review. It is elementary that an appellate

court may only review what is contained in the record -- not what might have been or

should have been included in the record. Dearborne v. State, 575 S.W.2d 259, 264 (Tenn.

1978). The allegations contained in an application for pretrial diversion are not evidence

and cannot replace the necessity of a hearing and the memorializing of the hearing by a

transcript of the hearing. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App.

1993), per. app. denied (Tenn. 1994); State v. Aucoin, 756 S.W.2d 705, 716 (Tenn. Crim.

App.), cert. denied, 489 U.S. 1084, 109 S.Ct. 1541, 103 L.Ed.2d 845 (1989); State v.

Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App.), per. app. denied (Tenn. 1988).

This issue is without merit.

V.

The trial court sentenced the defendant to serve one year in the Hardin County Jail

with the balance of the sentences to be served pursuant to the Tennessee Community

Corrections Act of 1985. Tenn. Code Ann. §§ 40-36-101, et. seq. The defendant contends

his entire sentence should be served pursuant to the Act. He also contends the trial court

abused its discretion by refusing to apply a mitigating factor, Tenn. Code Ann. § 40-35-

113(1). The State of Tennessee argues the sentence imposed by the trial court was

proper given the defendant’s prior criminal record and the circumstances of the offenses.

Furthermore, the trial court properly rejected the mitigating circumstance due to the nature

of the offense and the prior decisions of this court.

24
 A.

When an accused challenges the length and manner of service of a sentence, it is

the duty of this court to conduct a de novo review on the record with a presumption that

“the determinations made by the court from which the appeal is taken are correct.” Tenn.

Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative showing

in the record that the trial court considered the sentencing principles and all relevant facts

and circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption

does not apply to the legal conclusions reached by the trial court when sentencing the

accused or to the determinations made by the trial court which are predicated upon

uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994).

However, this court is required to give great weight to the trial court’s determination of

controverted facts as the trial court’s determination of these facts is predicated upon the

witnesses’ demeanor and appearance while testifying.

In conducting a de novo review of a sentence, this Court must consider (a) any

evidence received at the sentencing hearing, (b) the presentence report, (c) the principles

of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e) the

nature and characteristics of the offense, (f) any mitigating or enhancing factors, (g) any

statements made by the accused in his own behalf, and (h) the accused’s potential or lack

of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210; State

v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).

The party challenging the sentences imposed by the trial court has the burden of

establishing that the sentences are erroneous. Sentencing Commission Comments to

Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311. In

this case, the defendant has the burden of illustrating the sentences imposed by the trial

court are erroneous.

B.

The trial court found one enhancement factor, namely, the defendant has a history

of prior convictions or criminal behavior. Tenn. Code Ann. § 40-35-114(1). The defendant

25
was previously convicted of public intoxication, driving without a license, possession of

drug paraphernalia, driving while under the influence, and possession of marijuana. In

addition, the defendant told the presentence officer he had a history of drug use. Of

course, each time he obtained drugs for his personal use he committed a separate crime.

The defendant asked the trial court to find one mitigating factor, namely, his conduct

neither caused nor threatened serious bodily injury. Tenn. Code Ann. § 40-35-113(1). The

court refused to find this mitigating factor in this case. This court has held this factor

should not be applied when the defendant is convicted of an offense involving cocaine.

State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim. App.), per. app. denied (Tenn. 1994);

State v. Michael Anthony Pike, Henry County No. 02-C-01-9509-CC-00261, 1997 WL

13740 (Tenn. Crim. App., Jackson, January 16, 1997), per. app. denied (Tenn. September

15, 1997); State v. Larry D. Jones, Davidson County No. 01-C-01-9112-CR-00368, 1992

WL 146719 (Tenn. Crim. App., Nashville, June 30, 1992), per. app. denied (Tenn. October

26, 1992). See State v. Kenny Cheatham, Williamson County No. 01-C-01-9506-CC-

00196, 1996 WL 310405 (Tenn. Crim. App., Nashville, June 11, 1996). Thus, the trial

court properly refused to apply this mitigating factor.

C.

The defendant also contends the trial court abused its discretion by refusing to

permit him to serve the entire sentences pursuant to the Community Corrections Act. The

trial court required the defendant to serve twelve months of his eighteen-month sentence

in the county jail with the balance of the sentence served pursuant to the Act.

The defendant was convicted of a Class B felony and a Class E felony. As a

practical matter, this issue must rise or fall upon the Class B felony. While there is a

presumption the defendant is a favorable candidate for alternative sentencing as to a Class

E felony, there is no such presumption when the defendant is convicted of a Class B

felony. Tenn. Code Ann. § 40-35-102(6)

The trial court did not abuse its discretion by requiring the defendant to serve a

portion of his sentence. The defendant has been convicted of several criminal offenses.

26
He also has a history of criminal behavior. He made two sales of illicit narcotics. He

apparently trafficked in illicit narcotics for an extended period of time. He candidly admitted

to the presentence officer that he was a user of illicit narcotics.

This issue is without merit.

_________________________________________________
JOE B. JONES, PRESIDING JUDGE

CONCUR:

______________________________________
JOHN H. PEAY, JUDGE

______________________________________
JOE G. RILEY, JUDGE

27