State v. Thornton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
JULY 1999 SESSION October 19, 1999

Cecil Crowson, Jr.
Appellate Court Clerk

STATE OF TENNESSEE, * No. 03C01-9811-CC-00384

Appellee, * COCKE COUNTY

VS. * Hon. Ben W. Hooper, II, Judge

JIMMY THORNTON, * (Sale of Cocaine, Conspiracy to Deliver)

Appellant. *

For Appellant: For Appellee:

Herbert S. Moncier Paul G. Summers
and David W igler, Attorneys Attorney General & Reporter
Suite 775, Nations Bank Center
550 Main Avenue Ellen H. Pollack
Knoxville, TN 37902 Assistant Attorney General
(on appeal) Criminal Justice Division
425 Fifth Avenue North
William Leibrock, Attorney Nashville, TN 37243
339 East Main Street
Newport, TN 37821 Charles Atchley, Jr.
Assistant District Attorney
and 125 Court Avenue, Suite 301-E
Sevierville, TN 37862
Richard Talley, Attorney
145 East Main Street
Dandridge, TN 37725
(at trial)

OPINION FILED:__________________________

REVERSED AND REMANDED

GARY R. WADE, PRESIDING JUDGE
 OPINION

The defendant, Jimmy Thornton, was convicted of two counts of sale

of cocaine and two counts of conspiracy to sell cocaine. The trial court imposed a

Range II sentence of twenty years on each count. Three of the four sentences are

to be served consecutively; the effective sentence is, therefore, sixty years. Fines

totaled $800,000.

In this appeal of right, the defendant presents the following issues for

review:

(I) whether the evidence was sufficient to support the
defendant's convictions for conspiracy to sell cocaine;

(II) whether the trial court erred by denying the
defendant's motion for a mistrial based on improper
argument made by the prosecuting attorney;

(III) whether the trial judge should have recused;

(IV) whether the trial court erred by denying the
defendant's motion challenging the jury venire;

(V) whether the defendant is entitled to a new trial based
on the rule against multiplicity;

(VI) whether the defendant has been subjected to
double jeopardy and due process violations;

(VII) whether the trial court erroneously instructed the
jury that the defendant could be found guilty if he acted
recklessly;

(VIII) whether the trial court erred by instructing the jury
on the range of punishment; and

(IX) whether the imposition of consecutive sentences
was improper.

Because we find that the trial court erred in its instructions to the jury,

we reverse the convictions and remand for a new trial.

2
 On January 5, 1995, Tom Davidson, who was incarcerated in the

Grainger County jail, made a telephone call to the defendant to arrange for the

purchase of illegal drugs. Davidson had previously contacted Mike Hannan, an

officer with the Tennessee Highway Patrol Criminal Investigation Division, and

offered to assist in making purchases of illegal drugs in Cocke County. Davidson

wished to assist law enforcement officials in an investigation of the defendant in

order to get "out of the Grainger County Jail." He was also upset because the

defendant had married his ex-wife. One day after his first call, Davidson made a

second call to the defendant, who arranged for his son, Mark Thornton, to meet with

Davidson for a cocaine transaction. The price for one ounce (27.3 grams) was set

between $1,100 to $1,200. Each of the two telephone calls was recorded. On the

following day, Davidson and an undercover agent, Tom Conner, purchased from the

defendant’s son 27.4 grams of cocaine for $1,300.

On January 10, 1995, Davidson and Agent Conner called the

defendant and arranged a second cocaine purchase. The defendant directed that

the two men meet his son, Mark, at the Wal-Mart parking lot in Newport and

described the car that his son would be driving. As arranged, Mark Thornton

delivered 53.4 grams of cocaine to Conner and Davidson for the price of $2,600.

The defendant, who has been blind since 1981, was indicted by the

Cocke County Grand Jury for two counts of sale, two counts of delivery, and two

counts of conspiracy to sell and deliver cocaine. After the trial judge rejected a plea

agreement reached by the state and the defendant's trial counsel, the case

proceeded to trial. The defendant was found guilty of all six offenses.

The trial court, which properly concluded that the two convictions for

3
sale of cocaine merged with the two convictions for delivery of cocaine, sentenced

the defendant to twenty years for each of the four remaining counts. Because three

of the counts were ordered to be served consecutively, the effective sentence was

sixty years.

I

Initially, the defendant contends that the evidence was insufficient to

sustain his conviction for conspiracy. Specifically, he claims that the state failed to

prove that he personally delivered and sold cocaine as set forth in the indictment.

He reasons that there was no evidence of an overt act, as required by law to support

the convictions.

On appeal, of course, the state is entitled to the strongest legitimate

view of the evidence and all reasonable inferences which might be drawn therefrom.

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the

witnesses, the weight to be given their testimony, and the reconciliation of conflicts

in the proof are matters entrusted to the jury as trier of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is

challenged, the relevant question is whether, after reviewing the evidence in the light

most favorable to the state, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d

405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

The applicable statutes provide as follows:

It is an offense for a defendant to knowingly:
(1) Manufacture a controlled substance;
(2) Deliver a controlled substance;
(3) Sell a controlled substance; or
(4) Possess a controlled substance with intent to
manufacture, deliver or sell such controlled substance.

4
 ***

The offense of conspiracy is committed if two (2) or more
people, each having the culpable mental state required
for the offense which is the object of the conspiracy and
each acting for the purpose of promoting or facilitating
commission of an offense, agree that one (1) or more of
them will engage in conduct which constitutes such
offense.

Tenn. Code Ann. § 39-17-417; Tenn. Code Ann. § 39-12-103(a). The commission

of an overt act in furtherance of the conspiracy is an essential element of the

offense. Tenn. Code Ann. § 39-12-103(d); State v. Perkinson, 867 S.W.2d 1 (Tenn.

Crim. App. 1992).

The defendant contends that because he is blind, no rational trier of

fact could have found that he could deliver cocaine. The state disagrees.

'''Deliver' or 'delivery' means the actual, constructive, or attempted

transfer from one person to another of a controlled substance, whether or not there

is an agency relationship." Tenn. Code Ann. § 39-17-402(6). Because the

defendant is blind, he might require assistance in an illegal drug transaction. Here,

however, the evidence shows that the defendant orchestrated both transactions. He

arranged the subsequent meetings between his son and the purchasers. Although

the defendant directed that his son meet with Davidson and Agent Conner to

exchange the cocaine and the money, there is ample evidence to conclude that, at a

minimum, a constructive delivery took place. In our view, the evidence was

sufficient.

II

The defendant next contends that the trial court erred by failing to

declare a mistrial based on the following statements made by the prosecuting

5
attorney during closing argument:

Ladies and gentlemen, when you came in we talked to
you a little bit about burden of proof, and the fact that it
was on me. And that I was going to have to show you
what evidence that we had, and he had to assert no
defense whatsoever if we didn't prove our case. Of
course, if we did come in and show a case, it would
certainly be to their benefit that they show some type of
defense. I submit to you, ladies and gentlemen, there
has not been any defense asserted here whatsoever. . . .
There is no defense, there is nothing to it.

***

Now they made a big deal about our crime lab, which I’m
very proud of our crime lab. They do an excellent job.
Firstly, [defense counsel] wants to know why there were
no fingerprints on that? Ladies and gentlemen, that bag
of cocaine went from the residence of Jimmy Thornton
. . . to Mark Thornton, to Tom Davidson, to Tom Conner,
to the TBI Crime Lab. Why, there’s more prints on that
bag than this table.

***

I'm always flattered when somebody like [the defendant's
trial counsel] says I come in here and beat up on them
because, quite frankly, it’s just me. And I think it's rather
ridiculous to think that I'm going to run over the top of two
high priced, slick lawyers . . . . Secondly, [defense
counsel] wants to know what happened to the money.
Well, I'd like to know where the money is too. I'd say it's
probably everywhere. I imagine Mr. Thornton spends a
lot of money. I know he’s got two expensive lawyers
there.

(emphasis added). Defense counsel objected only to the prosecuting attorney's

statement that there were "more prints on that bag than this table." The failure to

object to the other remarks results as a waiver on appeal. Tenn. R. App. P. 36(a).

In general, closing argument is subject to the trial court's discretion.

Counsel for both the prosecution and the defense should be permitted wide latitude

in arguing their cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn.

1994). Arguments must be temperate, predicated on evidence introduced during

6
the trial, relevant to the issues being tried, and not otherwise improper under the

facts or law. State v. Middlebrooks, 995 S.W.2d 550 (Tenn. 1999).

It is never proper for a prosecuting attorney to comment upon a

defendant's decision not to testify. Griffin v. California, 380 U.S. 609. 615 S. Ct.

1229 (1995). To do so constitutes misconduct. Id. at 615. The ultimate test to

determine if that misconduct is reversible error depends on whether it had a

prejudicial effect upon the verdict. Harrington v. State, 215 Tenn. 338, 385 S.W.2d

758 (1965). In making that determination, courts must consider five factors:

(1) the conduct complained of in light of the facts and
circumstances of the case;

(2) the curative measures undertaken;

(3) the intent of the prosecutor in making the improper
remarks;

(4) the cumulative effect of the improper conduct and
any other errors in the record;

(5) the relative strength or weakness of the case.

Judge v. State, 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976).

In our view, the prosecuting attorney's comments regarding the

defendant's failure to present a defense were not improper. Taken in context, the

prosecuting attorney was referring only to the defendant's failure to refute the state's

case, not to the defendant's failure to testify. It has long been established that a

district attorney general may argue that the state's evidence is uncontradicted. This

argument does not violate the rule prohibiting comments on the failure of the

defendant to testify in support of his defense. State v. Rice, 638 S.W.2d 424

(Tenn. Crim. App. 1982). Furthermore, the jury instructions correctly stated the

burden of proof and lessened any impact the prosecuting attorney's statements may

have had. Moreover, the tape recorded evidence against the defendant made the

7
case particularly strong. Thus, even if the statements were improper, application of

the factors set forth in Judge would lead us to the conclusion that the prosecutor's

statements did not have a prejudicial affect upon the verdict.

The comments regarding the crime laboratory, to which no objection

was made, were inappropriate. It is a violation of the Code of Professional

Responsibility, DR 7-106(C)(4) for lawyers engaged in trial to express their personal

opinion about any issue involved in the justice of the cause they represent. See

State v. Hall, 976 S.W.2d 121 (Tenn. 1998). Certainly, a lawyer should not assert

his or her personal opinion as to the credibility of a witness, or as to the accused's

guilt or innocence. State v. Henley, 774 S.W.2d 908, 911 (Tenn. 1989). Whether a

statement qualifies as misconduct often depends upon the specific terminology

used. United States v. Stulga, 584 F.2d 142, 147 (6 th Cir. 1978) (stating "The use of

the words 'submit' are not the equivalent of expressing an opinion."). In this case,

the prosecuting attorney essentially vouched for the effectiveness of the crime lab,

stating that he was "very proud of our crime lab." He further stated that "[t]hey do an

excellent job." There were no prefatory words, such as " submit," or qualifying

terms, such as "In my view." Rather, the statement that the crime lab does "an

excellent job," qualified as a personal opinion made before the jury and in

contravention of the rule. The statements would not, however, constitute reversible

error under the Judge test. Likewise, the statement of opinion by the prosecutor

that "there’s more prints on that bag than this table" was harmless in the context of

the entire record of the trial.

The prosecutor's statements about the defendant’s ability to pay "two

high priced, slick lawyers" were improper. Generally, arguments calling attention to

a defendant's wealth or means, ability to retain counsel, to pay counsel large fees,

8
or to finance his or her own defense, are highly prejudicial. State v. Norris, 874

S.W.2d 590 (Tenn. Crim. App. 1993). See also Goff v. Commonwealth, 241 Ky.

428, 44 S.W.2d 306, 308 (1931) (stating that a "reference to . . . the ability of the

defendant to pay a fee was improper. The defendant was charged with murder, and

not with being wealthy, and no reference should have been made to his station in

life."). In Norris, the prosecuting attorney suggested that the jury should not let the

defendant "buy his way out of the case." Id. at 598. Defense counsel lodged an

objection which was overruled by the trial court. In that case, upon application of the

Judge factors, this court concluded that the objection should have been sustained,

but that the prosecutor's statement, while "improper and intemperate," was harmless

beyond a reasonable doubt. Id. at 598-99. Had there been a contemporaneous

objection to the snide remarks about defense counsel, the trial court would have

likely admonished the prosecutor and provided curative instructions to the jury. But,

such personal references usually tend to discredit, rather than serve, the cause of

the state. By application of the Judge factors, particularly the relative strength of

the state’s case, we must conclude that the improper reference to defense counsel

more than likely did not affect the verdict to the prejudice of the defendant. The

following language from Norris cautions attorneys about the impropriety of such

commentary:

By not reversing this conviction for this improper
argument, the court is concerned that lawyers will
continue to make arguments ignoring appropriate rules
governing final argument. Improper argument threatens
the verdict. Both the Supreme Court of Tennessee and
this court have reversed for improper argument. . . . The
Supreme Court has suggested that offending argument
should be the subject of disciplinary action against the
lawyer . . . Still another court has suggested that
disciplinary action would be far more effective than "the
disapproving remarks in a score of appellate
opinions. . . ." Suffice it to say that a lawyer is mistaken if
he or she thinks that improper argument will not threaten
the conviction or judgment or result in disciplinary
sanctions against the offending lawyer.

9
Id. at 599 (citations and footnotes omitted). 1

In reviewing the record as a whole, we cannot find that the cumulative

effect of the prosecutor's improper argument warrants relief. The closing remarks

made on behalf of the state did not rise to the level of prejudicial error.

III

The defendant next contends that the trial judge erred by failing to

recuse himself. The defendant requested recusal just prior to the sentencing phase

of the trial based on the trial judge's prior representation and personal knowledge of

the defendant. At the sentencing hearing, the trial judge stated as follows:

I may have represented Mr. Thornton in some of these
convictions, or possibly the one that was not— did not
come to a conviction, but I believe in '87 I may have
represented him on a cocaine possessions charge. And
that charge, I believe, Mr. Thornton, was actually placed
on a Retired Docket in the General Sessions Court.

Additionally, the trial judge acknowledged having represented the defendant in a

real estate matter and he recalled having recused himself in a divorce case because

of his acquaintance with the defendant and his wife at that time. The trial judge also

commented that he knew the defendant's mother, his children, and his step-father.

A trial judge should grant a motion to recuse if he or she has any doubt

1
See State v. Donald Ray Middlebrooks, 995 S.W .2d 550 (Tenn. 1999):

[I]n addition to any action taken by the appellate courts, the
professional misconduct of prosecutors is more efficiently and
authoritatively addressed at the trial level where courts are in a better
position to view the conduct, assess its impact, and choose the
appropriate action to ensure a fair trial. For example, the trial judge
can order the cessation of offending statem ents and can give
curative jury instructions. In egregious cases, the trial judge may sua
sponte stop a prosecutor's prejudicial argument. In addition, the trial
courts may consider direct sanctions to deter prosecutorial
misconduct, including contempt citations, fines, and
recommendations for disciplinary action to the Board of Professional
Responsibility. We encourage the trial courts to consider these
sanction s where the m iscondu ct is flagran t.

10
as to his or her ability to preside impartially in a criminal case, or whenever he or she

believes that his or her impartiality can reasonably be questioned. Lackey v. State,

578 S.W.2d 101, 104 (Tenn. Crim. App. 1978). Our supreme court has held that a

judge is not disqualified from hearing a case because he or she has knowledge of

the facts of a case. State ex rel Phillips v. Henderson, 220 Tenn. 701, 423 S.W.2d

489, 492 (1968). When a trial judge has no doubt of his or her ability to preside

fairly over the matters presented, there is no need to grant a motion for recusal.

The decision to deny a motion for recusal will be upheld absent an abuse of

discretion. Lackey v. State, 578 S.W.2d 101, 104 (Tenn. Crim. App. 1978).

Here, there is no indication that the trial judge used confidential or

privileged information in sentencing the defendant. It is not uncommon in a small

community for trial judges to be acquainted with litigants. There must be more,

however, before there is a legitimate basis for disqualification. In our view, the trial

judge did not abuse his discretion in denying the defendant's motion for recusal.

Furthermore, the proper time for the defendant to raise the issue of recusal would

have been pre-trial, not prior to sentencing. The record suggests that the defendant

was well aware of his previous contacts with the judge before the trial began. "'[I]f

the facts are known to the party recusing, he is bound to make his objection before

issue joined, and before the trial is commenced, otherwise he will be deemed to

have waived the objection. . . .'" Thompson v. State, 958 S.W.2d 156, 172 (Tenn.

Crim. App. 1997) (quoting Holmes v. Eason, 76 Tenn. 754 (1882)). Having received

an unfavorable verdict, a defendant should not be allowed to mount a belated attack

on the impartiality of the judge at the sentencing phase. See State v. Dustin

Dwayne Davis, No. 03C01-9712-CR-00543, slip op. at 6 (Tenn. Crim. App., at

Knoxville, March 15, 1999). By holding otherwise, "'the parties would be allowed to

experiment with the court by tacit acquiescence, and raise the objection when the

11
result of the trial proved to be unfavorable.'" Thompson, 958 S.W.2d at 172 (citing

Holmes v. Eason, 76 Tenn. 754 (1882)).

IV

Next, the defendant claims that the trial court erred by refusing to

uphold his challenge to the jury venire. He asserts that immediately after the state

completed its questioning of the jury, defense counsel asked the trial court to strike

the entire jury because they had heard that the defendant’s co-conspirator, Mark

Thornton, had made an "agreement" in his case. The record is not clear who made

the statement. There is no transcript of the proceedings during which the jury might

have heard the reference to Mark Thornton. When defense counsel raised the

issue, the trial court adjourned to play the audio tape of the proceedings to

determine precisely what was said and what, if any, effect that statement would

have upon the members of the jury. The trial judge concluded that "[t]he only thing

that was said was that there was 'an agreement' in the case. We were sounding the

Docket. Nothing to indicate at all what the agreement was. . . . The Court sees

absolutely nothing in that statement that would be prejudicial to this defendant." In

the absence of the tape or a transcript of the proceedings, we must presume that

the trial court's conclusion was correct. Smith v. State, 584 S.W.2d 811, 812 (Tenn.

Crim. App. 1979).

V

The defendant next contends that the two indictments, each of which

charged one count of sale of cocaine and one count of delivery of cocaine, violated

the "rule against multiplicity." "Multiplicity is the term applied to the improper

charging of the same offense in more than one count." State v. Desirey, 909

S.W.2d 20 (Tenn. Crim. App. 1995). The rule against multiplicity in indictments is

12
designed to assure that criminal defendants will not receive multiple sentences for a

single offense. State v. Young, 904 S.W.2d 603, 606 (Tenn. 1995).

The defendant alleges that the indictment, which divided the sale and

delivery offense contained in Tenn. Code Ann. § 39-17-417 into separate charges,

created a psychological effect on the jury by suggesting that he had engaged in

more criminal activity than the state could prove. Clearly, the law precludes

convictions for both the sale and delivery of illegal drugs. See, e.g., State v. Willie

B. Jackson, No. 01C01-7902-CR-00054 (Tenn. Crim. App., at Nashville, Apr. 23,

1998). The defendant could have been found guilty of only four offenses. In such

cases, the correct remedy is to set aside the inappropriate convictions. Here, the

trial court did so. Absent harm to the defendant, he is not entitled to a new trial on

the two convictions for sale of cocaine.

VI

The defendant's challenge to his conviction on double jeopardy

grounds can be stated as follows: because he is blind, he necessarily requires the

assistance and cooperation of another person to sell or deliver cocaine. He argues

that a conviction for conspiracy under those circumstances would violate the double

jeopardy clauses of the United States and Tennessee Constitutions. The defendant

also contends that convictions for both conspiracy and the sale or delivery of

cocaine violate due process. The defendant submits that the state's theory of sale,

which was based on a constructive delivery, should not permit an additional

conviction for conspiracy, an offense which also requires the participation of

another. In our assessment, the defendant's convictions for the substantive drug

offenses and the conspiracies to commit those offenses are not the "same offense"

under either a double jeopardy or a due process analysis.

13
 "[T]hree fundamental principles underlie double jeopardy: (1)

protection against a second prosecution after an acquittal; (2) protection against a

second prosecution after conviction; and (3) protection against multiple punishments

for the same offense. . . . The key issue in multiple punishment cases is legislative

intent." State v. Denton, 938 S.W.2d 373, 378-79 (Tenn. 1996). In Denton, the

defendant was convicted of aggravated assault, attempted voluntary manslaughter,

and carrying a weapon. Our supreme court reversed the defendant's convictions for

both possession of a weapon and attempted voluntary manslaughter, holding that

only one of the convictions could be sustained. The court examined the statutory

language of each offense and concluded that the weapons charge was a lesser

included offense of aggravated assault and that the same evidence was required for

conviction of both aggravated assault and attempted voluntary manslaughter.

In determining whether two offenses are the "same" for double

jeopardy purposes, the following test applies:

[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or
only one is whether each provision requires proof of an
additional fact which the other does not.

Blockburger v. United States, 284 U.S. 299, 307, 52 S. Ct. 180, 182 (1932).

The Blockburger test, however, "is not conclusive." Denton, 928

S.W.2d at 379. Courts should also consider whether the same evidence is used to

prove both offenses. In Duchac v. State, 505 S.W.2d 237 (Tenn. 1973), our

supreme court stated the rule as follows:

One test of identity of offenses is whether the same
evidence is required to prove them. If the same evidence
is not required, then the fact that both charges relate to,
and grow out of, one transaction, does not make a single
offense where two are defined by the statutes.

14
Denton, 938 S.W.2d at 380 (quoting Duchac, 505 S.W.2d at 239).

Finally, courts should examine other factors relative to legislative

intent:

(1) whether there were multiple victims involved;
(2) whether several discrete acts were involved; and
(3) whether the evil at which each offense is directed is
the same or different.

Denton, 938 S.W.2d at 381 (footnote omitted).

In our view, the offenses of delivering or selling cocaine and the

offense of conspiracy to deliver or sell cocaine contain different elements. The

applicable statutes provide as follows:

It is an offense for a defendant to knowingly:
(1) Manufacture a controlled substance;
(2) Deliver a controlled substance;
(3) Sell a controlled substance; or
(4) Possess a controlled substance with intent to
manufacture, deliver or sell such controlled substance.
***
The offense of conspiracy is committed if
two (2) or more people, each having the
culpable mental state required for the
offense which is the object of the
conspiracy and each acting for the purpose
of promoting or facilitating commission of
an offense, agree that one (1) or more of
them will engage in conduct which
constitutes such offense.

Tenn. Code Ann. § 39-17-417; Tenn. Code Ann. § 39-12-103(a).

An agreement is not an essential element of the offense of selling or

delivering drugs. Similarly, the actual sale or delivery of drugs is not an element of

the conspiracy offense. By applying the Blockburger test, Tennessee courts have

consistently held that a defendant may be convicted of both conspiracy and the

offense which is the object of the conspiracy without violating double jeopardy

15
principles. See e.g., Turner v. State, 698 S.W.2d 90 (Tenn. Crim. App. 1990).

Application of the "same evidence test" also favors the state in this

case. In order to commit the offense of conspiracy, the state must prove that (1)

each conspirator had the culpable mental state to commit the offense; (2) each

conspirator must act for the purpose of promoting or facilitating the offense; and (3)

at least one of the conspirators must commit an overt act in furtherance of the

agreement. Perkinson, 867 S.W.2d at 4. In order to convict a defendant under

Tenn. Code Ann. § 39-17-417(a), the state must prove that the defendant either

knowingly sold or delivered a controlled substance. Unlike conspiracy, there is no

requirement that the State prove the existence of a prior agreement to commit the

offense defined by Tenn. Code Ann. § 39-17-417(a). The evidence presented by

the state to convict the defendant of these crimes was not the same.

Finally, the statutes involved do not have similar legislative purposes.

The purpose of the conspiracy statute is to deter agreements of any kind that would

violate the laws of Tennessee. Tenn. Code Ann. § 39-12-103(a). "The offense of

conspiracy, aimed at group criminality, is based on the principle that offense

committed by a group poses a greater public threat than offense committed by a

single individual." Tenn. Code Ann. § 39-12-103, Sentencing Commission

Comments. The statute prohibiting the sale or delivery of illegal drugs has a

different legislative purpose. It falls within the "Tennessee Drug Control Act of

1989," Tenn. Code Ann. § 39-17-401. This act defines drug related charges,

defines and schedules controlled substances, and sets penalties. The act does not

address group criminality, as does the conspiracy statute. Thus, these statutes do

not share a similar legislative purpose.

16
 Because different elements are required under each statute, the same

evidence was not used to prove both offenses, and the statutes have different

legislative purposes, the convictions for both the sale of cocaine and the conspiracy

to sell cocaine do not violate double jeopardy.

The defendant also contends that his convictions violate due process.

He cites State v. Anthony, 817 S.W.2d 299 (Tenn. 1991) in support of his position.

In Anthony, our supreme court addressed the issue of whether dual convictions for

armed robbery and aggravated kidnaping violated the due process guarantees of

Article I, § 8 of the Tennessee Constitution. The court concluded that when a

confinement, movement, or detention is "essentially incidental" to an accompanying

felony, such as robbery or rape, it is not sufficient to support a separate conviction

for kidnaping. Id. at 306. The court warned that the kidnaping statute should be

narrowly construed "so as to make its reach fundamentally fair and to protect the

due process rights of every citizen . . . ." Id.

There are significant distinctions between this case and Anthony. In

Anthony, our supreme court was concerned about the fact that proving one felony,

the armed robbery, inherently and necessarily proved the elements of the second

felony, kidnaping. In this case, the proof of the elements of sale of cocaine does not

inherently or necessarily prove the elements of conspiracy. Our task under Anthony

is to apply statutes narrowly so as to make their reach "fundamentally fair and to

protect the due process rights of every citizen." Here, the defendant does not argue

that a due process violation occurs in all instances in which an individual is

convicted of selling cocaine plus conspiracy to sell cocaine. Rather, the defendant's

argument is based purely on the particular method in which he, as a blind individual,

must commit the offenses. He argues that his son's assistance was "essentially

17
incidental" to the sale. We disagree.

The evidence indicated that the defendant, acting alone, arranged the

illegal sales. Both calls were placed to his home. He made arrangements with the

purchasers relating to times and places of the meetings. He set the prices for the

transactions. While he may have constructively delivered the cocaine by enlisting

the aid of his son, he actively participated in the sale of the cocaine to his buyers.

His son's assistance was not "essentially incidental" to the offense of selling drugs.

There will always be a nexus between the conspiracy and the

substantive offense when the latter offense is completed. A conspiracy, however,

would rarely be "essentially incidental" to the underlying offense, as that term is

used in Anthony. In Anthony, it was "essentially incidental" to the robbery that the

defendant contain his victims. Here, the defendant argues that his son's

participation in the sale was "essentially incidental" to the consummation of the sale,

thereby creating an overlap between the proof presented to establish the drug

offense and the offense of conspiracy. Yet, there are numerous ways that a blind

individual might sell illegal drugs without securing assistance from another, such as

conducting illegal transactions from his own home. In our view, the participation of

the defendant's son, while creating a conspiracy to sell cocaine, was not "essentially

incidental" to the underlying offense.

Moreover, the statute prohibiting conspiracies is designed to combat a

danger posed to the public that is different from the danger sought to be prevented

by the drug statutes. The plan and design of two or more individuals to sell cocaine

creates an offense that is worthy of its own punishment:

[C]ollective criminal agreement–partnership in
crime–presents a greater potential threat to the public

18
 than individual delicts. Concerted action both increases
the likelihood that the criminal object will be successfully
attained and decreases the probability that the
individuals will depart from their path of criminality.
Group association for criminal purposes often, if not
normally, makes possible the attainment of ends more
complex than those which one criminal could accomplish.
Nor is the danger of a conspiratorial group limited to the
particular end toward which it has embarked.
Combination in crime makes more likely the commission
of crimes unrelated to the original purpose for which the
group was formed. In sum, the danger which a
conspiracy generates is not confined to the substantive
offense which is the immediate aim of the enterprise.

Callanan v. United States, 364 U.S. 587, 593-94, 81 S. Ct. 321, 325 (1961). In

summary, it is our conclusion that the defendant's convictions do not offend double

jeopardy or due process principles.

VII

The defendant next contends that he is entitled to a new trial based on

the trial judge's statement that the defendant could be found guilty if he acted

"recklessly." The transcript of the jury charge shows that the trial court provided the

statutory definition of the term "recklessly":

"Recklessly" means that a person acts recklessly with
respect to the circumstances surrounding the conduct or
the results of the conduct when the person is aware of
but consciously disregards a substantial and unjustifiable
risk that the circumstances exist or the result will occur.
The risk must be of such a nature and degree that it's
disregard constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all
the circumstances as viewed from the accused person's
standpoint.

The trial court then made the following observation:

Now if you wonder why I give you these lengthy
definitions of words like intentionally, knowingly, and
recklessly, it's because those words are used in the
language that defines the elements of these crimes. For
example, going back to simple possession or casual
exchange I have told you that one of the elements that
must be proven by the state beyond a reasonable doubt
is that the defendant either intentionally, knowingly or

19
 recklessly possessed for casual exchange a controlled
substance.

The state concedes that the trial judge erred by stating that

recklessness was a sufficient mens rea to sustain a conviction for casual exchange,

a misdemeanor, under Tenn. Code Ann. § 39-17-418(a). Tenn. Code Ann. § 39-17-

418(a) requires a mens rea of "knowingly." The state argues that the error was

harmless because the defendant was convicted of greater offenses–sale of cocaine

and conspiracy–which the trial court properly defined, and not the lesser included

offense of possession or casual exchange. We agree. While it was erroneous for

the trial court to instruct the jury as to recklessness, the error was clearly harmless in

light of the defendant’s convictions for the greater offenses. Under these

circumstances, the erroneous instruction was never a consideration. Had the

defendant been convicted of casual exchange, a new trial would have been

warranted.

VIII

Next, the defendant raises an issue relating to the accuracy of the jury

charge as to the possible range of sentence. The trial judge instructed the jury that

the defendant, if convicted, would qualify for Range I sentences:

The punishment for the sale of cocaine, a felony, may be
a term of years not less than eight years nor more than
twelve years in the state penitentiary and a fine up to two
hundred thousand dollars. The punishment for delivery
of cocaine, a felony, may be a term of years not less than
eight nor more than twelve years in the state penitentiary
and a fine up to two hundred thousand dollars. The
punishment for conspiracy to sell and deliver cocaine, a
felony, may be a term of years not less than eight nor
more than twelve years in the state penitentiary.

(emphasis added).

20
 The state concedes that the charge was erroneous because the

defendant was actually a Range II offender. The possible range for each count was,

therefore, twelve to twenty years. At sentencing, the trial court sentenced the

defendant as a Range II offender to twenty years for each count.

Under similar circumstances, our supreme court has held that

sentencing a defendant to a higher range than the jury has been informed is

prejudicial to the judicial process. State v. Cook, 816 S.W.2d 322 (Tenn. 1991). In

Cook, our supreme court ruled that a defendant’s right to have the jury know the

range of punishment applicable to the charges before deciding guilt or innocence

"would be lost if the defendant were to be sentenced to punishments greater than

what the jury finding guilt was instructed would be imposed." Cook, 816 S.W.2d at

327. The court reversed the convictions and remanded for a new trial. Id.

This court acknowledges that the state has proposed that the

defendant be re-sentenced as a Range I offender, as opposed to a remand for a

new trial. The defendant has attempted to accept the proposal. However, plea

agreements are typically the function of the district attorney general and the

defendant at the pre-trial stage, and are subject to the approval of the trial court.

Tenn. R. Crim. P 11(e). See also Farmer v. State, 570 S.W.2d 359 (Tenn. Crim.

App. 1978) (holding that the trial court is afforded discretion in the acceptance of a

plea). In our view, any such proposals are best left for review by the trial judge, and

should generally address all possible issues in a case. Thus, a reversal of the

convictions and a remand for trial is the appropriate remedy.

IX

Finally, the defendant challenges the imposition of consecutive

21
sentences. The trial court sentenced the defendant to the maximum Range II

sentence for each of the four convictions. Three of those sentences were ordered

to be served consecutively. The defendant's challenge to his sentence is twofold.

First, he argues that the effective sentence of sixty years was disproportionate to the

seriousness of the offenses. Second, he argues that the imposition of consecutive

sentences was inappropriate because he was subjected to "sentence entrapment,"

in that the length of his sentences was based upon the number of controlled buys

arranged by law enforcement officials. Although the convictions have been

reversed, there may be further review. This court will, therefore, consider the issue.

When an accused challenges the length, range, or manner of the

service of a sentence, it is the duty of this court to conduct a de novo review with a

presumption that the determinations made by the trial court 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); see State v. Jones, 883 S.W.2d 597 (Tenn. 1994). The Sentencing

Commission Comments provide that the burden is on the defendant to show the

impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, received at

the trial and sentencing hearing; (2) the presentence report; (3) the principles of

sentencing and the arguments of counsel relative to sentencing alternatives; (4) the

nature and characteristics of the offense; (5) any mitigating or enhancing factors; (6)

any statements made by the defendant on his own behalf; and (7) the defendant's

potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, and

-210; State v. Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).

22
 Prior to the enactment of the Criminal Sentencing Reform Act of 1989,

the limited classifications for the imposition of consecutive sentences were set out in

Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). In that case, our supreme court

ruled that aggravating circumstances must be present before placement in any one

of the classifications. Later, in State v. Taylor, 739 S.W.2d 227 (Tenn. 1987), the

court established an additional category for those defendants convicted of two or

more statutory offenses involving sexual abuse of minors. There were, however,

additional words of caution:

[C]onsecutive sentences should not routinely be imposed
. . . and . . . the aggregate maximum of consecutive
terms must be reasonable related to the severity of the
offenses involved.

State v. Taylor, 739 S.W.2d at 230. The Sentencing Commission Comments

adopted the cautionary language. Tenn. Code Ann. § 40-35-115. The 1989 act is,

in essence, the codification of the holdings in Gray and Taylor; consecutive

sentences may be imposed in the discretion of the trial court only upon a

determination that one or more of the following criteria2 exist:

(1) The defendant is a professional criminal who has
knowingly devoted himself to criminal acts as a major
source of livelihood;

(2) The defendant is an offender whose record of
criminal activity is extensive;

(3) The defendant is a dangerous mentally abnormal
person so declared by a competent psychiatrist who
concludes as a result of an investigation prior to
sentencing that the defendant’s criminal conduct has
been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to
consequences;

(4) The defendant is a dangerous offender whose
behavior indicates little or no regard for human life, and
no hesitation about committing a crime in which the risk
to human life is high;

2
The first four criteria are found in Gray. A fifth category in Gray, based on a specific number
of prior felo ny conviction s, ma y enhanc e the sen tence ra nge bu t is no longe r a listed criterion . See
Tenn. Code Ann. § 40-35-115, Sentencing Comm ission Comments.

23
 (5) The defendant is convicted of two (2) or more
statutory offenses involving sexual abuse of a minor with
consideration of the aggravating circumstances arising
from the relationship between the defendant and victim
or victims, the time span of defendant’s undetected
sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical, and mental
damage to the victim or victims;

(6) The defendant is sentenced for an offense committed
while on probation; or

(7) The defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b).

In this case, the trial court imposed consecutive sentences based on

two criteria: that the defendant is a "professional criminal," Tenn. Code Ann. § 40-

35-115(b)(1), and that the defendant is an offender with an extensive criminal

record, Tenn. Code Ann. § 40-35-115(b)(2).

The record indicates that the defendant was arrested after a second

controlled buy. In the first sale, the undercover agents purchased 27.4 grams of

cocaine from the defendant. In the second, the purchase was for 53.4 grams, for a

total of approximately three ounces.

This court addressed the "sentence entrapment" issue in State v. John

Derrick Martin, No. 01C01-9502-CR-00043, (Tenn. Crim. App., at Nashville, Dec.

19, 1995), aff’d and remanded on other grounds, 940 S.W.2d 567 (Tenn. 1997). In

Martin, the defendant was arrested after four sales of cocaine to undercover agents

in an aggregate amount of 13 ounces. He was convicted at trial as follows:

Counts One, Two, and Three–sale of cocaine (ten year
sentences on each count);

Count Four–possession of cocaine with the intent to sell
(ten year sentence);

24
 Count Five–possession of drug paraphernalia (six month
sentence);

Count Six–driving on a suspended license (three month
sentence).

The trial court imposed consecutive sentences for each conviction after finding that

the defendant was a professional criminal and that he committed the offenses while

on probation. The panel concluded that while the defendant did qualify as a

professional criminal and did in fact commit the offenses while on probation, the

imposition of consecutive sentences was inappropriate because the "severity of the

crimes could vary significantly depending upon the specific number of buys the

officers chose to conduct and the amounts purchased in each buy." Furthermore,

the panel ruled "that forty years for the drug offenses is [not] reasonably related to

the severity of these four crimes." Id. at 9. The defendant's sentence was modified

so that "the two ten-year sentences on similar counts one and two will run

concurrently with each other and concurrently with all of the other counts including

the two misdemeanor offenses." The remaining sentences were ordered to be

served consecutively. The defendant's original sentence of forty years and nine

months was thereby reduced to twenty years and nine months.

Because the convictions have been set aside, it is unnecessary for this

court to rule on the propriety of the consecutive sentences. Nevertheless, it may be

appropriate, should the defendant be re-convicted for multiple offenses, for the trial

court to consider the ruling in Martin in the context of consecutive sentences.

Accordingly, the judgments of conviction are reversed and the cause is

remanded for a new trial.

__________________________________
Gary R. Wade, Presiding Judge

25
CONCUR:

_______________________________
David H. Welles, Judge

________________________________
Joe G. Riley, Judge

26