State of Tennessee v. Kenneth Miller and Ray Junior Turner

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 12, 2010 Session

STATE OF TENNESSEE v. KENNETH MILLER AND

RAY JUNIOR TURNER

Appeal from the Criminal Court for Davidson County

No. 2007-D-3535 Cheryl Blackburn, Judge

No. M2008-02267-CCA-R3-CD - Filed April 22, 2010

The Defendants, Kenneth Miller and Ray Junior Turner, were convicted by a Davidson

County jury of conspiracy to deliver 300 grams or more of cocaine and delivery of 300 grams

or more of cocaine. Additionally, the Defendant Miller was found guilty of possession with

intent to deliver 300 grams or more of cocaine. All convictions are Class A felonies. See

Tenn. Code Ann. § 39-17-417(j)(5). Following a sentencing hearing, the trial court

sentenced the Defendant Miller to an effective sentence of one hundred and twenty years as

a Range II, multiple offender; the trial court ordered all three of his forty-year sentences to

be served consecutively to one another. As for the Defendant Turner, the trial court imposed

an effective sentence of sixty years as a career offender, running both of his sixty-year

sentences concurrently with one another. On appeal, the Defendant Miller presents the

following issues for our review: (1) whether the trial court erred in not suppressing the

evidence gathered via wiretaps; (2) whether it was error to allow a State’s witness to “field-

test” a substance found on an exhibit; (3) whether the evidence was sufficient to support

verdicts for conspiracy and delivery of 300 grams or more of cocaine; and (4) whether the

trial court committed sentencing errors. The Defendant Turner, in addition to challenging

the sufficiency of the evidence in support of his convictions, argues that: (1) the trial court

erred by admitting into evidence certain “drug ledgers” found in his apartment; and (2) the

telephone calls intercepted during the wiretap investigation, purported to contain the

Defendant’s voice, were, in fact, inadmissible hearsay. After a review of the record, the

judgments of the trial court are affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J ERRY L. S MITH and

R OBERT W. W EDEMEYER, JJ., joined.

David A. Collins, Nashville, Tennessee, for the appellant, Kenneth Miller, and Michael A.

Colavecchio, Nashville, Tennessee, for the appellant, Ray Junior Turner.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; John Zimmerman and

Andrea Green, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Factual Background

This case results from an ongoing drug investigation involving the Defendants. A

Davidson County grand jury issued a superseding indictment1 on December 13, 2007,

charging the Defendants Miller and Turner with conspiracy to deliver 300 grams or more of

cocaine; the Defendants Miller and Turner with delivery of 300 grams or more of cocaine;

the Defendant Miller with possession with intent to deliver 300 grams or more of cocaine;

the Defendant Miller with possession with intent to deliver 26 grams or more of cocaine in

a school zone; and the Defendant Miller with delivery of 26 grams or more of cocaine. A

jury trial was held on May 20-21, 2008. The jury was unable to reach a verdict on the

charges against the Defendant Miller for possession with intent to deliver 26 grams or more

of cocaine in a school zone and delivery of 26 grams or more of cocaine; therefore, we will

not recite the evidence as it relates to those charges.

We will summarize the proof in the light most favorable to the State. Agent Shelly

Smitherman, with the Tennessee Bureau of Investigation (“TBI”), testified that she was the

agent in charge of the investigation involving the Defendants, which began in December

2005. Agent Smitherman obtained a wiretap order allowing her to intercept the Defendants’

phone calls; she explained that agents in the wireroom listened to the phone calls and that

they would relay pertinent information to officers in the field conducting surveillance of the

Defendants.

Through intercepting these phone calls, it was determined that a drug deal was to take

place on March 24, 2006, at the Rivergate Mall. The Defendant Miller was to deliver a

kilogram (“kilo”) of cocaine to an unidentified individual coming from Kentucky. Police

conducted surveillance of the Defendant Miller throughout the day. At 11:34 a.m. on this

day, the Defendant Miller phoned the Defendant Turner and asked him to “come and drop

1

The initial eight-count indictment was returned on June 20, 2006, and included co-defendants,

Cory Montez Crawford, Kavares Chakan Davis, Tommie Lee Griffin, Gregory Antonio Sweeny, and Ned

Wayne Thompson.

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it off.” TBI Special Agent Steve Talley testified that Kavares Davis (“Davis”) arrived at the

Defendant Miller’s apartment at 1:34 p.m. At 1:47 p.m., officers observed the Defendant

Turner, along with two other individuals, arrive at the Defendant Miller’s apartment. The

Defendant Turner went inside the residence through the garage door. After his arrival, the

blinds were closed. A few moments later, the blinds were reopened, and the Defendants and

Davis exited the apartment and stood out front talking for a time. Around 2:50 p.m., the

Defendant Turner and Davis left the residence.

Around 6:30 p.m., officers observed the Defendant Miller leave his apartment in his

black Chevrolet Impala, heading toward the Rivergate area. When he arrived at the mall, the

Defendant went inside the food court area and purchased some cookies. He received a call

from Davis and then returned to his vehicle. The Defendant drove to the food court entrance,

and a man got inside the vehicle. They drove around to the other side of the mall and parked

near a green Pontiac Grand Am with Kentucky tags. Detective Herbert Kajihara, with the

Twentieth Judicial Drug Task Force, saw the man who had been in the Defendant Miller’s

car walk back toward the mall. After the Defendant Miller left, Det. Kajihara continued to

observe the Kentucky vehicle. He then saw the same man exit the mall, along with another

male and a female juvenile, and get inside the car. The individuals were carrying packages.

Officers followed the green Pontiac to a gas station. At the gas station, an individual

later identified as Ned Wayne Thompson (“Thompson”), got out of the vehicle and placed

something that looked like a bag in the trunk. When Thompson left the gas station, the

vehicle proceeded onto Interstate 65. Although radar was not used, Officer Michael Wilson

of the Metropolitan Police Department paced the vehicle traveling 80 miles per hour in a 70

mile-per-hour zone. Officer Wilson stopped the vehicle. The State did not want to

compromise the wiretap investigation, so the officers proceeded under the auspice that they

were stopping the individuals for a traffic violation, and they obtained probable cause to

search the vehicle due to a K-9 alert. Hidden behind carpeting inside the trunk, officers

discovered two separately packaged bricks of cocaine, weighing approximately two

kilograms.

Officers then procured search warrants for the Defendants’ residences. During the

search of the Defendant Miller’s residence, police recovered: one kilo of cocaine from the

kitchen; 124.5 grams of cocaine found inside a shoe box in the bathroom; $13,000 in cash

from the safe; a notebook with drug ledgers, including names; some nine millimeter rounds

for a handgun; and “gunk cans” containing cocaine. Officers also found items used to

prepare the cocaine for resale—digital scales, a “kilo press,” plastic baggies, and a “cutting

agent” used to break down cocaine. The Defendant Miller also used a video camera to

monitor the parking lot in front of his apartment. At the Defendant Turner’s residence,

Agent Talley was in charge of collecting evidence. Evidence collected included five

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notebooks containing drug ledgers found in the kitchen garbage can, digital scales, a vacuum

bag sealer, two loaded handguns, a “kilo press,” and a “cutting agent.”

Kavares Davis, initially a co-defendant in this case, testified that he had entered a

guilty plea to possession of .5 grams or more of cocaine and received an eight-year sentence

under the terms of the agreement. Davis affirmed that the Defendant Turner was his uncle

and that the Defendant Miller was his cousin. The Defendant Miller supplied him with

cocaine at the time of his March 2006 arrest and had done so “off and on” for two or three

years. In November or December 2005, Davis told the Defendant Miller that he did not like

dealing with the Defendant Turner because of his high prices, $20,000 for a kilo of cocaine;

however, the Defendant Miller continued to deal with the Defendant Turner.

Davis went to the Defendant Miller’s apartment on the evening of March 23, 2006.

The Defendant Turner was already there; he had brought three bricks or kilos of cocaine for

the Defendant Miller, which were sitting on the table. The Defendant Miller said one of the

kilos was “bad,” and the Defendant Turner promised to replace it with another one the next

day. The Defendant Turner took the “bad” kilo with him when he left.

According to Davis, the Defendant Turner showed up the following morning with two

other men. Davis was already there because he and the Defendant Miller were supposed to

go get something to eat. Davis went downstairs to let the Defendant Turner in through the

garage. The Defendant Turner went upstairs, but Davis stayed downstairs. Davis testified

that the Defendant Turner was dropping off the new kilo of cocaine, which he had in his

arms. The Defendants then came back down to the basement, and all three men exited and

stood outside talking for a while.

Later that day, the Defendant Miller asked Davis to follow him to Rivergate Mall to

meet Thompson, aka “Kentucky.” Davis phoned the Defendant Miller who was in the food

court area of the mall; the Defendant Miller stated he was “waiting on them to get done

eating.” Davis made plans to meet the Defendant Miller at a Mapco gas station following

the exchange. After they met at the gas station, they proceeded to the Defendant Turner’s

residence, where only the Defendant Miller went inside. About five minutes later, he came

back out to the car and grabbed a bag, which he stuffed in his coat, and went back inside.

Later that evening, Davis and the Defendant Miller were arrested at a Mexican restaurant in

Hermitage.

Previously, on March 10, 2006, Agent Smitherman saw Davis place a trash bag in the

dumpster of the Defendant Miller’s apartment complex. Agent Smitherman pulled the trash

and found three empty plastic “kilo wrappers,” rubber gloves, a “cutting agent,” and a sheet

of paper showing a drug ledger. Additionally, on March 10, officers in the wireroom began

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listening to numerous conversations involving the Defendants, wherein the Defendants used

code words for exchanging drugs and money.

Following the conclusion of the proof, the jury found both of the Defendants guilty

of conspiracy to deliver 300 grams or more of cocaine and delivery of 300 grams or more of

cocaine. The Defendant Miller was also found guilty of possession of 300 grams or more

of cocaine with the intent to deliver.

A sentencing hearing was held on July 16, 2008. The trial court sentenced the

Defendant Turner to two concurrent terms of sixty years as career offender. As for the

Defendant Miller, the trial court enhanced his sentence on each conviction to forty years as

a Range II, multiple offender. The trial court then ordered all three of these sentences to be

served consecutively to one another, for a total effective sentence of one hundred and twenty

year.

The Defendants timely filed motions for a new trial. This appeal followed.

I. Wiretap Evidence 2

A. Neutral and Detached Magistrate

The Defendant Miller challenges the evidence obtained via the wiretap order,

contending that the trial court erred by failing to suppress said evidence because the wiretap

order was not issued by a “neutral and detached magistrate.” “[A] trial court’s findings of

fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.”

State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We review a trial court’s applications of

law to fact de novo, however. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). The

party prevailing at the suppression hearing is further “entitled to the strongest legitimate view

of the evidence adduced at the suppression hearing as well as all reasonable and legitimate

inferences that may be drawn from such evidence.” Odom, 928 S.W.2d at 23. In reviewing

a trial court’s ruling on a motion to suppress, an appellate court may consider the evidence

presented both at the suppression hearing and at the subsequent trial. State v. Henning, 975

S.W.2d 290, 299 (Tenn. 1998).

The Wiretapping and Electronic Surveillance Act, Tennessee Code Annotated section

40-6-301 to -311, allows certain judges to issue orders authorizing interception of wire, oral,

or electronic communications upon the application of law enforcement. Tenn. Code Ann.

§ 40-6-304. The application must include the following:

2

For the purposes of clarity and brevity, we have reordered the issues as presented by the

Defendants’ in their respective briefs.

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(1) the identity of the applicant officer and the district attorney general

authorizing the application;

(2) a full and complete statement of the facts relied upon by the

applicant, including details of the offense, a description of the facilities from

which the communications are to be intercepted, a description of the type of

communication sought to be intercepted, and the identity of all known persons

committing the offense and whose communications may be intercepted;

(3) a statement of the time period during which the interception must

be maintained; and

(4) a statement of facts concerning any previous applications.

Tenn. Code Ann. § 40-6-304(a). The application also must contain “[a] full and complete

statement as to whether or not other investigative procedures have been tried and failed or

why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Tenn.

Code Ann. § 40-6-304(a)(3).

The Defendant Miller contends that the judge who issued the wiretap order, Judge

Monte Watkins, was not a “neutral and detached magistrate.” The basis for his contention

is that Judge Watkins, prior to becoming a judge, represented him in a criminal action

involving cocaine and, therefore, Judge Watkins had likely surmised that the Defendant was

guilty of the charges alleged in the wiretap application. The State first argues that the

Defendant has waived this issue for failing to raise it in his motion for new trial.

Additionally, the State contends that plain error review is not warranted because a clear and

unequivocal rule of law has not been breached. The State also notes that the Defendant has

failed to include a transcript of the motion to suppress hearing and a copy of the wiretap

application in the record on appeal.

Generally, issues are waived if they are not presented in a motion for a new trial. See

Tenn. R. App. P. 3(e); see also State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997).

Therefore, this Court may only review the issue for plain error. See Tenn. R. Crim. P. 52(b)

(providing that, “[w]hen necessary to do substantial justice, an appellate court may consider

an error that has affected the substantial rights of a party at any time”). To recognize the

existence of plain error, this Court must find each of the following five factors to be present:

(a) the record must clearly establish what occurred in the trial court;

(b) a clear and unequivocal rule of law must have been breached;

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(c) a substantial right of the accused must have been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is necessary to do substantial justice.

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (adopting the factors first articulated in

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). “[A] complete

consideration of all five of the factors is not necessary when it is clear from the record that

at least one of them cannot be satisfied.” State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn.

2007) (citing Smith, 24 S.W.3d at 283).

Initially, we observe that the Defendant Miller has made no attempt to argue that his

issue is not waived for failing to raise it in his motion for new trial, instead, arguing only that

it is not waived for failing to include a transcript of the motion to suppress hearing.

Nonetheless, we will turn our attention to the application of the Adkisson factors.

Analyzing the first factor, we conclude that the Defendant has failed to establish

clearly what occurred in the trial court by failing to properly include in the record on appeal

the wiretap application and a transcript of the motion to suppress hearing. The Defendant

contends that, “[a]ll that occurred on April 23, 2008 when the motion was docketed was for

the [Defendant] to verify that the issuing magistrate was his former attorney in a drug case

[a fact that could have been documented by reference to the exhibits attached to the . . .

motion to suppress].” However, the motion to suppress order prepared by the trial judge

belies this contention, providing as follows: “The [c]ourt held a hearing on April 23, 2008,

and the State filed its written response the dame day . . . . After hearing the evidence, the

[c]ourt orally denied the suppression motion from the bench, noting that a brief written order

would subsequently follow.” Only a transcript could clearly establish what actually occurred

on April 23, 2008. Moreover, it seems axiomatic that inclusion of the wiretap application

was paramount for substantive appellate review of the Defendant’s issue.

Second, we examine whether the record demonstrates that a clear and unequivocal

rule of law was breached. The State argues that, because this is an issue of first impression

in Tennessee, it is impossible for the trial court to have breached a clear and unequivocal rule

of law. However, the requirement that a neutral and detached magistrate issue a warrant

emanates from the Fourth Amendment to the United States Constitution and article I, section

7 of the Tennessee Constitution, which protect against unreasonable searches and seizures.

See State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999). The fact that Tennessee appellate

courts have yet to address its application to our Wiretap Act does not negate the

constitutional rule of law.

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Turning to that rule of law and its application to the present case, the trial court relied

upon federal law for guidance and concluded that

the fact a judge previously served as defense counsel for a defendant while in

private practice does not per se invalidate that the same individual can be [a]

neutral and detached judge when issuing a search warrant or, as is the case

here, a wiretap authorization order, for a subsequent case. There has been no

evidence presented to this [c]ourt that Judge Watkins was biased or impartial

when issuing the wiretap authorization against [the] Defendant.

We agree with the trial court, finding federal law to be sufficiently persuasive authority on

the subject. See e.g., United States v. Barry-Scott, No. 05-4464, 2007 WL 3129723, at *8

(6th Cir. Oct. 25, 2007) (judge issuing warrant found to be neutral and detached even though

he had previously represented defendant and her husband on criminal charges and was aware

of their drug activities). Concluding that the first two Adkisson factors are not satisfied, we

decline plain error review and find it unnecessary to proceed to the remaining factors.

B. Hearsay

The Defendant Turner also challenges admission of testimony regarding the tape-

recorded conversations via the wiretap. His precise argument is unclear. He states, in his

issues presented for review, that the trial court erred in allowing testimony “that the

telephone calls alleged to have been made by the Defendant were actually the Defendant, or

that the cell phone itself actually belonged to the [Defendant.]” He then claims that this

testimony was hearsay. In the argument portion of his brief, the only reference he makes to

these recordings is that the recorded conversations “contain no evidence of drug transactions,

merely what some witness claimed were ‘code’ words for drugs and money.” He then asserts

that the State’s case was based upon “hearsay statements.”

The States argues that this issue waived for failing to make a contemporaneous

objection. We note that the Defendant Turner filed no motion to suppress or motion in

limine regarding the tape-recorded conversations or testimony related thereto. Moreover, we

are unable to discern from the record an ostensible objection raising the issue the Defendant

now asserts on appeal, and the Defendant has made no reference to the record pointing to

such an objection. See Tenn. R. App. P. 27(a). As an anomaly, we point out that the

Defendant did raise the issue in his motion for new trial; however, the motion was denied,

and the trial court did not further expound upon the issue.

Regardless of any waiver, we conclude that any challenge to Agent Smitherman’s

testimony identifying the voices on the recordings, stating who used each phone, and

explaining the meaning of certain terms used in drug-related conversations is without merit.

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All of these statements are admissible law enforcement agent testimony. A law enforcement

officer experienced in wiretap interceptions may give testimony about specifics such as these

when that officer is personally knowledgeable of these facts. Additionally, this Court has

previously held that a narcotics officer may testify about the language used by drug dealers.

See State v. Carey, 914 S.W.2d 93, 96 (Tenn. Crim. App. 1995).

The Defendant also appears to challenge admission of evidence on the ground that he

perceives the testimony to be “hearsay” and lacking foundation. The Defendant did raise

several hearsay objections at trial to evidence obtained from the wiretap; however, the

Defendant only challenged as hearsay messages relayed to officers in the field from the

wireroom. The trial court overruled the Defendant’s objections, concluding that the

messages were not introduced for the truth of the matter asserted but to explain the officers’

subsequent actions. We agree with the trial court. Moreover, we note that testimony and

evidence from the recordings are not hearsay or fall within exceptions to the hearsay rule.

For example, a party’s own statement in either an individual or a representative capacity is

not excluded by the hearsay rule. See Tenn. R. Evid. 803(1.2)(A). Additionally, many of

these calls contain co-conspirator statements, likewise an exception to the hearsay rule: “[A]

statement by a co-conspirator of a party during the course of and in furtherance of the

conspiracy.” See Tenn. R. Evid. 803(1.2)(E). Therefore, these statements were not

excluded by the hearsay rule.

II. Testing of Substance

The Defendant Miller argues that the trial court abused its discretion when it permitted

Det. Kajihara, in the presence of the jury, to “field test” the substance, previously undetected

by officers, retrieved from the box containing the digital scales. The Defendant alleges that

it was error because the substance had not been revealed in the discovery process and there

was no chain of custody established for the substance.

Agent Talley testified that he was involved in the search of the Defendant Turner’s

residence and was responsible for the collection of evidence. On top of a dresser in the

Defendant Turner’s master bedroom, Agent Talley found a set of digital scales inside a box,

which he testified could be used for weighing drugs. The scales and the box were admitted

into evidence without objection. On cross-examination, Agent Talley testified that he had

not detected any cocaine residue on the scales. On redirect, the State asked, “Today when

you were jostling the box around that contained the scales did you see anything that was

unusual?” Agent Talley replied, “Yes, sir. I noticed a white, chunky substance in the box

that I’ve not previously seen.” Agent Talley affirmed that he first found the substance upon

examining the scales in front of the jury and that he had not touched the substance or “tried

to feel it in any way.” The trial court then directed Agent Talley to “rake” the substance into

a plastic bag. Later in the trial, Det. Kajihara testified that he was experienced in using

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cocaine “field-test” kits and relayed that he had brought a test kit with him at the State’s

request. At that time, the State asked that Det. Kajihara be allowed to test the substance

found in the box. The Defendants objected, arguing that the chain of custody had not been

established and that the substance had not been disclosed in the discovery process. The trial

court overruled the objection finding that the substance was “part of the exhibit” and that the

Defendants’ argument went to the weight of the evidence, not its admissibility.

A. Chain of Custody

As for the chain of custody of the substance, the Defendant Miller points to the facts

that the box “supposedly laid around somewhere for two years” and the substance was

“undiscovered” by authorities and that “the record is silent relative to where this substance

was and how it was secured from the time it was allegedly discovered . . . and the time it was

tested . . . the next day.” Thus, he submits that “said demonstration in the presence of the

jury so prejudiced the panel” that his right to a fair and impartial trial was violated, entitling

him to a new trial.

We begin our analysis by first noting that the standard of review for this issue is one

of “sound discretion of the trial court, and the court’s determination will not be disturbed in

the absence of a clearly mistaken exercise of such discretion.” State v. Kilpatrick, 52 S.W.3d

81, 87 (Tenn. Crim. App. 2000); see also State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim.

App. 1987). We conclude that the record on appeal supports the trial court’s findings.

In order for tangible material to be admitted into evidence, a witness must be able to

identify the evidence or establish an unbroken chain of custody. State v. Goodman, 643

S.W.2d 375, 381 (Tenn. Crim. App. 1982). The purpose of the chain of custody requirement

is to “demonstrate that there has been no tampering, loss, substitution, or mistake with

respect to the evidence.” State v. Braden, 867 S.W.2d 750, 759 (Tenn. Crim. App. 1993).

However, this Court has also ruled that the State is not required to “establish facts which

exclude every possibility of tampering,” but rather must establish circumstances that

“reasonably assure the identity of the evidence and its integrity.” Kilpatrick, 52 S.W.3d at

87. In other words, the chain of custody rule “does not require absolute certainty of

identification.” Id. (citing Ritter v. State, 462 S.W.2d 247 (Tenn. Crim. App. 1970)). Rather,

“[r]easonable assurance, rather than absolute assurance, is the prerequisite for admission.”

Id.

The Defendant has failed to point to any facts which suggest the integrity of the

evidence was impugned in any way. There was no objection to admission of the box and

scales as an exhibit, and the box and scales were accounted for in Agent Talley’s records.

Agent Talley testified that he first noticed the white substance upon examining the scales in

front of the jury. Agent Talley affirmed that he had not altered the substance by touching it.

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The trial court then directed Agent Talley to rake the substance into a plastic bag. The record

indicates that the substance was then in possession of the trial court until tested by Det.

Kajihara the next day. The record establishes reasonable assurance that the substance

admitted at trial was in the box found at the Defendant Turner’s residence and was not

tampered with.

Therefore, we conclude that the trial court did not abuse its discretion in determining

that the chain of evidence was sufficient to allow field-testing of the substance and its

admission into evidence at trial. Moreover, we note that the substance tested was a small

amount of cocaine and found at the Defendant Turner’s residence. Given the large amounts

of cocaine involved in this case, the strong case of the State, and the fact that the substance

was not connected to the Defendant Miller, any error was harmless. This issue is without

merit.

B. Discovery Violation

The Defendant Miller further asserts that the trial court should have excluded the

substance from evidence because of the State’s failure to produce it before trial. Under Rule

16(a)(1)(F) of the Tennessee Rules of Criminal Procedure, upon request of a defendant, the

State shall permit a defendant to inspect and copy or photograph documents and objects

within the possession, custody or control of the state, and which are material to the

preparation of a defendant’s defense, are intended for use by the state as evidence in chief

at the trial, or were obtained from or belonged to the defendant. Tenn. R. Crim. P.

16(a)(1)(F). Additionally, section (c) of Rule 16 imposes a continuing duty to disclose

discoverable items of evidence.

Although Rule 16(d)(2) does provide that the court may “prohibit the party from

introducing evidence not disclosed,” Tennessee Rules of Criminal Procedure 16(d)(2), this

Court has held that excluding evidence for a Rule 16 violation is a “drastic remedy and

should not be implemented unless there is no other reasonable alternative.” State v. Smith,

926 S.W.2d 267, 270 (Tenn. Crim. App. 1995). The evidence should not be excluded unless

the Defendant was prejudiced by the discovery violation itself. Id.; see also State v. Cottrell,

868 S.W.2d 673, 677 (Tenn. Crim. App. 1992). As for any discovery violation, when

arguing that the State has violated Rule 16, a defendant bears the burden of showing “the

degree to which the impediments to discovery hindered trial preparation and defense at trial.”

State v. Thomas Dee Huskey, No. E1999-00438-CCA-R3-CD, 2002 WL 140059, at *56

(Tenn. Crim. App., Knoxville, June 28, 2002) (quoting State v. Brown, 836 S.W.2d 530, 548

(Tenn. 1992)).

It appears that both the Defendants would have been aware of items discovered at the

Defendant Turner’s residence during the execution of the search warrant; thus, presumably

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aware that the State intended to introduce the box and digital scales as an exhibit at trial. The

exhibit was available to the defense for inspection; there is no allegation that the State failed

to disclose the digital scales and the box during discovery or that the State intentionally failed

to record the substance inside the box. Agent Talley testified that he just discovered the

substance while “jostling” the box, which was brought from the property room. The court

took possession of the substance following its discovery. We conclude that the Defendant

was not prejudiced by the State’s failure to produce this substance prior to trial. Again, if

there was any error by the trial court in this regard, it was harmless.

III. Drug Ledgers

Next, the Defendant Turner submits that it was error to permit the State to enter into

evidence “drug ledgers” found inside his residence; he referred to them as “undated

scribblings.” He contends that these ledgers “were irrelevant to the alleged drug conspiracy

and possession of cocaine charges in this case.” The Defendant asserts that the State did not

prove the ledgers were his; they were found inside his wife’s apartment. The Defendant’s

wife testified at trial that she and the Defendant were separated, and he was not living there

at the time of the search.3

Agent Talley testified that, while searching the Defendant Turner’s residence, he

discovered five notebooks (“drug ledgers”) inside the kitchen garbage can: one large

composition book and four smaller notebooks. Agent Talley saw the initials K.D. in the

notebooks, which was a nickname for the Defendant Miller. Agent Smitherman examined

the evidence after it was recovered. Although the ledgers were undated, the ledgers did

contain a list of the Defendant Turner’s customers, including amounts owed.

“‘Relevant evidence’ means 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.” Tenn. R. Evid. 401; see also State v.

Kennedy, 7 S.W.3d 58, 68 (Tenn. Crim. App. 1999). Tennessee Rule of Evidence 402

provides that “[a]ll relevant evidence is admissible except as [otherwise] provided . . . .

Evidence which is not relevant is not admissible.” However, even relevant evidence “may

be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

It is within the trial court’s discretion to determine whether the proffered evidence is

relevant; thus, we will not overturn the trial court’s decision absent an abuse of discretion.

State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

3

Interestingly enough, the Defendant does not challenge any of the other evidence recovered from

this residence on this ground.

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First, we note that, while the Defendant Turner filed a motion in limine to excluded

the ledgers, it does not appear in the record on appeal where this motion was brought to the

trial court’s attention.4 Moreover, the Defendant does not cite to the record wherein he raised

a contemporaneous objection at trial, and we can find none. The Defendant has waived the

issue. See Tenn. R. App. P. 36(a). Nonetheless, both Agents, experienced narcotics

investigators, testified that the notebooks were “drug ledgers,” in which the Defendant

recorded who owed him money and how much they owed. Agent Smitherman was able to

confirm some of the entries based upon intercepted phone calls. The ledgers were found in

the kitchen garbage can of the residence; the Defendant Turner’s argument that the

notebooks did not belong him went to the weight, not the admissibility, of the evidence. It

was established that the Defendant Turner frequented the apartment, and additional items

were found indicating a large drug operation. We conclude that the evidence was relevant

to the existence of a conspiracy between the Defendants and its probative value was not

outweighed by any other considerations. The trial court did not abuse its discretion in

admitting the notebooks into evidence.

IV. Sufficiency

On appeal, the Defendants raise several challenges to the sufficiency of the evidence

supporting their respective convictions.5 The crux of their claim is that the accomplice

testimony of Kavares Davis was not corroborated. The Defendant Turner asserts that the trial

court erred in denying his motion for judgment of acquittal on all counts of the indictment.

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in

criminal actions whether by the trial court or jury shall be set aside if the evidence is

insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”

A convicted criminal defendant who challenges the sufficiency of the evidence on appeal

bears the burden of demonstrating why the evidence is insufficient to support the verdict,

because a verdict of guilt destroys the presumption of innocence and imposes a presumption

of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35

S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This

Court must reject a convicted criminal defendant’s challenge to the sufficiency of the

evidence if, after considering the evidence in a light most favorable to the prosecution, we

determine that any rational trier of fact could have found the essential elements of the crime

4

At the motion for new trial hearing, the trial court stated, “The motion in limine, I addressed that,

and I gave my reasons for that.”

5

The Defendant Miller does not appear to challenge his possession with intent to deliver conviction,

which was based upon the cocaine recovered from his residence during the search.

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beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,

8 S.W.3d 593, 599 (Tenn. 1999).

On appeal, the State is entitled to the strongest legitimate view of the evidence and all

reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35

S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the

testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the

prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions

about the credibility of witnesses, the weight and value of the evidence, as well as all factual

issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh

or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor

will this Court substitute its own inferences drawn from circumstantial evidence for those

drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.

Moreover, on appellate review of a denial of a motion for judgment of acquittal, we apply

the same standard as a question of the sufficiency of the convicting evidence. See, e.g., State

v. Brewer, 945 S.W.2d 803, 805 n.2 (Tenn. Crim. App. 1997).

It is an offense for a defendant to knowingly deliver a controlled substance. See Tenn.

Code Ann. § 39-17-417(a)(3). Cocaine is a Schedule II controlled substance and, if the

amount involved is 300 grams or more, then the offense is a Class A felony. See Tenn. Code

Ann. §§ 39-17-417(c), (j)(5). “‘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). To establish a conspiracy, the

State was required to prove the following:

The offense of conspiracy is committed if two or more people, each having the

culpable mental state for the offense which is the object of the conspiracy and

each acting for the purpose of promoting or facilitating commission of the

offense, agree that one or more of them will engage in conduct which

constitutes such offense.

Tenn. Code Ann. § 39-12-103(a). “No person may be convicted of conspiracy to commit an

offense unless an overt act in pursuance of such conspiracy is alleged and proved to have

been done by the person or by another with whom the person conspired.” Tenn. Code Ann.

§ 39-12-103(d).

The Defendants argue that State failed to provide sufficient evidence to corroborate

the accomplice testimony of Kavares Davis. It is well settled that, “[i]n Tennessee, a

conviction may not be based solely upon the uncorroborated testimony of an accomplice.”

State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing State v. Bigbee, 885 S.W.2d 797,

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803 (Tenn. 1994)). This “very salutary rule” is designed to prevent the “obvious dangers”

of allowing a defendant to be convicted solely on the basis of an accomplice’s testimony.

Sherrill v. State, 321 S.W.2d 811, 814 (Tenn. 1959). However, Tennessee law requires only

a modicum of evidence in order to sufficiently corroborate the testimony of an accomplice.

State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984).

With respect to the nature, quality, and sufficiency of the evidence necessary to

corroborate an accomplice’s testimony, this Court has held as follows:

The rule of corroboration as applied and used in this State is that there must be

some evidence independent of the testimony of the accomplice. The

corroborating evidence must connect, or tend to connect the defendant with the

commission of the crime charged; and, furthermore, the tendency of the

corroborative evidence to connect the defendant must be independent of any

testimony of the accomplice. The corroborative evidence must of its own

force, independently of the accomplice’s testimony, tend to connect the

defendant with the commission of the crime.

....

The evidence corroborating the testimony of an accomplice may consist

of direct evidence, circumstantial evidence, or a combination of direct and

circumstantial evidence. The quantum of evidence necessary to corroborate

an accomplice’s testimony is not required to be sufficient enough to support

the accused’s conviction independent of the accomplices testimony nor is it

required to extend to every portion of the accomplice's testimony. To the

contrary, only slight circumstances are required to corroborate an accomplice’s

testimony. The corroborating evidence is sufficient if it connects the accused

with the crime in question.

State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted).

The proof necessary to corroborate the accomplice’s testimony must include “some

fact testified to, entirely independent of the accomplice’s testimony, which, taken by itself,

leads to the inference, not only that a crime has been committed, but also that the defendant

is implicated in it; and this independent corroborative testimony must also include some fact

establishing the defendant’s identity.” Shaw, 37 S.W.3d at 903 (quoting Bigbee, 885 S.W.2d

at 803). In other words, the corroboration must include some fact establishing the identity

of the defendant as a criminal actor. State v. Boxley, 76 S.W.3d 381, 387 (Tenn. Crim. App.

2001). It is generally for the trier of fact to determine whether sufficient corroboration exists.

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Id. (citing Shaw, 37 S.W.3d at 903). However, as this Court has previously pointed out,

“[e]vidence which merely casts a suspicion on the accused . . . is inadequate to corroborate

an accomplice’s testimony.” Id. (quoting Griffis, 964 S.W.2d at 589).

Pursuant to the wiretap order and police intercepted phone calls, officers believed that

the Defendant Miller would be meeting with an individual from Kentucky at the Rivergate

Mall for a drug transaction on March 24, 2006. Kavares Davis testified that the Defendant

Turner delivered three kilos of cocaine to the Defendant Miller on March 23; however, one

of these kilos was “bad,” so the Defendant agreed to replace it the following day. On the

morning of March 24, the wireroom intercepted a phone call between the Defendants,

wherein the Defendant Miller asked the Defendant Turner to “come and drop it off.”

According to Davis, the Defendant Turner arrived at the apartment that morning with the

replacement kilo of cocaine. He stated that he let the Defendant Turner in through the garage

and that, after the sale was concluded, they stood outside of the apartment and talked for a

little while. Officers observed all of these coming and goings at the apartment and noticed

the blinds being closed once the Defendant Turner was inside the residence.

Davis testified that, later that day, he followed the Defendant Miller to the Rivergate

Mall. Officers intercepted a call between Davis and the Defendant Miller while the

Defendant Miller was inside the food court. Based on observations made by officers

watching the Defendant Miller, it appeared a transaction had occurred between the male in

the vehicle with Kentucky plates, later identified as Ned Wayne Thompson, and the

Defendant Miller. Detective Kajihara saw Thompson put something inside the trunk of his

car while he was stopped at a gas station. Thompson was then pulled over for speeding and,

upon a search of the vehicle, officers located two separately packaged kilos of cocaine.

The Defendant Miller and Davis met at a Mapco gas station and proceeded to the

Defendant Turner’s residence. The Defendant Miller first went inside. He then came back

outside, put a bag inside his coat, and returned inside the residence.

After the procurement of search warrants, officers found drugs and/or drug

paraphernalia at the Defendants’ residences. Much of the evidence was used in the resale

process. During the time officers were intercepting the Defendants’ calls, the Defendants

used coded language common to drug dealers, setting up meetings to sell drugs and obtain

money. Both Defendants had drug ledgers to record which customers owed money and how

much was owed. Moreover, at the March 10 pull of the Defendant Miller’s trash, items

common for use in drug dealing were discovered.

From consideration of the proof in the record before us, we find the evidence

sufficient to corroborate the testimony of the accomplice Kavares Davis. The accomplice’s

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testimony was corroborated by the taped telephone conversations, officers observations, and

the evidence recovered from the respective residences. This issue is without merit.

V. Sentencing

The Defendant Miller contends that the trial court erred in setting the length of his

individual sentences and in ordering him to serve consecutive sentences. On appeal, the

party challenging the sentence imposed by the trial court has the burden of establishing that

the sentence is erroneous. See Tenn. Code Ann. § 40-35-401, Sentencing Comm’n

Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a defendant

challenges the length, range, or 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).

However, 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. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also State v. Carter, 254 S.W.3d

335, 344-45 (Tenn. 2008). If our review reflects that the trial court failed to consider the

sentencing principles and all relevant facts and circumstances, then review of the challenged

sentence is purely de novo without the presumption of correctness. State v. Ashby, 823

S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d at 344-45.

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

evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the

principles of sentencing and arguments as to sentencing alternatives; (d) the nature and

characteristics of the criminal conduct involved; (e) evidence and information offered by the

parties on the enhancement and mitigating factors set forth in Tennessee Code Annotated

sections 40-35-113 and 40-35-114; (f) any statistical information provided by the

Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;

and (g) any statement the defendant wishes to make in the defendant’s own behalf about

sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.

Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).

Agent Smitherman testified at the sentencing hearing. She reiterated that she was

involved in a narcotics investigation involving the Defendant Miller. The investigation

began in December 2005 following the discovery of a body in White County. According to

Agent Smitherman, State records showed that the Defendant Miller had not been employed

in many years, and there were no wages reported to social security. When asked if she ever

saw the Defendant go to work while he was under surveillance, she stated that she did not.

A search of the Defendant Miller’s residence did not reveal any legitimate source of

employment. She observed receipts where the Defendant had spent large amounts of cash,

purchasing such things as cars, electronics, jewelry, and furniture. According to Agent

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Smitherman, the Defendant lived in a “nice” apartment complex. The lease agreement

reflected that the Defendant earned $5,600 a month from two business; however, these

businesses were operated by relatives, and Agent Smitherman did not believe the Defendant

to be employed at these locations.

The thirty-four-year-old Defendant Miller testified that he had two children and that

he had been supporting them until his incarceration. He relayed, “I did things that’s

inappropriate for wages . . . .” He was last gainfully employed at Ticketmaster until his

termination in 2003. He claimed that he did not buy his Rolex watch with drug proceeds and

that he did not purchase the Hummer or Chevrolet Impala, which belonged to other people.

The Defendant acknowledged that he had previously violated a community corrections

sentence. He also admitted that he never worked at the businesses listed on the apartment

lease.

The presentence report reflected that, in addition to the felony convictions used to

establish is Range II classification, the Defendant had five misdemeanor convictions for

reckless driving, violation of the driver’s license law, evading arrest, and driving while his

license was revoked. The amended judgment form (for selling over twenty-six grams of

cocaine) entered into evidence for range classification purposes also indicated that the

Defendant had a probation violation sustained for that conviction, and he had to serve his

eight-year sentence. The presentence report also showed that the Defendant had previously

been given an opportunity to participate in numerous rehabilitation programs.

A. Length

The Defendant’s conduct occurred subsequent to the enactment of the 2005

amendments to the Sentencing Act, which became effective June 7, 2005. The amended

statute no longer imposes a presumptive sentence. Carter, 254 S.W.3d at 343. As further

explained by our supreme court in Carter,

the trial court is free to select any sentence within the applicable range so long

as the length of the sentence is “consistent with the purposes and principles of

[the Sentencing Act].” [Tenn. Code Ann.] § 40-35-210(d). Those purposes

and principles include “the imposition of a sentence justly deserved in relation

to the seriousness of the offense,” [Tenn. Code Ann.] § 40-35-102(1), a

punishment sufficient “to prevent crime and promote respect for the law,”

[Tenn. Code Ann.] § 40-35-102(3), and consideration of a defendant’s

“potential or lack of potential for . . . rehabilitation,” [Tenn. Code Ann.] §

40-35-103(5).

Id. (footnote omitted).

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The 2005 Amendment to the Sentencing Act deleted appellate review of the weighing

of the enhancement and mitigating factors, as it rendered these factors merely advisory, as

opposed to binding, upon the trial court’s sentencing decision. Id. Under current sentencing

law, the trial court is nonetheless required to “consider” an advisory sentencing guideline that

is relevant to the sentencing determination, including the application of enhancing and

mitigating factors. Id. at 344. The trial court’s weighing of various mitigating and enhancing

factors is now left to the trial court’s sound discretion. Id. Thus, the 2005 revision to

Tennessee Code Annotated section 40-35-210 increases the amount of discretion a trial court

exercises when imposing a sentencing term. Id. at 344.

To facilitate appellate review, the trial court is required to place on the record its

reasons for imposing the specific sentence, including the identification of the mitigating and

enhancement factors found, the specific facts supporting each enhancement factor found, and

the method by which the mitigating and enhancement factors have been evaluated and

balanced in determining the sentence. See id. at 343; State v. Samuels, 44 S.W.3d 489, 492

(Tenn. 2001). If our review reflects that the trial court applied inappropriate mitigating

and/or enhancement factors or otherwise failed to follow the Sentencing Act, the

presumption of correctness fails and our review is de novo. Carter, 254 S.W.3d at 345.

The Defendant was convicted of three Class A felonies. As a Range II, multiple

offender, each offense carried a sentence of twenty-five to forty years. See Tenn. Code Ann.

§ 40-35-112(b)(1). In setting the length of each of the Defendant’s sentences, the trial court

found three enhancement factors to be applicable. First, the trial judge found that the

Defendant had a previous history of criminal convictions or criminal behavior in addition to

those necessary to establish his range, noting that the Defendant had prior misdemeanor

convictions. See Tenn. Code Ann. § 40-35-114(1). The trial court also determined that the

Defendant was a leader in the commission of the offense involving two or more criminal

actors: “Not necessarily the only leader, but he was clearly a leader in the commission of

these offenses.” See Tenn. Code Ann. § 40-35-114(2). Finally, the trial court noted the prior

revocation of the Defendant’s community corrections sentence and, thus, concluded that he

had failed to comply with the conditions of a sentence involving release into the community.

See Tenn. Code Ann. § 40-35-114(8). In mitigation, the trial court found that the

Defendant’s conduct neither caused nor threatened serious bodily injury. See Tenn. Code

Ann. § 40-35-113(1). The trial court then imposed a forty-year sentence for each conviction,

ruling as follows:

I’m not going to give any weight at all to the [mitigating factor] and I am going

to consider your criminal convictions, the fact that you are—had been involved

in release into the community for the very same thing and that you were a

leader in the offense. The prior misdemeanor convictions are not that great.

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But you were the leader in this offense, and you had been previously involved

in a release where the [c]ourt tried to kind of help you out.

B. Consecutive Sentencing

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in

its discretion, order sentences to run consecutively if it finds any one of the following criteria

by a preponderance of the evidence:

(1) The defendant is a professional criminal who has knowingly

devoted the defendant’s life 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;

(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). These criteria are stated in the alternative; therefore, only

one need exist to support the appropriateness of consecutive sentencing.

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In addition to these criteria, consecutive sentencing is also subject to the general

sentencing principles that the overall sentence imposed “should be no greater than that

deserved for the offense committed,” that it “should be the least severe measure necessary

to achieve the purposes for which the sentence is imposed,” and that the defendant’s

“potential for rehabilitation” be considered. Tenn. Code Ann. § 40-35-103(2), (4) and (5).

Additionally, we are advised that “the aggregate maximum of consecutive terms must be

reasonably related to the severity of the offenses involved.” Tenn. Code Ann. § 40-35-115,

Sentencing Commission Comments.

Tennessee Code Annotated section 40-35-115(b) provides that a trial court may, in

its discretion, order sentences to run consecutively if it finds any one of a number of criteria

by a preponderance of the evidence. In this case, the trial court ordered consecutive

sentences based on its finding that the Defendant “is a professional criminal who has

knowingly devoted [his] life to criminal acts as a major source of livelihood.” See Tenn.

Code Ann. § 40-35-115(b)(1). Applying State v. Wilkerson,6 905 S.W.2d 933, 939 (Tenn.

1995), the trial court also determined that the overall sentence related to the severity of the

offenses and was necessary to protect the public from further criminal conduct by the

Defendant.

C. Appellate Review

Our review reveals that the trial court considered the sentencing principles and all

relevant facts and circumstances, and correctly applied enhancement factors. The trial court

properly enhanced the Defendant’s sentence based upon his criminal history and because he

failed to comply with the conditions of a sentence involving release into the community.

According to the presentence report, the Defendant had five misdemeanor convictions and

a prior probation violation. The Defendant admitted to violating the terms of a prior

community corrections sentence. The trial court was also justified in finding that the

Defendant was a leader in the commission of the offense based upon the testimony presented

at trial. Being a leader in the commission of an offense involving two or more criminal

actors is not an element of the offense of conspiracy. Conspiracy involves an agreement

between two or more persons to engage in a criminal act; conspiracy does not require that

the State prove leadership in the criminal act. See State v. Santiago, 914 S.W.2d 116, 125

(Tenn. Crim. App.1995); State v. Little, 854 S.W.2d 643, 652 (Tenn. Crim. App. 1992)

(applying enhancement factor (2) to conspiracy convictions). These three enhancement

factors are sufficient to support the enhanced sentences. The weight to be given these

factors, as well as the mitigating factor, are within the trial court’s discretion.

6

The trial court noted that the Wilkerson factors were only required to be applied when the trial

court determined the Defendant to be a “dangerous offender”; however, the trial court chose to apply those

factors anyway.

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Morever, the evidence supports the trial court’s finding that the Defendant was a

professional criminal who knowingly devoted his life to criminal acts as a major source of

livelihood. Agent Smitherman’s testimony provided ample grounds to support this finding.

Because consecutive sentencing is warranted when at least one of the statutory criteria exists,

see State v. Black, 924 S.W.2d 912, 917 (Tenn. Crim. App. 1995), the record supports the

imposition of consecutive sentences.

The thirty-four-year-old Defendant had spent much of his adult life in the criminal

court system and had no significant employment history. Additionally, the trial court

concluded that the overall sentence related to the severity of the offenses and was necessary

to protect the public from further serious criminal conduct by the Defendant. We note that,

in addition to his prior probation violation, the Defendant had previously been given

opportunities to participate in rehabilitation programs, obviously to no avail.

We conclude that the trial court did not err or abuse its discretion in setting the

Defendant’s sentences at forty years. We further conclude that the trial court did not err or

abuse its discretion by ordering consecutive sentences. The Defendant is not entitled to relief

on this issue.

Conclusion

Based on the foregoing reasoning and authorities, we affirm the judgments of the trial

court as to both of the Defendants’ convictions and sentences.

_________________________________

DAVID H. WELLES, JUDGE

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