State v. Frank C. Bright, Jr . ( 1999 )


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  •            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE              FILED
    JUNE 1999 SESSION
    September 24, 1999
    Cecil Crowson, Jr.
    Appellate Court Clerk
    STATE OF TENNESSEE,          )
    )    C.C.A. No. 01C01-9807-CR-00291
    Appellee,               )
    )    Davidson County
    v.                           )
    )    Honorable J. Randall Wyatt, Jr., Judge
    FRANK CHESTER BRIGHT, JR.,   )
    a/k/a MERVYN JORDAN,         )    (Possession with Intent to Deliver Cocaine;
    )    Facilitation of Possession of a Deadly Weapon)
    Appellant.              )
    FOR THE APPELLANT:                FOR THE APPELLEE:
    STEVEN M. WELLS                   PAUL G. SUMMERS
    222 Second Avenue North           Attorney General & Reporter
    Suite 360M
    Nashville, TN 37201               LUCIAN D. GEISE
    Assistant Attorney General
    425 Fifth Avenue North
    Nashville, TN 37243-0493
    VICTOR S. JOHNSON, III
    District Attorney General
    JOHN C. ZIMMERMAN
    Assistant District Attorney General
    222 Second Avenue North, Suite 500
    Nashville, TN 37201-1649
    OPINION FILED: _____________________________________
    AFFIRMED
    ALAN E. GLENN, JUDGE
    OPINION
    The defendant, Frank Chester Bright, Jr., appeals as of right from his conviction by
    a jury in the Davidson County Criminal Court of possession with intent to deliver over
    twenty-six grams of a substance containing cocaine, a Schedule II controlled substance,
    which is a Class B felony, and of facilitation of possession of a deadly weapon with intent
    to employ in the commission of or escape from an offense of possession with intent to
    deliver over twenty-six grams of a substance containing cocaine, which is a Class A
    misdemeanor. He was sentenced as a career offender to thirty years on the possession
    count and eleven months and twenty-nine days on the facilitation count, the sentences to
    run concurrently. He has appealed on the following claims of error:
    I.     Whether the trial court committed error in
    answering a question from the jury regarding the
    meanings of “facilitation” and “possession;”
    II.    Whether the trial court erred in admitting
    evidence of an alias used by the defendant;
    III.   Whether the verdict was supported by the weight
    of the evidence; and
    IV.    Whether the sentence imposed was appropriate.
    Based upon our review of the record related to each of these four alleged errors, we
    affirm the judgment of the trial court.
    PROCEDURAL BACKGROUND
    Frank Chester Bright, Jr. was indicted on March 18, 1997, along with two co-
    defendants, Shawntava Secimont Shields and Lisa Dianne Rice, on the following: Count
    I charged possession with intent to deliver twenty-six grams or more of a substance
    containing cocaine, and Count II charged possession of a deadly weapon, a pistol, with the
    intent to employ in the commission of or escape from an offense. Rice pleaded guilty to
    Count I, with Count II being dismissed as to her. Bright and Shields proceeded to trial. A
    mistrial was declared after the jury was unable to reach a verdict. Before the second trial,
    Shields pleaded guilty to the reduced charge of possession with intent to deliver .5 grams
    of a substance containing cocaine. The defendant was tried a second time. He was
    2
    convicted of possession with intent to deliver over twenty-six grams of a substance
    containing cocaine and with facilitation of possession of a deadly weapon, a pistol, with
    intent to employ in the commission of, or escape from, an offense. At the sentencing
    hearing, the court found him to be a career offender and sentenced him to the maximum
    penalty of thirty years on Count I and to eleven months and twenty-nine days on Count II,
    the sentences to run concurrently. Additionally, the court imposed a fine of $10,000.
    STATEMENT OF FACTS
    The arrests of the defendant, Shawntava Shields, and Lisa Rice on October 1,
    1996, were the result of an undercover operation carried out by Sergeant Greg Bunch of
    the Eighteenth Judicial District Task Force. In September 1996, Rice was in jail on an
    aggravated burglary charge. While in jail, Rice agreed to arrange a purchase of five
    ounces of cocaine for another female inmate whom she knew as Teresa. The plan was
    for Rice to arrange the sale through her supplier, once she was released from jail, and
    deliver the cocaine to Teresa’s boyfriend, Chris. On October 1, 1996, Rice was released
    on Community Corrections,1 and that same day she was contacted by telephone by the
    person she thought was Chris.          In fact, Sergeant Bunch had been informed by a
    confidential informant of the proposed sale, and it was Bunch, posing as “Chris,” who made
    this and subsequent calls to Rice to arrange the drug sale. “Chris” promised to pay Rice
    $1,000 for setting up the deal. Rice paged the defendant to set up the sale. Her home
    phone number was entered in the beeper recovered from the defendant at the crime
    scene. Arrangements were made for the sale of five ounces of cocaine for $5,000. The
    defendant promised Rice an “eight-ball” of cocaine for making the contact.2 Once a
    location for the sale was established, Shields, the defendant’s “sometimes” girlfriend, drove
    a Nissan Maxima to the agreed location, with the defendant in the front passenger seat
    and Rice in the back seat. On the way to the location, the defendant showed Rice five
    bags of cocaine and a gun, which he threatened to use if the deal turned out to be a setup.
    1
    Ms. Rice described this program as “real strict probation” requiring that she be in by 7:00
    p.m.; have drug tests every other week; complete sixteen hours of community service each month;
    go to meetings twice a week; and work forty hours a week.
    2
    An “eight-ball” is approximately 3.5 grams of cocaine, which is a typical amount for
    personal use.
    3
    The defendant, Shields, and Rice arrived at the agreed location shortly after
    Sergeant Bunch and parked close to his car.          Rice got out of the back seat and
    approached Sergeant Bunch, who sent her back to the Maxima for the drugs before he
    was willing to hand over the money. Once she returned with the cocaine and handed it to
    Sergeant Bunch, other undercover police officers, who had been monitoring the situation
    from close by in three separate vehicles, moved in, with strobe lights and sirens activated,
    to block the Maxima. As these police vehicles blocked that of the suspects, Shields, who
    was operating the suspects’ vehicle, rammed the vehicles in both her front and rear. The
    defendant then jumped from the passenger seat into Shields’s lap and began operating
    the gear lever himself, ramming the police vehicles blocking his own. However, the
    defendant was unsuccessful in extricating the vehicle, and he and Shields were arrested.
    The pistol, found on the passenger seat where the defendant had been sitting, was fully
    loaded. Recovered were two bags of cocaine, one weighing 14.2 grams and the other
    weighing 9.4 grams, on the driver’s seat of the Maxima; a bag of 2.7 grams of cocaine and
    a bag of 2.6 grams of marijuana on the defendant’s person; and on Shields’s person,
    twenty-one small bags of marijuana with a total weight of 19.2 grams and a marijuana joint
    laced with cocaine base.
    Other evidence from the scene included the bag of cocaine Rice had given to
    Sergeant Bunch, which weighed 5.1 grams, and the defendant’s wallet, containing a
    driver’s license in the name of “Mervyn Leo Jordan,” the person the defendant claimed to
    be when he was arrested.
    ANALYSIS
    I. Response to Juror Question
    The defendant challenges his conviction first on the ground that the trial court erred
    in answering a question from the jury concerning the meanings of “facilitation” and
    “possession” as used in the jury instructions. He does not challenge the sufficiency of the
    instructions read by the court prior to jury deliberations but only the court’s oral response
    4
    to a specific question regarding those instructions presented by the jury during
    deliberations. That question was: “What is the difference between, one, facilitation of
    possession and, two, possession? Please give an example.” The defendant argues that
    by telling the jury that “facilitation” was “something a little less than the offense itself,” the
    court misled the jury as to the applicable law and thereby caused substantial prejudice to
    the defendant. The defendant notes that a “charge should be considered prejudicially
    erroneous if it fails to fairly submit the legal issues or it if misleads the jury as to the
    applicable law,” State v. Hodges, 
    944 S.W.2d 346
    , 352 (Tenn. 1997), and he argues that
    the supplemental instruction had this effect. Specifically, the defendant argues that the jury
    was misled by the supplemental instruction given by the court because, had the jury
    properly understood the distinction between the commission of a felony and the facilitation
    of the commission of a felony, the defendant would have received a lesser sentence.
    The law regarding the offense of criminal responsibility for facilitation of a felony is
    stated in Tennessee Code Annotated § 39-11-403, which provides as follows:
    (a) A person is criminally responsible for the facilitation of
    a felony if, knowing that another intends to commit a
    specific felony, but without the intent required for
    criminal responsibility under § 39-11-402(2), the
    person knowingly furnishes substantial assistance in
    the commission of the felony.
    (b) The facilitation of the commission of a felony is an
    offense of the class next below the felony facilitated
    by the person so charged.
    The Sentencing Commission Comments for this section state that:
    A defendant charged as a party may be found guilty of
    facilitation as a lesser included offense if the defendant’s
    degree of complicity is insufficient to warrant conviction as a
    party. The lesser punishment is appropriate because the
    offender, though facilitating the offense, lacked the intent to
    promote, assist or benefit from the offense.
    The record shows, and both parties agree, that the court correctly instructed the jury
    on criminal responsibility for facilitation of a felony. 3 The trial court’s instructions to the jury
    3
    A jury is presumed to follow the trial court’s instructions. See State v. Barton, 
    626 S.W.2d 296
     (Tenn. Crim. App. 1981) (citing Bennett v. State, 
    530 S.W.2d 788
    , 789 (Tenn. Crim. App.
    1975); Sullivan v. State, 
    513 S.W.2d 152
    , 155 (Tenn. Crim. App. 1974); Arendall v. State, 
    509 S.W.2d 838
    , 842 (Tenn. Crim. App. 1974)).
    5
    were:
    Criminal Responsibility For Facilitation of Felony. A person is
    criminally responsible for the “facilitation of a felony” if,
    knowing that another intends to commit a specific felony, but
    without the intent required for criminal responsibility as
    explained to you on page 12 of these instructions, the person
    knowingly furnished substantial assistance in the commission
    of the felony.
    The section referred to from page 12 of the jury instructions was the following:
    A defendant is criminally responsible for an offense committed
    by the conduct of another if, acting with the intent to promote
    or assist the commission of the offense or to benefit in the
    proceeds or results of the offense, the defendant solicits,
    directs, aids, or attempts to aid another person to commit the
    offense.
    It is not uncommon for jurors to ask for clarification of instructions; and, given such
    a request, the trial court has authority to respond with a supplemental instruction. See
    State v. Forbes, 
    918 S.W.2d 431
    , 451-52 (Tenn. Crim. App. 1995) (finding no error for the
    court to provide supplemental instructions regarding circumstantial evidence, when
    supplemental instructions did not comment on specific evidence or trial testimony); State
    v. Chance, 
    778 S.W.2d 457
    , 461-62 (Tenn. Crim. App.), perm. app. denied (Tenn. 1989)
    (finding no error in supplemental instruction as to whether a printed name on a signature
    line constituted a signature); and Burton v. State, 
    394 S.W.2d 873
    , 875-76 (Tenn. 1965)
    (finding the trial court properly provided sua sponte a supplemental instruction regarding
    malice). The court in this case responded to the jury in the following manner:
    Now, I have tried to define what facilitation is as it relates to
    Count One, which is the count that has to do with someone
    being charged with being in possession of certain controlled
    substances for the purpose of delivery. I will do that, and it’s
    in the Charge, it’s obvious -- that facilitation of that offense is
    something a little less than the offense itself. And I have given
    the instruction as to criminal responsibility in the Charge. And
    I’ve given the instruction as to what the facilitation of that would
    be. That’s a lesser included offense.
    THE FOREPERSON: Yes. We understand --
    THE COURT: Now, hold on a minute. Let me -- let me finish.
    I don’t want to say too much here. And then I’ve also defined
    that in regards to the weapon. So I could say some things and
    give examples and -- and do a lot of things to sort of suggest
    6
    this, that or the other, but that is very, very shaky, delicate,
    whatever other type of word you’d use, because you are in the
    midst of your deliberations. And I don’t want to do anything at
    all to in any way influence, however subtly it would be done or
    whatever word you’d use to describe it during that process.
    Now, let me ask you a question. I’ve got facilitation
    defined in the Charge. And it is a lesser included offense. In
    other words, I think I can say without fear of contradiction or
    cause any problems that the facilitation of something is less
    serious under the law as you can figure out from reading the
    charge than the actual indicted offense. It is something,
    though, that the Court instructs you on, as it’s required to, to
    give you the option of the charged offense, the facilitation of
    that offense or not guilty at all. That’s basically what you’re
    into here. Would it help you if I made everyone of you a copy
    of this jury instruction for you to mull over individually, because
    I just can’t really start saying if it’s this, it’s this and that is this,
    this would be that. I just can’t do that. You know, what I’m
    saying now is the Court of Appeals will review this. I know
    some of this is not as simple as it maybe could or should be,
    but I’m left with certain requirements, certain guidelines as to
    what these offenses are and what the lesser included offenses
    are. And I’ve set it out in this jury instruction about as well as
    I can. I know it’s lengthy. And I know you’re all being very,
    very conscientious. And I appreciate everyone of you, but I
    just really can’t say too much more about what the difference
    is between one thing and the other, because it affects two
    counts. And all, I guess, I want to ask you to do is to read the
    instruction a little more. And I’d be more than happy to have
    my secretary make a copy of this instruction for each of you,
    individually, which I might should have done, to begin with.
    We don’t usually do that. But, if that’s an issue, I’ll be glad to
    try to accommodate you any way that I can. But, in the final
    analysis, you, the Jury, now, in your deliberations, will
    obviously, need to consider the entire instruction and consider
    it all. I don’t want to emphasize one part of it over the other.
    In other words, you’ve got this one question here about what
    the difference is between facilitation and what’s possession.
    That’s one aspect of the jury instruction. I would want you to
    consider the jury instruction in its totality and -- and read it all
    together. And the reason I’m saying if it would help you to give
    you each an individual copy, then -- then I would be more than
    happy to do that, you know.
    So I just really -- I just really can’t, frankly, Ms. Crispin, or
    the other Members of the Jury, get into explaining this and
    that, because once I start that, I get into something that is not
    my prerogative to do. No matter how you cut it, it will end up
    that way. And you, really, frankly, are the Jury that has to work
    out these issues. And I will respect the decision you reach,
    whatever it may be, but you’re the one, really, who needs to
    reach it. And that’s about the best I know how to answer that.
    I am very sorry I can’t help you more, but --
    THE FOREPERSON: Judge --
    THE COURT: -- there are certain limits.
    THE FOREPERSON: -- would it [be] appropriate to ask if any
    one of the jurors would like to have a copy?
    7
    THE COURT: Yes. It’s fine. Yes. I’d be glad --
    THE FOREPERSON: W ould anyone like to have a copy?
    JUROR: I don’t think it’s necessary.
    The defendant argues that when the court responded to the jury by noting that
    “facilitation of that offense is something a little less than the offense itself,” the court
    confused the jury by adding information that failed to distinguish between committing the
    felony itself, which required intent, and facilitating the commission of the felony, which
    required no intent on the part of the facilitating party. The defendant argues that facilitation
    of a felony is not “a little less than the offense itself” but is, following the logic of his
    argument, a great deal less because facilitation requires no intent to “promote or assist the
    commission of the offense, or to benefit in the proceeds or results of the offense.” Tenn.
    Code Ann. § 39-11-402. The defendant argues that there was no credible, direct evidence
    of his intent to commit a felony and that had the jury fully understood the distinction
    between commission of a felony and facilitation of the commission of a felony, he would
    have received the lesser sentence. However, the record shows sufficient proof of the
    defendant’s acts as principal in the commission of this crime, particularly through the
    testimony of Rice.
    The jury found the defendant guilty of Count I of the indictment, which charged him
    with possessing twenty-six grams or more of cocaine with intent to deliver. There was
    sufficient evidence for the jury to find that the defendant intended to benefit from the sale
    of cocaine to “Chris.” Rice testified that she had telephoned the defendant to ask if he
    could get five ounces of cocaine for the sale to “Chris,” and that the defendant responded
    that “he could get it” and could pick her up in “maybe thirty or forty-five minutes.” She
    testified that the defendant told her she would receive an “eight-ball” for setting up the deal.
    He also told her that he had a gun and that she could be hurt if the sale was, in fact, a
    setup. As they were in the car together, prior to meeting Sergeant Bunch, the defendant
    showed “about five bags” containing drugs to Rice. He said that he was going to give one
    to Rice and keep one for himself, as he put one bag in each of his two shirt pockets.
    8
    Further, at the time of his arrest, the defendant had on his person a bag containing 2.7
    grams of cocaine and another with 2.6 grams of marijuana. Also, two additional bags of
    cocaine, one with 14.2 grams and the other with 9.4 grams, were found in the driver’s seat
    where the defendant ended up, sitting on top of Shields whom he had been pushing to get
    out of the driver’s area. Based upon this evidence, a reasonable jury could find from the
    evidence that the $5,000 to be paid for the cocaine by “Chris” was not to be Rice’s but was
    to go to her supplier, the defendant.
    The jury also found the defendant guilty of facilitation of possession of a deadly
    weapon with intent to employ in the commission of, or escape from, an offense. According
    to evidence presented at trial, no readable prints were found on the gun. Although the
    defendant never used the gun, it was found where he had been sitting on the front
    passenger seat of the Maxima and was readily available and loaded. Therefore, there is
    evidence that would indicate the jury adequately made the distinction between commission
    of a felony and criminal responsibility for facilitation of commission of a felony.
    The defendant additionally claims that the trial court’s reference to review by this
    Court during the course of its answering the jury’s question somehow relieved the jury of
    a sense of responsibility for its decision. The defendant speculates that the jurors might
    have been inclined to take the easy way out and simply find possession of cocaine with
    intent to distribute rather than the lesser included crime of criminal responsibility for
    facilitation of possession of cocaine with intent to distribute, knowing that if there were any
    problems with this decision, another court would sort it out. However, the trial court’s
    reference to the appellate court was vague and cannot be read as suggesting that another
    court would alter the verdict or correct any errors. The defendant points to no proof to
    support a lack of serious commitment on the part of the jury. In fact, the record is to the
    contrary. Furthermore, knowledge of the availability of appeal is widespread enough to be
    considered general knowledge.
    When supplemental instructions are given to the jury, there is an additional need for
    9
    the court to also “admonish the jury not to place undue emphasis on the supplemental
    instruction and to consider it in conjunction with the entire charge.” Forbes, 918 S.W.2d
    at 451 (citing Burton, 394 S.W.2d at 876-77). In Forbes, the court concluded that
    supplemental instruction did not constitute reversible error, noting that:
    Although the jury’s rather cryptic inquiry perhaps deserved no
    reply other than to continue deliberating, the court merely re-
    read a portion of the instructions the jury had already heard.
    The trial court did not comment on specific evidence or
    testimony introduced at trial.           Moreover, while the
    supplemental instruction should have included an
    admonishment to place no undue emphasis upon it, the main
    charge to the jury included an instruction not to single out one
    instruction over any other.
    Forbes, 918 S.W.2d at 452.
    The written instructions of the trial court in this case included the admonition that, “The
    order in which these instructions are given is no indication of their relative importance. You
    should not single out one or more of them to the exclusion of another or others but should
    consider each one in the light of and in harmony with the others.” The trial court made no
    reference in its supplemental instruction to any specific evidence or testimony introduced
    at trial, and emphasized again that, “I would want you to consider the jury instruction in its
    totality and read it all together.” Thus, there was no error committed by the trial court in
    providing the supplemental instruction.
    II. Evidence of Defendant’s Alias
    Defendant’s second claim on appeal is that the trial court erred in admitting
    evidence of an alias used by him. Defendant argues first that the evidence was not
    relevant and that, even if relevant, it should have been excluded under Tennessee Rule
    of Evidence 403 as unfairly prejudicial.
    The standard for relevancy of evidence is set out in Tennessee Rule of Evidence
    401, which states: “‘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.” The test for admissibility
    is a lenient one. See Tenn. R. Evid. 401 Advisory Commission Comments. Preliminary
    10
    questions concerning the admissibility of evidence are determined by the court. See Tenn.
    R. Evid. 104.
    The defendant’s indictment identified him as “Frank Chester Bright, Jr., a.k.a Mervyn
    Jordan.” We recognize the rule that “[w]here no proof is offered of use of an alias by an
    accused it should not be included in an indictment.” Mallicoat v. State, 
    539 S.W.2d 54
    , 56
    (Tenn. Crim. App.), cert. denied (Tenn. 1976). This rule is modified by a showing, made
    in good faith, by the State to prove the use of an alias. See Banks v. State, 
    556 S.W.2d 88
    , 90 (Tenn. Crim. App.), cert. denied (Tenn. 1977) (finding no error when State had
    attempted to prove that the accused used an alias in talking with police about another
    offense). See also State v. Holloman, 
    835 S.W.2d 42
    , 45 (Tenn. Crim. App.), perm. app.
    denied (Tenn. 1992) (finding no error where there was contradictory testimony as to use
    of an alias). In State v. Zirkle, 
    910 S.W.2d 874
    , 887 (Tenn. Crim. App.), perm. app. denied
    (Tenn. 1995), the court found no prejudicial error for the indictment to refer to the
    defendant’s alias, when he had initially refused to identify himself to arresting officers who
    had then searched him and found identification bearing the alias. Likewise, in Young v.
    State, 
    566 S.W.2d 895
    , 899 (Tenn. Crim. App.), cert. denied (Tenn. 1978), it was not error
    for Larry Young’s indictment to also bear the alias, “Alfred Davis,” since he had identified
    himself by this name to police officers.
    Testimony at trial indicated that, at the time of his arrest, the defendant told the
    police that his name was Mervyn Jordan and that he had a driver’s license in his wallet in
    the name of Jordan. It was only during subsequent booking procedures, including
    fingerprinting, that the defendant’s true name was determined to be Frank Chester Bright,
    Jr.   We find that the alias was appropriately included on the indictment and was
    appropriately admitted as relevant evidence.
    Defendant argues that evidence of the alias and the false driver’s license should
    have been excluded by the trial court because “the unfair prejudice of this evidence can
    be said to substantially outweighed [sic] the minuscule, if any, probative value of that
    11
    evidence.” Yet, the defendant offers no proof of any prejudice to him other than the
    assertion that the jury decided his case on “irrelevant evidence.” Once the court has ruled
    that evidence is relevant, it is excluded under Rule 403 if, although relevant, “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. The defendant has proven
    none of these. He may not be happy with the fact that the jury knew he gave the police an
    alias or that he had a false driver’s license in his wallet, but that is a situation of his own
    doing. We find no error as to this claim.4
    III. Sufficiency of the Evidence
    Defendant’s third claim is that the verdict was not supported by the weight of the
    evidence. Our standard of review when the sufficiency of the evidence is questioned is
    “whether, after viewing the evidence in the light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of the crime beyond a
    reasonable doubt.” Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 2789, 
    61 L. Ed. 2d 560
     (1979). See also State v. Evans, 
    838 S.W.2d 185
    , 190-92 (Tenn. 1992);
    State v. Sheffield, 
    676 S.W.2d 542
    , 547 (Tenn. 1984); State v. Cabbage, 
    571 S.W.2d 832
    ,
    835 (Tenn. 1978). All questions involving the credibility of witnesses, the weight and value
    to be given the evidence, and all factual issues are resolved by the trier of fact. See State
    v. Pappas, 
    754 S.W.2d 620
    , 623 (Tenn. Crim. App.), perm. app. denied (Tenn. 1987). “A
    guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
    witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
    v. Grace, 
    493 S.W.2d 474
    , 476 (Tenn. 1973). Our Supreme Court stated the rationale for
    this rule:
    This well-settled rule rests on a sound foundation. The trial
    judge and the jury see the witnesses face to face, hear their
    testimony and observe their demeanor on the stand. Thus the
    trial judge and jury are the primary instrumentality of justice to
    determine the weight and credibility to be given to the
    4
    See State v. Stephenson, 
    878 S.W.2d 530
    , 540 (Tenn. 1994), for the finding that while an
    alias “should not be included in an indictment where there is no proof that the defendant on trial
    uses an alias, such error does not warrant reversal when there is no showing of prejudice to the
    defendant.”
    12
    testimony of witnesses. In the trial forum alone is there human
    atmosphere and the totality of the evidence cannot be
    reproduced with a written record in this Court.
    Bolin v. State, 
    405 S.W.2d 768
    , 771 (Tenn. 1966) (citing Carroll v. State, 
    370 S.W.2d 523
    (Tenn. 1963)).
    The essential elements of the crime with which the defendant was charged,
    possession with intent to deliver twenty-six grams or more of a substance containing
    cocaine, a Schedule II controlled substance, are:
    (1) the defendant knowingly possessed twenty-six grams
    or more of a substance containing cocaine, a
    Schedule II controlled substance; and
    (2) the defendant intended to deliver such controlled
    substance.
    Tenn. Code Ann. § 39-17-417.
    The defendant argues that the testimony of Lisa Rice provided the only direct evidence of
    his knowing possession of cocaine and intent to sell it and that her testimony was so
    suspect as to be unbelievable. Defendant points to Rice’s own criminal record and
    numerous convictions for truth-related crimes and to the fact that the only difference
    between the first trial, which resulted in a hung jury, and the second trial, which resulted
    in a conviction, was the fact that Rice testified only in the second trial.
    The trial court specifically instructed the jury that Rice was an accomplice, as a
    matter of law, and told the jury that in order for the defendant to be convicted, her
    testimony would have to be corroborated. The trial court also instructed the jury that Rice
    was a witness with a history of prior criminal activity and they could consider that in
    determining her credibility. Viewed in a light most favorable to the State, the record
    provides amble corroborating evidence of Rice’s testimony.5 Additionally, the witness’s
    credibility was, as we have noted, a matter for the trier of fact to determine. The jury heard
    the testimony of Rice; knew her role in this crime and her background; and nevertheless
    5
    See State v. Cabbage, 
    571 S.W.2d 832
    , 835 (Tenn. 1978), for a statement of the rule that,
    upon a conviction, all conflicts in testimony are resolved in favor of the State, and that on appeal,
    the State is entitled to the strongest legitimate view of the trial evidence and all “reasonable or
    legitimate inferences which may be drawn therefrom.”
    13
    apparently found her credible and her testimony persuasive. Such is the prerogative of the
    jury, and we will not impinge upon that prerogative.
    IV. Sentencing Issues
    The defendant’s fourth and last claim of error is that his sentence was not
    appropriate. He was sentenced as a career offender in accordance with Tennessee Code
    Annotated § 40-35-108(a)(1), which defines a career offender as a “defendant who has
    received: (1) Any combination of six (6) or more Class A, B or C prior felony convictions,
    and the defendant’s conviction offense is a class A, B or C felony.” The State produced
    documentation in its sentencing memorandum of six separate, prior Class C felony
    convictions; and the conviction offense now on appeal is a Class B felony. Having found
    the defendant to be a career offender, the trial court proceeded to sentence him as is
    required by Tennessee Code Annotated § 40-35-108(c) to the maximum sentence within
    the applicable Range III, which in this case is thirty years.
    When a defendant challenges the length, range, or manner of service of his
    sentence, the appellate court conducts a de novo review on the record. See Tenn. Code
    Ann. § 40-35-401(d). There is a presumption that the determinations made by the trial
    court are correct. See id. The burden of showing that the sentence is improper is upon
    the appellant. See id. Sentencing Commission Comments.
    The defendant argues two grounds to support his contention that his sentence was
    inappropriate. First, he argues that his sentence was “cruel and unusual,” and therefore
    violative of his constitutional rights under the U.S. Constitution’s Eighth Amendment.
    Because the defendant offers no proof, for instance, he does not seek to show that the
    sentence is disproportionate to the crime, we can only surmise that his claim is based on
    the severity of the mandatory sentence as a career offender. The United States Supreme
    Court has responded to a “cruel and unusual” claim based on the severity of a mandatory
    sentence: “Severe, mandatory penalties may be cruel, but they are not unusual in the
    constitutional sense. . . . There can be no serious contention, then, that a sentence which
    14
    is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’” Harmelin
    v. Michigan, 
    501 U.S. 957
    , 994-95, 
    111 S. Ct. 2680
    , 2701, 
    115 L. Ed. 2d 836
     (1991).
    In State v. Russell, 
    866 S.W.2d 578
    , 581 (Tenn. Crim. App. 1991), perm. app.
    denied (Tenn. 1992), this Court noted that Tennessee’s courts have held that the habitual
    criminal statute does not violate the constitutional protection against cruel and unusual
    punishment. See Pearson v. State, 
    521 S.W.2d 225
    , 229 (Tenn. 1975); State v. Kilby, 
    763 S.W.2d 389
    , 393-94 (Tenn. Crim. App.), perm. app. denied (Tenn. 1988); Mullins v. State,
    
    571 S.W.2d 852
    , 857-58 (Tenn. Crim. App. 1978), cert. denied, 
    440 U.S. 963
     (1979);
    Janow v. State, 
    567 S.W.2d 483
    , 485 (Tenn. Crim. App.), cert. denied (Tenn. 1978);
    Frazier v. State, 
    480 S.W.2d 553
    , 554 (Tenn. Crim. App.), cert. denied (Tenn. 1972). The
    Revised Criminal Code of 1989, which repealed the habitual criminal classification, reflects
    a continuing legislative intent to incarcerate those with lengthy criminal records. See
    Russell, 866 S.W.2d at 581. The record supports the finding of the trial court that the
    defendant was a career offender. He was convicted of second-degree burglary6 on six
    separate occasions and, as the trial court noted, there were other charges in his record.
    There has been no violation of the defendant’s constitutional right to be free from cruel and
    unusual punishments.
    Defendant’s second ground is that his sentence was “grossly disproportionate” to
    that received by his two co-defendants, each receiving ten years or less on alternative
    sentences. In Harrison v. State, 
    455 S.W.2d 617
    , 618 (Tenn. Crim. App. 1970), the
    defendant argued on appeal that his thirty-year sentence for armed robbery, imposed by
    jury verdict following his plea of not guilty, was excessive in view of the ten-year sentences
    imposed on two co-defendants who entered guilty pleas. In this case, as in Harrison, the
    fact that the co-defendants chose to accept certainty rather than risk the outcome of a trial
    does not now afford the defendant a basis for contesting the sentence imposed upon him.
    In State v. Groseclose, 
    615 S.W.2d 142
    , 149 (Tenn. 1981), cert. denied, 
    454 U.S. 882
    (1981), the court noted that “each of the accused persons had to be considered separately
    6
    Second-degree burglary was a daytime burglary of a residence. That same crime is now
    aggravated burglary under Tennessee Code Annotated § 39-14-403.
    15
    and on its own individual merits.” The Groseclose jury did not act arbitrarily or capriciously
    in imposing a lesser life imprisonment sentence on a co-defendant in a murder trial based
    on the “absence of any prior criminal record, duress or domination by another person,
    youth of the accused and contrition and remorse.” Id.
    Twelve mitigating factors similar to prior law are set out in Tennessee Code
    Annotated § 40-35-113. The list is not exclusive, and the trial judge may consider “any
    other factor consistent with the purposes of this chapter.” Id. The record includes the
    sentencing of co-defendant Shields who pleaded guilty to a lesser charge. At the time of
    sentencing, Shields was a 29-year-old, single mother of six children, ages 12 and under.
    The trial court recognized the abusive influence of the defendant in Shields’s life, her lack
    of a serious criminal record, the strong moral support of Shields’s mother, and the needs
    of her children. Shields received an eight-year sentence. She was placed on probation
    for five years, ordered to serve thirty days in prison, and placed on intensive probation for
    ninety days and regular probation for the remaining term. The record does not clarify the
    sentence of co-defendant Rice, but it is clear that she was in prison for a year prior to the
    first trial; that she pleaded guilty to all charges; and that her testimony in the second trial
    was key to the conviction of the defendant. Thus, we find no error in the differing
    sentences among the parties to this crime.
    CONCLUSION
    Based upon the record and the authorities set out herein, the judgment of the trial
    court is affirmed.
    ________________________________________
    ALAN E. GLENN, JUDGE
    CONCUR:
    16
    ____________________________________
    JOSEPH M. TIPTON, JUDGE
    ____________________________________
    JOE G. RILEY, JUDGE
    17