State of Tennessee v. Jason Lee Biles

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 18, 2012

STATE OF TENNESSEE v. JASON LEE BILES

Appeal from the Circuit Court for Warren County

No. F12833 Larry B. Stanley, Judge

No. M2011-02090-CCA-R3-CD - Filed December 12, 2012

The Defendant, Jason Lee Biles, appeals as of right from his jury conviction for delivery of

a Schedule II controlled substance, a Class C felony, and the trial court’s subsequent sentence

of ten years. The Defendant contends that the evidence submitted to the jury was insufficient

to support his conviction and that the trial court’s ten-year sentence was excessive and

inconsistent with the Sentencing Act. After reviewing the record and relevant authorities,

we conclude that the evidence is sufficient to support the Defendant’s conviction and that the

trial court’s ten-year sentence is neither excessive nor inconsistent with the Sentencing Act.

We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and N ORMA M CG EE O GLE, J., joined.

Dan T. Bryant, District Public Defender; and Trenena G. Wilcher, Assistant Public Defender,

McMinnville, Tennessee, for the appellant, Jason Lee Biles.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant Attorney

General; Lisa A. Zavogiannis, District Attorney General; and Joshua T. Crain, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

This case arises from a controlled drug transaction on July 19, 2010, that took place

in the parking lot of Stewart’s Pharmacy in Warren County, Tennessee. As a result of this

exchange, a Warren County grand jury indicted the Defendant for delivery of less than .5

grams of cocaine, a Class C felony, and delivery of .5 grams or more of cocaine within a

school zone, a Class B felony. The school zone charge was severed from the instant case.

The trial was held on May 19, 2011. At the trial, Chief Investigator Mark Martin

testified that he had been working for the Warren County Sheriff’s Department for fourteen

years and that he worked in the narcotics division. Chief Martin explained that during his

narcotics investigation he sought out the confidential informant, Lamar Martin, to assist him

in making a controlled buy from the Defendant. Chief Martin testified that Mr. Martin had

previously been indicted for the sale of prescription drugs and had stated that he did not want

to go to jail, so Chief Martin asked him to assist law enforcement in setting up a controlled

buy with the Defendant. Chief Martin explained that Mr. Martin agreed to assist them with

the controlled buy and that he explained the rules of being a criminal informant to Mr.

Martin. Chief Martin testified that Mr. Martin was “wired” with a listening device,

monitored by him and Investigator Jody Cavanaugh, when Mr. Martin called the Defendant

to set up the controlled buy. After the Defendant and Mr. Martin agreed on a location where

the buy was to take place,1 Mr. Martin, Mr. Martin’s wife, and his car were searched, and

Mr. Martin was given fifty dollars for the controlled drug transaction.

During Mr. Martin’s conversation with the Defendant, he requested that Mr. Martin

bring him some cigarettes when they met to exchange the drugs. So, in route to the controlled

drug buy, Mr. Martin stopped at a BP gas station to purchase the cigarettes the Defendant had

requested. Chief Martin testified that he and Inv. Cavanaugh continued to follow Mr.

Martin, monitoring him the entire time. Mr. Martin and the Defendant finally met in the

parking lot at Stewart’s Pharmacy and Mr. Martin exchanged the money for the drugs. This

transaction took approximately one minute. Chief Martin testified that he and Inv.

Cavanaugh left the parking lot first, before Mr. Martin returned to his car, and they returned

to the predetermined place where they would meet Mr. Martin to retrieve the drugs he had

purchased from the Defendant. Upon his arrival, Mr. Martin presented a rock of cocaine.

Chief Martin testified that he and Inv. Cavanaugh searched Mr. Martin’s car again upon his

return.

On cross-examination, Chief Martin acknowledged that he could not remember who

searched Mr. Martin’s car prior to the controlled drug buy nor could he remember how long

it took to conduct the search. He admitted that Mr. Martin’s wife was also present during the

controlled buy and that she was searched. Chief Martin also admitted that he and Inv.

Cavanaugh left the Stewart’s Pharmacy parking lot before Mr. Martin but that they only left

the scene after Mr. Martin began walking away from the Defendant’s car.

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Initially, Mr. Martin and the Defendant had agreed to meet at the Starlight Apartments, but the Defendant

called Mr. Martin and changed the location to Stewart’s Pharmacy shortly after their initial conversation.

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Investigator Cavanaugh testified that he had been in law enforcement twenty-six years

and currently worked as an investigator in the Narcotics Division. Inv. Cavanaugh explained

that he was present with Chief Martin when he met with the confidential informant, Mr.

Martin, to search his car and otherwise prepare him for his controlled drug purchase from the

Defendant. He testified that he “wired up” Mr. Martin before the controlled buy that day

and was present during Mr. Martin’s telephone call to the Defendant. Inv. Cavanaugh

explained that, based on his experience as a narcotics officer, he understood that the two men

were meeting because “Mr. Martin was going to purchase a half of a gram of crack cocaine

from [the Defendant].” He testified that he and Chief Martin then followed Mr. Martin to

meet the Defendant and monitored the transaction via the wire that Mr. Martin was wearing.

Inv. Cavanaugh further testified that he observed the Defendant standing beside Mr. Martin’s

car and that he heard the Defendant making the sale on the audio recording. After the sale

was complete, he and Chief Martin returned to the “meeting place” to wait for Mr. Martin.

Upon his arrival, they retrieved the “white rock” from Mr. Martin and placed it in an

envelope for submission to the Tennessee Bureau of Investigations (TBI).

On cross-examination, Inv. Cavanaugh acknowledged that he searched Mr. Martin’s

wife prior to the controlled buy because, although there were female officers, they did not

have any female narcotics officers. He also admitted that no one searched Mr. Martin again

after the stop at the BP gas station where Mr. Martin purchased the cigarettes that the

Defendant had requested but stated that he observed Mr. Martin exit and return to the car.

Inv. Cavanaugh acknowledged that he did not actually see the Defendant “hand Mr. Martin

any cocaine.” Inv. Cavanaugh stated that Mr. Martin was given fifty dollars to make the

controlled buy. He explained that he wrote Mr. Martin’s statement after the controlled drug

buy and that he simply made a clerical error in noting that Mr. Martin was given forty dollars

to make the controlled buy instead of fifty.

Agent Mark Young, a forensic science expert employed with TBI, testified that the

substance sent to the TBI for analysis regarding this case was a hard, rock-like substance that

was determined to contain 0.3 grams of cocaine base. He also testified as to the chain of

custody involving this evidence from the time it was sent to TBI until the day of trial.

Mr. Martin testified that he and the Defendant were once next door neighbors and that

he had known the Defendant since he was about twelve or thirteen years old. He explained

that he was a convicted felon and that he agreed to purchase drugs from the Defendant to

avoid receiving jail time after he was arrested for selling prescription drugs. Mr. Martin

testified that Chief Martin approached him about working as a confidential informant and

that they later had a conversation with the prosecutor in which the prosecutor agreed to

dismiss his charge in exchange for him giving them “specific names of people that [he] knew

were involved in the cocaine trade.” One of the names that Mr. Martin provided was that of

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the Defendant; he also gave law enforcement the Defendant’s phone number. Mr. Martin

testified that on July 19, 2010, he made a telephone call to the Defendant and that it was

monitored by both Chief Martin and Inv. Cavanaugh. The telephone call was then played

for the jury, and Mr. Martin explained to them his somewhat coded conversation with the

Defendant. Mr. Martin testified that their conversation concluded with him agreeing to meet

the Defendant at the Skyline apartments to purchase cocaine. He testified that Inv.

Cavanaugh searched him “thoroughly” before he went to meet the Defendant and that he

understood that they searched him to “make sure [he] didn’t have nothing on [him].” Mr.

Martin then got into his car and headed towards the Skyline apartments with Chief Martin

and Inv. Cavanaugh trailing him approximately three to four cars back the entire time.

During his drive to Skyline Apartments, the Defendant called and asked Mr. Martin to meet

him at a different location, Stewart’s Pharmacy. Mr. Martin agreed and informed law

enforcement of the change in location. Mr. Martin stated that in route to Stewart’s

Pharmacy, he stopped to get the cigarettes that he had agreed to bring for the Defendant; he

insisted that no one gave him any cocaine nor did he otherwise retrieve any cocaine during

this stop.

The jury found the Defendant guilty of delivery of less than .5 grams of cocaine.

The sentencing hearing was held on July 13, 2011. At the hearing, the State presented

the testimony of Sally Cantrell, an employee with the Board of Probation and Parole, who

prepared the pre-sentence report in this case. She testified that in her report, she noted the

following statement made by the Defendant: “Informant, phoned to purchase cocaine. I met

with informant and sold cocaine to informant.” Ms. Cantrell also testified as to the

Defendant’s prior, drug-related convictions and stated that the Defendant was on parole for

a conviction involving a Schedule II drug when he committed the offense in the instant case.

On cross-examination, Ms. Cantrell admitted that nothing in the presentence report indicated

that the Defendant was a violent offender or a danger to society other than to the extent that

selling drugs was considered a danger to society.

The State asked that the trial court apply the following enhancement factors: (1) that

the Defendant had a prior history of criminal convictions in addition to those necessary to

establish him as a Range II offender; (8) that the Defendant before trial or sentencing had

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

(13) that at the time the felony was committed, the Defendant was released on parole. See

Tenn. Code Ann. § 40-35-114(1), (8), (13). The Defendant, through counsel, pleaded for

leniency; however, the Defendant did not speak on his own behalf.

After hearing the arguments of counsel, the trial court found that the enhancement

factors requested by the State were applicable. The trial court noted that the Defendant had

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requested that it consider the mitigating factor that the criminal conduct neither caused nor

threatened serious bodily injury. However, the trial court noted that these drugs were

“controlled for a reason” and that it was not certain if it “would give a lot of credence to the

fact that it would not threaten serious bodily injury anyway to ingest cocaine.” The trial court

also noted that the Defendant’s prior record and “the seven different times he has either

violated probation or parole” evince “his unwillingness to comply [or cooperate] with law

enforcement.” Finding that the Defendant’s criminal history “extremely outweigh[ed] all the

other possible mitigating factors and enhancing factors involved” in the case, the trial court

sentenced the Defendant to serve ten years. The trial court denied probation, stating that it

believed the Defendant was “a danger to society, ha[d] shown no ability to be able to stop

passing dangerous controlled substances to other persons for profit” and concluding that it

had “no reason to believe that he c[ould] be rehabilitated at this time.” Finally, the trial court

stated that incarceration was appropriate to serve as a deterrent effect to others in the

community who engage in the same behavior and denied any form of split confinement.

The Defendant perfected a timely appeal.

ANALYSIS

The Defendant contends that the State presented evidence that was “rife with

inconsistencies” and that the evidence is insufficient to sustain his conviction. The

Defendant also challenges his ten-year sentence imposed by the trial court, alleging that it

is excessive and inconsistent with the Sentencing Act.

I. Sufficiency of the Evidence

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal 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 (1979). The court

does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in

the testimony and drawn all reasonable inferences from the evidence in favor of the state. See

State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and the

weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

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presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.

Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt

based upon direct evidence, circumstantial evidence, or a combination of [both] direct and

circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999). The standard of proof is the same, whether the evidence is direct or circumstantial.

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the

convicting evidence “‘is the same whether the conviction is based upon direct or

circumstantial evidence.’” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

The duty of this court “on appeal of a conviction is not to contemplate all plausible

inferences in the [d]efendant’s favor, but to draw all reasonable inferences from the evidence

in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

The Defendant was convicted of the delivery of a Schedule II Controlled Substance

pursuant to Tennessee Code Annotated section 39-17-417. That statute provides, in relevant

part, that it is an offense for a defendant to knowingly . . . deliver a controlled substance. See

Tenn. Code Ann. § 39-17-417(a)(2). “[A] person . . . acts knowingly with respect to the

conduct or to circumstances surrounding the conduct when the person is aware of the nature

of the conduct or that the circumstances exist.” Tenn. Code Ann. § 39-11-302(b). The terms

“deliver” and “delivery” are statutorily defined as “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). Thus, to support the conviction for

delivery of a controlled substance, the State must prove that the Defendant was “aware” that

he was transferring the controlled substance, cocaine, to another person and that the

substance was, in fact, cocaine.

The evidence presented at trial, viewed in a light most favorable to the State, showed

that on July 19, 2010, Mr. Martin, the confidential informant, bought cocaine from the

Defendant. During a recorded phone conversation with the Defendant, Mr. Martin told the

Defendant that he wanted to buy cocaine, and the Defendant agreed to sell him “.5 [grams

of] crack cocaine.” Inv. Cavanaugh and Chief Martin searched Mr. Martin, his car, and his

wife before they left to meet the Defendant and again after they returned. Mr. Martin

proceeded to the location where he and the Defendant agreed that the exchange would take

place; the officers constantly followed Mr. Martin during the controlled buy. Mr. Martin was

wearing a wire, and the entire controlled buy was recorded. The Defendant met Mr. Martin

in the Stewart’s Pharmacy parking lot, where Mr. Martin gave the Defendant fifty dollars in

exchange for cocaine, per their prior agreement. Agent Young confirmed that the substance

Mr. Martin purchased was, in fact, .3 grams of cocaine.

Although the Defendant argues that the State’s evidence was “rife with

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inconsistencies,” there was sufficient evidence presented at trial for a rational jury to

conclude that the Defendant delivered less than .5 grams of cocaine to Mr. Martin. The

jury’s verdict indicates that it accredited the testimony of Mr. Martin and resolved all factual

inconsistencies in favor of the State. As such, the Defendant is not entitled to relief on this

issue.

II. Sentencing

The Defendant contends that his sentence of ten years is excessive and contrary to the

purposes and principles of the Sentencing Act, specifically noting that the enhancement

factors used by the trial court were insufficient to justify the imposition of a sentence “at the

top of the range.” The State responds that the trial court was “impressed” by the Defendant’s

lengthy criminal history and that the Defendant committed the instant offense while on

parole. The State further responds that the trial court followed the purposes and principles

of sentencing when it imposed the ten-year sentence and that the Defendant is not entitled

to relief.

Before a trial court imposes a sentence upon a convicted criminal defendant, it 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). To facilitate appellate review, “it is critical

that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated

section 40-35-210(e)” and articulate in the record its reasons for imposing the specific

sentence. See State v. Susan Renee Bise, -- S.W.3d --, No. E2011-00005-SC-R11-CD, 2012

WL 4380564, at *20 n.41 (Tenn. Sept 26, 2012).

The 2005 amendments to the Sentencing Act “served to increase the discretionary

authority of trial courts in sentencing.” Id. at *18. Currently, upon a challenge to the

sentence imposed, it is the duty of this court to analyze the issues under “an abuse of

discretion standard of review, granting a presumption of reasonableness to within-range

sentencing decisions that reflect a proper application of the purposes and principles of our

Sentencing Act.” Id. at *17. Those purposes and principles include “the imposition of a

sentence justly deserved in relation to the seriousness of the offense,” Tennessee Code

Annotated section 40-35-102(1), a punishment sufficient “to prevent crime and promote

respect for the law,” Tennessee Code Annotated section 40-35-102(3), and consideration of

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a defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code

Annotated section 40-35-103(5). State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). The

burden of showing that a sentence is improper is upon the appealing party. See Tenn. Code

Ann. § 40-35-401, Sentencing Comm’n Cmts.; see also State v. Arnett, 49 S.W.3d 250, 257

(Tenn. 2001).

Our amended Sentencing Act no longer imposes a presumptive sentence. Carter, 254

S.W.3d at 343. Tennessee Code Annotated section 40-35-210 was amended to provide as

follows:

(c) The court shall impose a sentence within the range of punishment,

determined by whether the defendant is a mitigated, standard, persistent,

career, or repeat violent offender. In imposing a specific sentence within the

range of punishment, the court shall consider, but is not bound by, the

following advisory sentencing guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement factors

set out in §§ 40-35-113 and 40-35-114.

(d) The sentence length within the range should be consistent with the

purposes and principles of this chapter.

Tenn. Code Ann. § 40-35-210(c), (d).

“[T]he 2005 amendments rendered advisory the manner in which the trial court selects

a sentence within the appropriate range, allowing the trial court to be guided by—but not

bound by—any applicable enhancement factors when adjusting the length of a sentence.”

Bise, 2012 WL 4380564, at *17. In accordance with the broad discretion now afforded our

trial court’s sentencing decisions,

misapplication of an enhancement or mitigating factor does not

invalidate the sentence imposed unless the trial court wholly departed from the

1989 Act, as amended in 2005. So long as there are other reasons consistent

with the purposes and principles of sentencing, as provided by statute, a

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sentence imposed by the trial court within the appropriate range should be

upheld.

Id.

In the instant case, the trial court found that three enhancement factors applied: (1)

that the Defendant had a prior history of criminal convictions in addition to those necessary

to establish him as a Range II offender; (8) that the Defendant before trial or sentencing had

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

(13) that at the time the felony was committed, the Defendant was released on parole. The

Defendant does not contest their applicability. Additionally, as the authority above indicates,

the trial court is granted a presumption of reasonableness to within-range sentencing

decisions that reflect a proper application of the purposes and principles of our Sentencing

Act. Classified as a Range II offender, the Defendant’s range of punishment was between

six and ten years. Despite his plea for leniency, the trial court sentenced him to the

maximum, noting that the Defendant’s criminal history carried the most weight in its

determination. The trial court imposed a within-range sentence, albeit the maximum, and the

record both supports the trial court’s determination and evinces that the trial court considered

and properly applied the principles and purposes of the Sentencing Act. Therefore, the

Defendant is not entitled to relief on this issue.

CONCLUSION

Accordingly, the judgment of the trial court is affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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