State of Tennessee v. Francisco R. Liriano

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 18, 2011

STATE OF TENNESSEE v. FRANCISCO R. LIRIANO

Direct Appeal from the Criminal Court for Davidson County

No. 2009-D-3566 Mark J. Fishburn, Judge

No. M2011-01129-CCA-R3-CD - Filed April 17, 2012

A Davidson County jury convicted the Defendant-Appellant, Francisco R. Liriano, of

conspiring to deliver more than 300 grams of cocaine, a Class A felony. He received a

community corrections placement of fifteen years following one year of confinement. The

sole issue presented for our review is whether the evidence sufficiently established that

Liriano was a knowing participant in the conspiracy. Upon review, we affirm the judgment

of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J ERRY L. S MITH and

J AMES C URWOOD W ITT, J R., JJ., joined.

Derrick L. Scretchen, Nashville, Tennessee for the Defendant-Appellant, Francisco Liriano.

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

Attorney General; Victor S. (Torry) Johnson, III, District Attorney General and John

Zimmerman, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

Trial. In October 2009, the Metropolitan Nashville Police Department began

investigating Francisco R. Liriano for his involvement in the drug trade. The investigation

resulted from the September 2009 arrest of Marcus Marsh, who had sold cocaine to a police

informant on five different occasions and was in possession of 182 grams of powder cocaine,

ten grams of crack cocaine, and sixty-nine Xanax pills at the time of his arrest. Marsh told

Detective Justin Fox that he had bought cocaine from Liriano numerous times in the past, in

quantities up to two kilograms. As part of this investigation, Marsh called Liriano to arrange

the purchase of two kilograms of cocaine. In a number of recorded telephone calls that were

played for the jury at trial, Liriano discussed the details of the transaction with Marsh.

Liriano referenced getting the cocaine from another person and told Marsh that he could only

get one kilogram at the time and would get the other kilogram later. Liriano told Marsh to

bring the money for one kilogram, $36,000, to Liriano’s house. The two scheduled a time

to meet once the cocaine had arrived at Liriano’s house.

Marsh went to Liriano’s house, equipped with an audio recorder and transmitter, and

Liriano let Marsh in the front door. Two other men, later determined to be Jesus Jimenez

Olivera and Carlos Rene Corea, a.k.a. Jorge Berly, were there. One of the men went to a

bathroom to get the cocaine and brought it out to a table. Liriano took the cocaine and went

with Marsh to a bedroom. Liriano cut the package open to show Marsh that the contents

were, in fact, cocaine. Marsh put the money on the table, and Liriano picked it up. Marsh

then said that he had to go outside to his car to get a bag in which to put the drugs, which was

the signal to officers that the transaction had occurred. As Marsh exited the house, Liriano

and the two other men went into a back room to count the money.

Officers entered the house and found Liriano in the bedroom. Detective Joe Simonik

saw an open package of cocaine, which contained 996.1 grams, on a dresser in the master

bedroom. He also saw the bundle of money Marsh had used to buy the drugs on the bed.

Officers also found 2.9 grams of cocaine in a small plastic bag in Liriano’s pocket.

After Detective Simonik detained Liriano and advised him of his Miranda rights,

Liriano confessed his involvement in the transaction. He told Simonik that he called Olivera

to get the cocaine for Marsh. Liriano informed Detective Simonik that the house belonged

to him and that he had offered it as a meeting place. He said that he was to receive $500 and

a “little piece” of cocaine for arranging the transaction.

Following the proof at trial, the jury convicted Liriano of conspiring to deliver more

than 300 grams of cocaine. This timely appeal followed.

Analysis. Liriano challenges the sufficiency of the evidence establishing that he

knowingly participated in the conspiracy. He argues that “he was merely the middle man

between his co-defendants and Marcus March.” The State responds that the evidence at trial

sufficiently proved Liriano’s knowing participation in the conspiracy. We agree with the

State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,

the standard of review applied by this court is “whether, after reviewing the evidence in the

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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). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,

“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if

the evidence is insufficient to support a finding by the trier of fact of guilt beyond a

reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is

direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331

(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,

and must reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn.

1996). When reviewing issues regarding the sufficiency of the evidence, this court shall not

“reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.

1997). The Tennessee Supreme Court has stated that “[a] guilty verdict by the jury, approved

by the trial court, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659 (citing State v.

Grace, 493 S.W.2d 474, 476 (Tenn. 1973)). A guilty verdict also “removes the presumption

of innocence and replaces it with a presumption of guilt, and the defendant has the burden

of illustrating why the evidence is insufficient to support the jury’s verdict.” Id. (citing State

v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

Tennessee Code Annotated section 39-17-417 proscribes the knowing delivery of a

controlled substance, including cocaine. T.C.A. § 39-17-417(a)(2), (j)(5) (2006). A

conspiracy exists when:

two (2) or more people, each having the culpable mental state required for the

offense that is the object of the conspiracy, and each acting for the purpose of

promoting or facilitating commission of an offense, agree that one (1) or more

of them will engage in conduct that constitutes the offense.

Id. § 39-12-103(a) (2006). This court has described a conspiracy as “an agreement to commit

a crime” and has stated that “a conspiracy requires a knowing involvement.” State v.

Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993) (citations omitted). Liriano

contests only the proof of his “knowing involvement” in the conspiracy.

Viewed in the light most favorable to the State, the evidence sufficiently established

that Liriano knowingly participated in the conspiracy. Although Liriano claims there was no

proof he was aware of the conspiracy, the record demonstrates that Liriano arranged the

meeting time between the parties and discussed the details of the sale, including quantity and

payment, with Marsh over the telephone. When Marsh arrived at Liriano’s house, one of the

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men retrieved the package of cocaine from a bathroom. Liriano took the package from the

other man and went to the bedroom with Marsh. Liriano cut the package open to

demonstrate to Marsh that the contents were cocaine. Marsh put the money on the table, and

Liriano grabbed it. Liriano and the other two men then went to a back room to count the

money. After the police entered the house, they discovered the kilogram package of cocaine

and the rest of the purchase money in Liriano’s bedroom. They also found a quantity of cash

in Liriano’s dresser drawer and 2.9 grams of cocaine in his pocket. Finally, Liriano admitted

to Detective Simonik that he had anticipated payment of $500 and a small quantity of cocaine

in exchange for arranging the sale. This evidence sufficiently established that Liriano was

a knowing participant in the conspiracy. We conclude, therefore, that the State offered

sufficient evidence for any rational trier of fact to find Liriano guilty beyond a reasonable

doubt of conspiring to deliver more than 300 grams of cocaine to Marsh. He is not entitled

to relief.

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CAMILLE R. McMULLEN, JUDGE

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