State of Tennessee v. Clarence Boling

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 24, 2001 Session

STATE OF TENNESSEE v. CLARENCE BOLING

Direct Appeal from the Circuit Court for Blount County

No. C-12229 D. Kelly Thomas, Jr., Judge

No. E2000-01985-CCA-R3-CD

July 25, 2001

After waiving his right to a trial by jury, the defendant was convicted of possession of marijuana

with the intent to sell or deliver. For this offense he received a sentence of two years as a Range I,

standard offender. However, the trial court ordered this sentence suspended after the service of thirty

days.1 Through this appeal the defendant alleges that the trial court erred in allowing impeachment

evidence to be introduced through Officer Steve Blankenship and that the evidence is insufficient

to support his having possessed the marijuana with the intent to sell or deliver it. After reviewing the

record, we find that neither of these claims merit reversal and, therefore, affirm the defendant’s

conviction, but remand for correction of the judgment to reflect the defendant was convicted at a

bench trial.

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

Remanded.

JERRY L. SMITH, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS

T. WOODALL , J., joined.

Mack Garner, District Public Defender, Maryville, Tennessee, for appellant, Clarence Boling.

Paul G. Summers, Attorney General & Reporter; Angele M. Gregory, Assistant Attorney General;

Mike Flynn, District Attorney General; and John Bobo, Assistant District Attorney, for appellee,

State of Tennessee.

1

The trial court further ordered the defendant placed on supervised probation for the remainder of the sentence

and fined him two thousan d dollars.

OPINION

Factual Background

On February 23, 1998, Officer Ron Talbott of the Blount County Sheriff’s Office executed

a search warrant at the defendant’s residence. While in the process of searching the premises, the

defendant returned. Upon being told why the officers were there, the defendant stated, “You got me.

I’ll show you where it’s at.” He then proceeded to take them to his bedroom and point to the top

drawer of a chest. Within this drawer the officers found a set of hand scales and a bag of marijuana.

Subsequent testing determined that the latter was, in fact, 15.5 grams of marijuana. During the

search the officers also located another clear plastic sandwich bag in the chest, a loaded SKS assault

rifle, and two boxes of ammunition for this weapon.

After hearing this and additional proof at the defendant’s bench trial, the lower court

convicted the defendant as charged.2 As above-noted, the defendant now brings this appeal raising

two issues.

Notice of Impeachment Testimony

Through his first contention the defendant asserts that the trial court erred in allowing Officer

Steve Blankenship to testify concerning a confidential informant’s previous purchase or purchases

of narcotics from the defendant. More particularly, the defendant complains that the State did not

file a notice of impeachment prior to trial as required under Tennessee Rule of Evidence 608(b).

The relevant facts surrounding this controversy began with the defendant’s sweeping

assertion on direct examination that “I ain’t never sold pot and never will.” In response, the

prosecutor asked the defendant if he had ever seen Officer Blankenship, who was seated in the

courtroom. When the defendant stated that the officer might have been among those executing the

search warrant, the assistant district attorney more pointedly asked if the defendant recognized the

officer “from coming to your house as an individual and buying marijuana from you?” Thereafter

the defendant avowed that he had not seen Blankenship under those circumstances and re-affirmed

his claim that he had never sold marijuana.

At the conclusion of the defendant’s testimony the defense rested, and the State called

Blankenship in rebuttal. The defense objected when the questioning turned to the officer’s previous

involvement with the defendant’s residence. As aforementioned, the defense based this objection

on the State’s failure to provide notice. After brief discussion the trial court overruled the objection,

and the officer testified about his prior activities involving a confidential informant at the

defendant’s residence.

In beginning our examination of this issue, we observe that Tennessee Rule of Evidence

608(b)(3) does require “reasonable written notice of the impeaching conduct before trial” when the

accused is the individual against whom the evidence is to be offered. Tenn. R. Evid. 608(b)(3).

Nevertheless, the Advisory Commission Comment states that a witness making “a sweeping claim

of good conduct on direct examination ... may open the door to cross-examination without pretrial

2

The judgment form incorrectly reflects that the defendant pled guilty thus necessitating a remand for

correction of the judg ment.

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notice ....” Tenn. R. Evid. 608, Advisory Commission Comment. With the aforementioned assertion,

the defendant opened the door to questioning by the prosecution regarding the alleged prior drug sale

or sales. See State v. Mark Summers, No. 03C01-9606-CR-00235, 1997 WL 785677 at *2 (Tenn.

Crim. App. at Knoxville, Dec. 4, 1997). Thus, the issue of notice is meritless.

Rule 608(b) of the Tennessee Rules of Evidence provides, in pertinent part: “Specific

instances of conduct of a witness for the purpose of attacking or supporting the witness's credibility,

other than convictions of crime as provided in Rule 609, may not be proved by extrinsic evidence.”

Tenn. R. Evid. 608(b); see also State v. West, 844 S.W.2d 144, 149 (Tenn. 1992). Although,

presentation of extrinsic evidence under these circumstances was error, the defendant did not object

on this basis at trial and has, therefore, waived this claim on appeal. See Tenn. R. App. P. 36(a); see

also State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App. 1994).

Sufficiency

The defendant also challenges the sufficiency of the evidence supporting the trial court’s

verdict. While he does not contest the fact that he possessed the marijuana in question, the defendant

avers that the proof does not support the finding that he had the intent to sell or deliver this

substance.

When a defendant challenges the sufficiency of the evidence, this Court is obliged to review

that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and

approved by the trial judge, accredits the testimony of the State's witnesses and resolves all conflicts

in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked with a

presumption of innocence, the jury verdict of guilty removes this presumption “and replaces it with

one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of

proof rests with the defendant to demonstrate the insufficiency of the convicting evidence. Id. The

relevant question the reviewing court must answer is whether any rational trier of fact could have

found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.

App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may

be drawn therefrom. See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-

weighing or reconsidering the evidence in evaluating the convicting proof. State v. Morgan, 929

S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of

fact from circumstantial evidence." Matthews, 805 S.W.2d at 779. Although this case involved a

bench trial, the findings of the trial judge who conducted the proceedings carry the same weight as

a jury verdict. See, e.g., State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim. App. 1981); State v.

Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).

As above-noted, the defendant acknowledges that he was in possession of 15.5 grams of

marijuana. This amount of the substance would fall within the range necessary to support his E

felony conviction under Tennessee Code Annotated § 39-17-417(g)(1) if, as charged, he had

possessed the marijuana with the intent to sell or deliver the substance. See Tenn. Code Ann. § 39-

17-417(a)(4), (g)(1). Thus, the issue is whether sufficient evidence exists to prove that the defendant

had the requisite intent.

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While some of the trial court’s findings are questionable,3 and this is a close case, we

determine after according the State the strongest legitimate view of the proof that the verdict is

supported by the record. Tennessee law allows the trier of fact to infer intent from not only the

amount of narcotics seized but also the circumstances surrounding the arrest. See Tenn. Code Ann.

§ 39-17-419. To this end we note that the top drawer of a chest in the defendant’s bedroom contained

the marijuana, an empty clear plastic baggy, and hand scales for weighing such substances.4

Furthermore, a fully loaded SKS assault rifle and additional ammunition therefor were located in the

same room. Items such as scales, baggies, and weapons in the vicinity of narcotics and/or a

defendant have been among those objects found appropriate for consideration as to intent in these

circumstances. See, e.g., State v. Charles E. Kilpatrick, Jr., No. 01C01-9810-CR-00410, 2000 WL

19762 at *4 (Tenn. Crim. App. at Nashville, Jan. 13, 2000); State v. William Dorris Bucy, II, No.

02C01-9709-CC-00363, 1998 WL 855463 at *8 (Tenn. Crim. App. at Jackson, Dec. 10, 1998); State

v. Timothy Rathers, No.02C01-9701-CR-00392, 1998 WL 605095 at *3 (Tenn. Crim. App. at

Jackson, Sept. 14, 1998); State v. Althea Myers, No. 01C01-9510-CR-00355, 1997 WL 424435 at

*1 (Tenn. Crim. App. at Nashville, July 30, 1997); State v. Willie J. Houston, No.

02C01-9604-CR-00135, 1997 WL 272446 at *2 (Tenn. Crim. App. at Jackson, May 23, 1997). We

also observe that the trial record makes no mention of the seizure or even sight of paraphernalia

related to the personal use of marijuana (such as rolling papers or a bong) at the defendant’s

residence. Therefore, viewing the instant facts in the light most favorable to the State, there are

evidentiary inferences sufficient to support the element of intent to sell or deliver the drug. This

issue lacks merit.

Conclusion

For the foregoing reasons we find that none of the defendant’s allegations merit relief.

Accordingly, the judgment of the trial court is AFFIRMED and REMANDED for correction of the

judgment to reflect the defendant’s conviction at a bench trial.

___________________________________

JERRY L. SMITH, JUDGE

3

The trial jud ge foun d that the d efendan t’s expresse d willingn ess to share joints with othe rs (upon request)

constituted delivery. T his definition is contrary to caselaw dealing w ith sponta neous sharing. See State v. Lee O.

Anderson, No. W2000-00671-CCA-R3-CD, 2001 WL 128589 at *4-5 (Ten n. Crim. App. at Jackson, Feb. 9, 2001);

State v. Michael Brown, No. 01C01-9711-CC-00518, 1999 WL 7 43610 at *5 (Te nn. Crim . App. at N ashville, Sep t.

24, 199 9); State v. Copeland, 983 S.W.2d 703, 708 (Tenn. Crim. App. 1998)

4

Though the defendant claims that the scales were used to ensure those from whom he bou ght actua lly

provided him with the amount claimed, the trial judge question ed his cred ibility overa ll, and sub sequen t testimony calls

this claim into doubt. F or exam ple, this individual, so allegedly careful concerning the amount received at the time of

purcha se, later claim ed, “If som eone ask ed me to sell them a jo int, I’d roll them one and give it to them .”

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