State v. Bernard Jerome Jones

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 19, 2000 Session

STATE OF TENNESSEE v. BERNARD JEROME JONES

Appeal from the Criminal Court for Davidson County

No. 98-C-2015 Cheryl Blackburn, Judge

No. M2000-00018-CCA-R3-CD - Filed October 20, 2000

The defendant was convicted by a Davidson County jury of possession with intent to sell or deliver

0.5 grams or more of cocaine. The trial court sentenced defendant to 16 years incarceration as a

Range II multiple offender. In this appeal as a matter of right, defendant makes the following

allegations of error: (1) the evidence was insufficient to support a finding of guilt; (2) the trial court

erred by ruling that if defendant testified, the state could impeach his credibility by introducing

defendant’s prior drug convictions; and (3) the trial court erred in sentencing defendant to 16 years

incarceration. After a thorough review of the record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE

OGLE , JJ., joined.

Glenn R. Funk (at trial) and Jennifer Lynn Thompson (on appeal), Nashville, Tennessee, for the

appellant, Bernard Jerome Jones.

Paul G. Summers, Attorney General and Reporter; David Findley, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Roger D. Moore, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The appellant was convicted of possession with intent to sell or deliver 0.5 grams or more

of cocaine and sentenced to 16 years incarceration as a Range II multiple offender. The defendant

filed this appeal as a matter of right alleging the following errors:

(1) the evidence was insufficient to support a finding of guilt;

(2) the trial court erred by ruling that if defendant testified, the state could impeach

his credibility by introducing defendant’s prior drug convictions; and

(3) the trial court erred in sentencing defendant to 16 years incarceration.

Upon careful review of the record, we affirm the judgment of the trial court.

I. FACTS

The defendant was present at the residence of Gerald Dorris and roommate, Chris Schutt, on

March 18, 1998. Dorris testified that defendant stopped by unexpectedly and ate dinner with them.

Dorris or Schutt inquired if anyone had any cocaine. Schutt testified that defendant responded that

he possessed cocaine.

Lieutenant Melvin Brown, accompanied by additional officers, appeared at the residence to

serve an arrest warrant on Dorris. Immediately after entering the residence, Brown saw defendant

place his hand quickly inside his pocket. Brown grabbed defendant by his arm and seized cocaine

from his hand. The cocaine consisted of one bag filled with eight individual bags of rock cocaine,

weighing 4.7 grams, plus one bag of powder cocaine, weighing 1.2 grams. Defendant was arrested,

and $345.00 in cash was found in his possession.

Officers also seized two glass test tubes, a glass plate with white powder on it, a metal crack

pipe, a metal crack pipe cleaner, a pair of forceps, a spoon with white residue on it, and marijuana.

No measuring scales were seized from the location.

Both Dorris and Schutt testified for the defense. Both testified they intended to use drugs

with the defendant, but that defendant had not asked to be paid for the drugs. Neither observed

defendant attempt to sell drugs that evening. The defendant did not testify at trial.

Based on the evidence, the jury convicted the defendant of possession with intent to sell or

deliver 0.5 grams or more of cocaine. This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient as a matter of law to sustain his

conviction for possession with intent to sell or deliver 0.5 grams or more of cocaine. We disagree.

A. Standard of Review

When an accused challenges the sufficiency of the evidence, this court must review the

record to determine if the evidence adduced during the trial was sufficient "to support the findings

by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This rule is

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applicable to findings of guilt predicated upon direct evidence, circumstantial evidence or a

combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1,18 (Tenn. Crim.

App.1996).

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Nor may this court substitute its

inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199

Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the

state the strongest legitimate view of the evidence contained in the record as well as all reasonable

and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926,

932 (Tenn. Crim. App.1995).

B. Analysis

Upon arrest, officers seized 4.7 grams of rock cocaine and 1.2 grams of powder cocaine from

defendant. Nine small plastic bags were found on defendant. The 4.7 grams of rock cocaine were

divided into eight individual bags, and the 1.2 grams of powder cocaine were located in one

individual bag. Additionally, officers seized $345 in cash from defendant. This evidence is

sufficient to support the verdict.

Tenn. Code Ann. § 39-17-419 states that, “[i]t may be inferred from the amount of a

controlled substance or substances possessed by an offender, along with other relevant facts

surrounding the arrest, that the controlled substance or substances were possessed with the purpose

of selling or otherwise dispensing.” Accordingly, a jury can infer from the amount of controlled

substances seized from a defendant, in addition to all other relevant facts surrounding the arrest, that

a defendant intended to sell or otherwise dispense the substances. See State v.Chearis, 995 S.W.2d

641, 645 (Tenn. Crim. App. 1999). Given that 4.7 grams of individually packaged crack cocaine,

1.2 grams of powder cocaine, and $345.00 were seized from the defendant, the evidence is sufficient

to show beyond a reasonable doubt that defendant possessed such substances with the intent to sell

or deliver them. This issue is without merit.

III. ADMISSIBILITY OF PRIOR CONVICTIONS

Defendant claims that the trial court erred by ruling that if defendant testified, the state could

impeach his credibility by introducing his three prior drug convictions for attempted possession of

cocaine over 0.5 grams for resale. This court has reached different conclusions as to whether prior

drug convictions are suggestive of dishonesty. See State v. Brian Roberson, C.C.A. No. 01C01-

9801-CC-00043, 1998 WL 917804, at *7 (Tenn. Crim. App. filed December 21, 1998, at Nashville),

perm. to app. denied (Tenn. May 13, 1999) (the act of drug dealing is suggestive of dishonesty);

State v. Jeffrey Walker, No. 01C01-9705-CC-00200, 1999 WL 961387, at *5 (Tenn. Crim. App.

filed October 22, 1999, at Nashville) (selling drugs does not involve “dishonesty or false

statement”). We need not resolve these conflicts in this case.

Defendant moved the trial court to disallow introduction of defendant’s record of prior drug

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convictions. The trial judge denied defendant’s motion indicating that she did not know what

defendant’s testimony would be, and further stated that drug violations involve dishonesty.

Although given an opportunity to do so, defendant failed to make an offer of proof as to what his

testimony would be; thus, we are unable to determine the nature of his proposed testimony.

Accordingly, defendant has failed to demonstrate that he was prejudiced by the trial court’s ruling.

See State v. Galmore, 994 S.W.2d 120, 125 (Tenn. 1999) (although an offer of proof is unnecessary

to preserve this issue, it may be the only way to demonstrate prejudice).

Despite defendant’s failure to make an offer of proof, this court will analyze defendant’s

allegation of error. Defendant contends that drug sales are not proof of dishonest behavior as

contemplated by Tenn. R. Evid. 609; accordingly, their probative value on defendant’s credibility

as a witness is minimal while their prejudicial effect is great. Regardless of whether the prior drug

convictions were admissible for impeachment purposes, they were admissible to prove defendant’s

intent to sell or deliver the drugs. Tenn. R. Evid. 404(b) states,

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity with the character trait. It may,

however, be admissible for other purposes. The conditions which must be satisfied

before allowing such evidence are: (1) [t]he court upon request must hold a hearing

outside the jury’s presence; (2) [t]he court must determine that a material issue exists

other than conduct conforming with a character trait and must upon request state on

the record the material issue, the ruling, and the reasons for admitting the evidence;

and (3) [t]he court must exclude the evidence if its probative value is outweighed by

the danger of unfair prejudice.

Evidence of other crimes committed by the accused, that are similar to the crime charged, is relevant

and admissible when it shows the requisite criminal intent necessary to prove the crime charged.

State v. Alfred F. Hampton, No. 01C01-9301-CR-00041, 1994 WL 17063, at *3(Tenn. Crim. App.

filed January 20, 1994, at Nashville) (citing Mays v. State, 238 S.W. 1096, 1103 (Tenn. 1921)).

In State v. Little, 854 S.W.2d 643 (Tenn. Crim. App. 1992), this court upheld the trial court’s

admittance of an accomplice’s testimony concerning the defendant’s prior drug sales. This court

found that the defendant’s prior bad acts rebutted his defense that “he was merely a victim of

circumstance and not the drug dealer that the state was attempting to paint him.” Id. at 649.

Additionally, this court concurred with the trial court’s determination that the probative value of the

testimony outweighed any danger of unfair prejudice. Id.

This court also reached a similar conclusion in State v. Johnny Wayne Tillery, No. 01C01-

9506-CC-00182, 1998 WL 148326 (Tenn. Crim. App. filed March 30, 1998, at Nashville), perm.

to app. denied (Tenn. December 14, 1998). In Tillery, the defendant appealed the trial court’s

decision to admit testimony and audio tapes revealing defendant’s participation in prior drug sales.

Id. at *7. This court upheld the trial court’s finding that the evidence that connected the defendant

to prior drug sales had sufficient probative value to outweigh any unfair prejudice, and the pattern

of prior drug sales was probative of the defendant’s knowledge and intent to possess cocaine for

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resale. Id.

In the present case, defendant did not dispute that he possessed cocaine; the crucial issue was

whether he intended to sell or deliver the cocaine. Evidence of defendant’s prior drug convictions

is clearly relevant to intent, and probative value would outweigh any danger of unfair prejudice. If

these prior convictions had been erroneously admitted for impeachment purposes under Tenn. R.

Evid. 609, their admission would be harmless error since they were admissible relative to

defendant’s intent under Tenn. R. Evid. 404(b).

IV. SENTENCING

A. Standard of Review

Finally, defendant contests the length of his sentence based upon the weight the trial court

assigned to the enhancement factors. This court’s review of the sentence imposed by the trial court

is de novo with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption

is conditioned upon an affirmative showing in the record that the trial judge considered the

sentencing principles and all relevant facts and circumstances. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991).

No particular weight for enhancement and mitigating factors is prescribed by the statute, as

the weight given to each factor is left to the discretion of the trial court as long as the trial court

complies with the purposes and principles of the sentencing act and its findings are supported by the

record. State v. Moss, 727 S.W.2d 229, 238 (Tenn. 1986); State v. Leggs, 955 S.W.2d 845, 848

(Tenn. Crim. App. 1997); see Tenn. Code Ann. § 40-35-210 Sentencing Commission Comments.

B. Analysis

The trial court found defendant to be a Range II offender and, after applying enhancing and

mitigating factors, sentenced him to 16 years incarceration. As defined by statute, a Range II

offender found guilty of a Class B felony is subject to a sentence of “not less than twelve nor more

than twenty years.” Tenn. Code Ann. § 40-35-112(b)(2). The defendant was convicted of three prior

Class C felonies, each felony resulting from criminal acts that occurred in separate twenty-four hour

periods. Defendant was properly classified as a Range II multiple offender. See Tenn. Code Ann.

§40-35-106(a)(1), (b)(4).

The trial judge first used eleven prior misdemeanors to enhance the sentence. See Tenn.

Code Ann. § 40-35-114(1) (prior criminal convictions). The trial court could have also used one of

the prior drug felony convictions as an enhancement factor because only two of defendant’s prior

felony convictions were needed to establish him as a Range II offender.

The trial court also enhanced defendant’s sentence since “the defendant has a previous

history of unwillingness to comply with the conditions of a sentence involving release in the

community.” Tenn. Code Ann. § 40-35-114(8). Defendant previously violated conditions of

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community corrections when he failed to attend a drug program, and defendant later violated

probation when he tested positive for drug use. The trial court properly applied this enhancement

factor.

The trial court sentenced defendant to the mid-range sentence of 16 years. As discussed

previously, the weight given each factor is subject to the trial court’s discretion. Moss, 727 S.W.2d

at 238. We find the trial court properly followed the sentencing guidelines, and the sentence

imposed was well within its discretion. This issue is without merit.

CONCLUSION

Based on our review of the record, we conclude that (1) the evidence was sufficient to sustain

the conviction; (2) defendant was not prejudiced by the trial court’s ruling regarding admission of

his prior convictions; and (3) the length of the sentence was proper. Accordingly, the judgment of

the trial court is affirmed.

______________________

JOE G. RILEY, JUDGE

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 19, 2000 Session

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STATE OF TENNESSEE v. BERNARD JEROME JONES

Criminal Court for Davidson County

No. 98-C-2015

No. M2000-00018-CCA-R3-CD

JUDGMENT

Came the appellant, BERNARD JEROME JONES, by counsel, and the state, by the Attorney

General, and this case was heard on the record on appeal from the Criminal Court of Davidson

County; and upon consideration thereof, this Court is of the opinion that there is no reversible error

in the judgment of the trial court.

It is, therefore, ordered and adjudged by this Court that the judgment of the trial court is

affirmed, and the case is remanded to the Criminal Court of Davidson County for execution of the

judgment of that court and for collection of costs accrued below.

It appears that appellant is indigent. Costs of appeal will be paid by the State of Tennessee.

Per Curiam

Joe G. Riley, Judge

David H. Welles, Judge

Norma McGee Ogle, Judge