State of Tennessee v. Michael Alvin Harding

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 8, 2013

STATE OF TENNESSEE v. MICHAEL ALVIN HARDING

Appeal from the Circuit Court for Maury County

No. 21168 Robert T. Jones, Judge

No. M2012-02262-CCA-R3-CD - Filed November 14, 2013

The defendant, Michael Alvin Harding, appeals his Maury County Circuit Court jury

convictions of the sale of .5 grams or more of cocaine and the sale of .5 grams or more of

cocaine within 1,000 feet of a school, claiming that the evidence was insufficient to support

his convictions, that the trial court erred in its instructions to the jury, and that the 15-year

sentence was excessive. Discerning no error, we affirm.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.

W EDEMEYER and R OGER A. P AGE, JJ., joined.

Debbie L. Zimmerle, Lewisburg, Tennessee, for the appellant, Michael Alvin Harding.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Mike Bottoms, District Attorney General, and Brent A. Cooper, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The defendant’s convictions relate to events on May 23 and 25, 2011, in

Columbia. At trial, Columbia Police Department (“CPD”) Narcotics and Vice Unit Officer

Jason Dark testified that he utilized the services of paid informant Steve Hamvy on May 23

and 25, 2011, to perform two controlled purchases of crack cocaine from the defendant. On

May 23, 2011, Mr. Hamvy contacted Officer Dark with information that Mr. Hamvy could

purchase crack cocaine from an individual known as “Al.” Using the address provided by

Mr. Hamvy for the potential location of the drug sale, Officer Dark learned that the address

belonged to the defendant. Officer Dark then obtained a photograph of the defendant, and

Mr. Hamvy confirmed that the defendant was the man known to him as “Al.”

At that point, Officer Dark provided Mr. Hamvy “with $100 of photocopied

money” to purchase crack cocaine. Mr. Hamvy was searched, provided with a vehicle to

drive to the location of the transaction, and fitted with a hidden video camera and audio

recording equipment to record the transaction. Mr. Hamvy traveled first to the defendant’s

residence, then he went with the defendant to another location to get the crack cocaine.

Officer Dark followed. Following the transaction, Mr. Hamvy and Officer Dark returned to

the police station, where Officer Dark took the recorder and the purchased drugs from Mr.

Hamvy. Officer Dark said that the amount of cocaine that Mr. Hamvy received during the

May 23, 2011 transaction was typical of the amount generally available for $100. Officer

Dark acknowledged that the actual hand-to-hand transaction was not recorded by the video

camera.

Officer Dark testified that, using a computer program available from the

Columbia City Planning Department, he determined that the distance between the

defendant’s residence and the College Hill School was 737 feet. He said that he verified this

measurement using a “wheel” measuring device.

Officer Dark testified that he and Mr. Hamvy followed the same procedure to

execute a controlled buy from the defendant on May 25, 2011. On that day, Mr. Hamvy

drove to the defendant’s residence, where he waited while the defendant “walked up the

street[] and then returned” with the crack cocaine. After that transaction, Mr. Hamvy and

Officer Dark returned to the police station, where Officer Dark again collected the

contraband and recording equipment. The amount of substance obtained by Mr. Hamvy on

May 25, 2011, was slightly more than that obtained during the May 23 transaction. Officer

Dark testified that he gave the contraband from both transactions to the police department

evidence clerk.

Officer Dark testified that he listened to telephone calls made by the defendant

from the jail. In one conversation, the defendant assures his listener that he will be out of jail

in a month and that he was only guilty of facilitation because he “had to call someone to get

it.” The defendant said, “‘I’m not a dope dealer. I’m a smoker.’”

Ricky Broadway, an employee of the Maury County Board of Education,

testified that the College Hill School, also known as Horace Porter, is a public school

operating as “an alternative school, a discipline school” for children in all grades.

CPD Lieutenant Jeremy Thomas Alsup testified that he obtained a “mid-range

size” evidence envelope from the CPD evidence clerk and took it to the Tennessee Bureau

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of Investigation (“TBI”) laboratory on May 27, 2011.

TBI Special Agent and Forensic Scientist Denotria Patterson testified that she

examined the contents of the envelope obtained from Lieutenant Alsup. The envelope

contained two separate packages of a rock-like substance. Testing established that one

package contained .55 grams of cocaine base. The second contained .71 grams of cocaine

base.

Steve Hamvy testified that he agreed to act as a confidential informant in

exchange for money. On May 23, 2011, he went to Officer Dark and suggested that he could

buy crack cocaine from the defendant, whom he had known for less than six months. After

Officer Dark agreed, Mr. Hamvy telephoned the defendant and arranged to purchase $100

worth of crack cocaine. Mr. Hamvy said that while at the police station, he was searched,

fitted with recording equipment, and provided with five $20 bills with which to purchase

drugs from the defendant. He then traveled to the defendant’s residence in a car provided

by the CPD.

At the defendant’s residence, the defendant telephoned another person to get

the cocaine. Mr. Hamvy said that the defendant told him that the drugs would be there in 10

minutes. While they waited, the defendant performed yard work at the house next door.

After a while, the defendant accepted another telephone call and then told Mr. Hamvy that

they would have to go to another location to obtain the cocaine. They left and went to

another location, where Mr. Hamvy obtained the drugs. Mr. Hamvy returned the defendant

to his residence and then returned to the police department, where he gave the cocaine to

Officer Dark.

Two days later, Mr. Hamvy again contacted Officer Dark and said that he could

“make another buy to make more money.” Officer Dark agreed, and Mr. Hamvy came to the

police station, where the same protocols were followed before he left to go to the defendant’s

residence. When he arrived at the defendant’s residence, the defendant “was across the street

on the porch” of another house smoking marijuana with “the young lady that he was talking

to.” He and the defendant went to the defendant’s residence, where they listened to music

until a car pulled up, and the defendant went to meet it. The defendant then walked up the

street while Mr. Hamvy waited in the garage of the defendant’s residence. Mr. Hamvy had

given the defendant money, and the defendant returned with crack cocaine and gave it to Mr.

Hamvy. After he received the cocaine from the defendant, Mr. Hamvy returned to the police

department and gave the cocaine to Officer Dark.

During cross-examination, Mr. Hamvy admitted that he was using cocaine

during the time frame of the buys but insisted that he did not use it on those days.

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Following this testimony, the State rested. After a Momon colloquy, see State

v. Momon, 18 S.W.3d 152, 161-62 (Tenn. 1999), the defendant elected not to testify and

chose not to present any proof. The jury convicted the defendant of the lesser included

offense of the sale of .5 grams or more of cocaine in count one and as charged of the sale of

.5 grams or more of cocaine in a school zone in count two. The trial court imposed

concurrent, Range I sentences of 10 years and 15 years, respectively. The defendant’s 15-

year sentence for selling cocaine in a school zone must be served at 100 percent by operation

of law.

The defendant filed a timely but unsuccessful motion for new trial followed by

a timely notice of appeal. In this appeal, the defendant challenges the sufficiency of the

convicting evidence, the propriety of certain of the trial court’s instructions to the jury, and

the imposition of a 100-percent service requirement for his 15-year sentence. We consider

each claim in turn.

I. Sufficiency

The defendant asserts that the evidence is insufficient to support his

convictions, claiming that the evidence, at most, established that he facilitated Mr. Hamvy’s

purchases of cocaine from the actual seller of the drug. The State contends that the evidence

was sufficient to support the defendant’s convictions.

We review the defendant’s challenge to the sufficiency of the evidence mindful

that our standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443

U.S. 307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003).

“[D]irect and circumstantial evidence should be treated the same when weighing the

sufficiency of such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

When examining the sufficiency of the evidence, this court should neither

re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact.

Winters, 137 S.W.3d at 655. Questions concerning the credibility of the witnesses, the

weight and value of the evidence, as well as all factual issues raised by the evidence are

resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

Significantly, this court must 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. Id.

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“It is an offense for a defendant to knowingly [s]ell a controlled substance.”

T.C.A. § 39-17-417(a)(3) (2006). A substance containing cocaine is a Schedule II controlled

substance. Id. § 39-17-408(b)(4). “A person commits criminal attempt who, acting with the

kind of culpability otherwise required for the offense [a]cts with intent to cause a result that

is an element of the offense, and believes the conduct will cause the result without further

conduct on the person’s part.” Id. § 39-12-101(a)(2). Where the State establishes that the

violation of subsection 417(a)(3) “occurs on the grounds or facilities of any school or within

one thousand feet (1,000') of the real property that comprises a public or private elementary

school [or] middle school,” the defendant is subjected to a higher offense classification, a

greater fine, and a minimum mandatory sentence. See id. § 39-17-432.

The defendant does not challenge the identity or weight of the substance

involved and does not contest the jury’s finding that the May 25, 2011 offense occurred

within a drug-free school zone. Instead he argues that because he merely acted as an

intermediary between Mr. Hamvy and the actual seller of the cocaine, he was guilty only of

the lesser included offense of facilitating the sale of cocaine. The evidence in the light most

favorable to the State, however, established that although the defendant himself procured the

cocaine from another source, he sold that cocaine to Mr. Hamvy. During both transactions,

Mr. Hamvy gave $100 to the defendant in exchange for crack cocaine. Agent Patterson

testified that the May 23 amount was .55 grams of crack cocaine and that the May 25 amount

was .71 grams of crack cocaine. Additionally, Officer Dark testified that the defendant’s

residence, which was the location of the second transaction, was 737 feet from the College

Hill school. This evidence is sufficient to support the defendant’s convictions.

II. Jury Instructions

The defendant next contends that the instructions provided by the trial court

to the jury just prior to the jury’s beginning deliberations placed undue pressure on the jury

to reach a verdict quickly. The State asserts that the defendant has waived our consideration

of this issue by failing to lodge a contemporaneous objection and by failing to support his

argument with citation to relevant authorities.

The record establishes that at the completion of the proof and the parties’

summations at approximately 4:00 p.m., the trial judge told the jury that he had a prior

commitment that would necessitate his leaving promptly at 5:30 p.m. The court informed

the jury that as a result, unless it reached its verdict by “5:14 or so,” the court would

reconvene for deliberations on the following morning. The trial court emphasized to the jury

that it did not “want to suggest you to rush.” The jury retired to deliberate at 4:37 p.m. Just

after sending the jury to deliberate, the trial court asked the parties if they had any objections

to the jury instructions, and defense counsel replied, “No, your Honor.” The jury reached its

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verdict at 5:18 p.m., and the defendant claimed in his motion for new trial that the trial court

placed undue pressure on the jury to reach a verdict quickly.

We agree with the State that the defendant’s failure to lodge a

contemporaneous objection to the trial court’s instruction results in a waiver of plenary

review of this issue. See Tenn. R. App. P. 36(b) (“Nothing in this rule shall be construed as

requiring relief be granted to a party responsible for an error or who failed to take whatever

action was reasonably available to prevent or nullify the harmful effect of an error.”); see

also State v. Killebrew, 760 S.W.2d 228, 235 (Tenn. Crim. App. 1988) (waiver applies when

the defendant fails to make a contemporaneous objection); State v. Jenkins, 733 S.W.2d 528,

532 (Tenn. Crim. App. 1987); State v. Rhoden, 739 S.W.2d 6, 11-12, 18 (Tenn. Crim. App.

1987). Similarly, he has waived our consideration of the issue by failing to support his

argument with citation to appropriate authorities. See Tenn. R. App. P. 27(a)(7) (stating that

the appellant’s brief must contain an argument, “setting forth . . . the contentions of the

appellant with respect to the issues presented, and the reasons therefor . . . with citations to

the authorities and appropriate references to the record . . . relied on; and . . . for each issue,

a concise statement of the applicable standard of review”); Tenn. Ct. Crim. App. R. 10(b)

(“Issues which are not supported by argument, citation to authorities, or appropriate

references to the record will be treated as waived in this court.”). Moreover, the record does

not support the defendant’s claim. Instead, the record clearly establishes that the trial court’s

instructions were more in the nature of administering its own schedule than encouraging the

jury to reach a speedy verdict. Indeed, the court informed jurors that they could return the

following morning and deliberate at their leisure in a room reserved solely for that purpose.

III. Sentencing

Finally, the defendant asserts that the trial court’s order that he serve 100

percent of his 15-year sentence for selling cocaine in a school zone is excessive because the

proof established that school was not in session at the time of the sale. As the State correctly

points out, however, service of 100 percent of the statutory minimum mandatory sentence

is required by statute for a conviction of selling cocaine in a school zone. Code section 39-

17-432 provides, in pertinent part:

(c) Notwithstanding any other provision of law or the sentence

imposed by the court to the contrary, a defendant sentenced for

a violation of subsection (b) shall be required to serve at least

the minimum sentence for the defendant’s appropriate range of

sentence. Any sentence reduction credits the defendant may be

eligible for or earn shall not operate to permit or allow the

release of the defendant prior to full service of the minimum

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sentence.

(d) Notwithstanding the sentence imposed by the court, the

provisions of title 40, chapter 35, part 5, relative to release

eligibility status and parole, shall not apply to or authorize the

release of a defendant sentenced for a violation of subsection (b)

prior to service of the entire minimum sentence for the

defendant’s appropriate range of sentence.

T.C.A. § 39-17-432(c)-(d). The defendant’s conviction of the sale of more than .5 grams of

cocaine within 1,000 feet of a school is a Class A felony, see id. § 39-17-432(b), and the

minimum Range I sentence for a Class A felony offense is 15 years, see id. § 40-35-

112(a)(1). Thus, the defendant is statutorily required to serve 100 percent of the 15-year

sentence imposed by the trial court. That the school may not have been in session does not

alter that fact. Nothing in Code section 39-17-432 suggests that its provisions apply only

when a school is in session or children are present. “The language of [Code section

39-17-432] unambiguously imposes enhanced criminal penalties for drug offenses occurring

inside the school zone regardless of the timing of the drug offense.” State v. Smith, 48

S.W.3d 159, 169 (Tenn. Crim. App. 2000).

Accordingly, the judgments of the trial court are affirmed.

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JAMES CURWOOD WITT, JR., JUDGE

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