The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
August 20, 2013 Session
STATE OF TENNESSEE v. STERLING JEROME DAVIS
Appeal from the Criminal Court for Monroe County
No. 10-332 Amy A. Reedy, Judge
No. E2012-01398-CCA-R3-CD - Filed November 14, 2013
The defendant, Sterling Jerome Davis, was convicted by a Monroe County jury of possession
of 300 grams or more of cocaine with the intent to sell, a Class A felony; possession of more
than one-half ounce but less than ten pounds of marijuana with intent to sell, a Class E
felony; and possession of drug paraphernalia, a Class A misdemeanor. He was sentenced by
the trial court as a Range II offender to concurrent terms of forty years at 35% for possession
of cocaine with the intent to sell, four years at 35% for possession of marijuana with the
intent to sell, and eleven months, twenty-nine days for possession of drug paraphernalia. The
defendant raises the following issues on appeal: (1) whether the trial court erred in denying
his motion to suppress evidence; (2) whether the trial court improperly limited defense
counsel’s questioning of venire members; (3) whether the evidence is sufficient to sustain
the convictions; (4) whether the trial court erred by admitting into evidence the defendant’s
petition for a hearing on a forfeiture warrant; (5) whether the prosecutor engaged in improper
closing argument; and (6) whether the trial court imposed an excessive sentence. Following
our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.
C. Richard Hughes, Jr., District Public Defender; and Jeanne L. Wiggins, Assistant Public
Defender, for the appellant, Sterling Jerome Davis.
Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Robert Steven Bebb, District Attorney General; and James Harvey Stutts,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On September 5, 2010, detectives of the Monroe County Sheriff’s Department
executed a search warrant at the Madisonville residence of the defendant. Among the items
uncovered in the search were 305.8 grams of cocaine, 428.3 grams of marijuana, $154,844
in cash, plastic baggies, a vacuum pack “FoodSaver” machine, four sets of scales, and a small
spoon. The defendant was subsequently indicted for possession of 300 grams or more of
cocaine with the intent to sell, possession of more than one-half ounce but less than ten
pounds of marijuana with the intent to sell, and possession of drug paraphernalia.
Suppression Hearing
Prior to trial, the defendant filed a motion to suppress the results of the search,
arguing, among other things, that the search warrant was unsupported by probable cause. At
the suppression hearing, Investigator Lewis Jones of the Tenth Judicial District Public
Defender’s Office identified photographs he had recently taken of the defendant’s brick
residence on Third Street, the adjacent mobile home, and the common driveway, which were
admitted as exhibits to the hearing.
Kenneth Cable, an employee of the waste management company that collected trash
from the area’s homes, testified that the trash receptacles for both homes were regularly
placed together for pickup in the corner of the mobile home’s yard. He said the trash
receptacles were identical and that, other than dumping the trash out, he had no way of
knowing which trash belonged to which residence.
Detective Conway Mason of the Monroe County Sheriff’s Department identified
copies of the search warrant and the affidavit he had prepared in support of the search
warrant, which were admitted as an exhibit to the hearing. Among other things, the affidavit
contained the following pertinent information:
3. For the past several years your affiant has been receiving information
of illegal narcotics sales at [the defendant’s residence]. The
information contained herein was derived from my own investigation,
conversations with other law enforcement officials, witness statements
from neighbors or confidential sources of information unless otherwise
indicated.
4. On July 21st 2010 your affiant conducted a trash pull from the
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discarded trash of [the defendant’s residence]. Upon inspecting the
contents of the discarded trash I discovered a marijuana stem and
several plastic baggies. On or around July 29th, 2010, I was contacted
by a confidential source of information herein referred to as SOI 1.
SOI 1 stated that he/she was present, on this date, at [the defendant’s]
residence. SOI 1 stated that once inside the residence he/she observed
a marijuana roach/blunt on a desk inside the residence. Within three
days of September 5th, 2010 your affiant was contacted again by SOI
1 who stated that he/she was present with [sic] these three days at the
residence [of the defendant] and observed an amount of marijuana
inside the residence.
5. SOI 1 is a proven credible and reliable source whose information has
led to the discovery of marijuana in the past. SOI 1 has assisted your
affiant in investigations in the past which ha[ve] le[d] to the arrest and
convictions of individuals for possessing or selling illegal drugs. SOI
1 has shown knowledge of identifying marijuana through interviews
and conversations with your affiant.
Detective Mason testified that he pulled the trash from the side of the driveway on
which the mobile home was located because Cable told him that the residents of both homes
placed their trash together in that area. He said there was nothing in the trash to indicate
exactly which residence it had come from. He believed, however, that it was the defendant’s
trash because he had never received any information about the resident of the mobile home
selling marijuana. He acknowledged that there was nothing in the affidavit to indicate that
the defendant was present at the time the confidential informant saw the marijuana. He
further acknowledged that the affidavit stated only that the informant saw “an amount of
marijuana” without specifying how much. On cross-examination, he testified that the
statements he made in his affidavit were true.
On October 7, 2011, the trial court entered an order overruling the motion to suppress.
The court found that there were no false statements in the affidavit made either intentionally
to deceive or with a reckless disregard for their truth and that the proof showed that the
detective conducted a trash pull of trash that he believed came from the defendant’s
residence. The court further found that the information in the affidavit was not stale and that
it was sufficient to establish probable cause for the search.
Trial
Detective Mason testified that he lived in the vicinity and was familiar with the
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defendant’s Third Street residence because he drove past it almost every day on his way to
work. He said that the defendant and another individual were in the living room when he and
his fellow officers arrived on September 5, 2010, to execute the search warrant. He stated
that they first secured the defendant and his companion, cleared the residence, and then
searched the home in a systematic fashion. Among other items, they uncovered and seized
a large amount of marijuana and cocaine, some of which was packaged in individual plastic
sandwich bags; $154,844 in cash, which was in $100 bills bundled together in $5000
increments; plastic baggies; a FoodSaver machine; and four sets of scales. Detective Mason
explained that the presence of scales, plastic baggies, and the FoodSaver machine, which was
used to provide air-tight packaging to preserve freshness, indicated to him that the drugs
were being packaged for resale. Most of the seized items were found in a back bedroom in
which there was a photograph of the defendant on the wall, a photograph of the car that
Detective Mason had regularly seen the defendant driving, a box of checks in the defendant’s
name, and a Sentry safe containing a wallet with credit cards in the defendant’s name, the
defendant’s social security card, two of the defendant’s expired driver’s licenses, and various
other papers and photographs. Detective Mason testified that he found the car he had seen
the defendant driving, a 1997 Nissan, outside on the property and seized it in accordance with
the drug forfeiture process. There was also a locked storage building on the property, which
he searched after finding the key to the lock on the defendant’s key ring. Detective Mason
described the forfeiture process and identified the defendant’s signed petition for a hearing
on the seizure of property in which the defendant listed himself as the owner of the $154,844
in cash. The petition was then admitted as a trial exhibit.
On cross-examination, Detective Mason acknowledged that he was the one who
identified the residence as the defendant’s, that the address on the defendant’s checks was
different from the address of the Third Street residence they searched, and that his research
revealed that another man was the owner of the Third Street residence. He testified that the
room in which they found most of the seized items was “pretty messy” with “quite a bit of
stuff” in it, including boxes and clothing stacked against the wall. He conceded that they did
not attempt to take any fingerprints from any of the surfaces or items in the home. He
testified that he was unaware that the other individual in the home with the defendant at the
time he executed his search, Stephen Yates, was on probation at the time. He was, however,
aware of Mr. Yates’s general background. He said that none of the various pieces of
identification in the defendant’s name was dated later than 2006. At the request of defense
counsel, he identified the defendant’s current driver’s license, which was admitted as an
exhibit and which listed the defendant’s address as the same as that on the defendant’s
checks. He said he believed that was the address of the defendant’s mother.
Linda Wilder, a forensic technician with the Tennessee Bureau of Investigation
(“TBI”) testified that she received the substances submitted by Detective Mason to the TBI
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laboratory for analysis and placed them in a secure vault to await assignment to a forensic
scientist.
TBI Agent Carl Smith, the forensic scientist who analyzed the substances submitted
by Detective Mason, identified his Official Forensic Chemistry Report, which was admitted
as an exhibit and showed that he determined that the three samples of white powder
submitted consisted of cocaine weighing 273.2 grams, 20.1 grams, and 12.5 grams,
respectively. He testified that he determined that the largest sample of green plant material
that was submitted for analysis was marijuana with a weight of 428.3 grams. He stated that
the gross weight of the other samples of plant material was 3.2 pounds. He then explained
that he did not analyze those additional samples because the total weight of all the plant
material was less than 10 pounds and therefore would not have moved the offense to the next
felony level.
Vivian Smith, the defendant’s sister, testified in the defendant’s behalf that she filed
a claim for the Nissan automobile that had been seized in the case. She said she paid two
separate fees of $350 to cover the claim for the automobile and the claim for the cash, but
she had no interest in the cash and simply paid on the defendant’s behalf because he was in
jail at the time.
Thomas Latham, the defendant’s father, testified that he arrived at the Third Street
residence during the time that the police were executing their search. He said that he stayed
until the police left the premises and that he saw them bring a handcuffed Stephen Yates
outside and place him into a van as they were leaving. On cross-examination, he testified
that he was at the home for approximately three hours and never saw the defendant.
The defendant elected not to testify and rested his case without presenting any further
proof. Following deliberations, the jury convicted him of the indicted offenses.
Sentencing Hearing
At the sentencing hearing, the State introduced as exhibits the defendant’s presentence
report and certified copies of the prior convictions on which the State relied to establish the
defendant’s classification as a Range II offender. Danny Isbill, the Board of Probation and
Parole officer who prepared the presentence report, described the investigation he conducted
of the defendant’s background and identified a certified copy of the defendant’s federal
conviction, a summons for a probation violation, and a copy of the warrant for violation of
the federal sentence, which were admitted as a collective exhibit.
On cross-examination, he testified that his investigation revealed that the defendant
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had graduated from Sweetwater High School and for a period of time attended the University
of Tennessee at Chattanooga on a scholarship. The defendant’s reported employment history
included self-employment as a personal trainer, at MB Sewing as an inspector, and at Havco
Wood Products. He was, however, unable to confirm the information. The defendant had
five children, all of whom he supported. The defendant’s revocation warrant in his federal
case charged him with having twice tested positive for marijuana, having attempted to bribe
the probation officer to not report the positive drug screen in one of those instances, and
having been arrested and charged with possession of cocaine for resale. Isbill acknowledged
that the cocaine charge had been dismissed, leaving the defendant with only technical
violations.
Pastor James Wilks of the Goodfriend Baptist Church in Madisonville testified on the
defendant’s behalf that he had known the defendant’s entire family for the past twenty-one
years and that the defendant had been an occasional attendee at the church during that time.
In the past year, however, he had witnessed the defendant “grow through the power of God.”
He said the defendant now regularly attended church with his two young children and was
an active member of the congregation, assisting with vacation bible school for the children
and bringing new members into the church. He, therefore, requested that the court exhibit
mercy in sentencing in order to allow the defendant to remain in the community to serve as
a positive influence and example to his children.
Minister Sandra Fay Wilks of the Goodfriend Baptist Church testified that the
defendant was a devoted parishioner of the church and that he, his sister, and his fiancée had
initiated the church’s vacation bible school program. She, like Pastor Wilks, expressed her
belief in the defendant’s reformation of character and requested that the court exhibit mercy
in sentencing.
Jeffrey Richards testified that he had met the defendant in the gym approximately six
and a half years earlier when the defendant, a “good hearted” and “courteous” person, had
taken the time to show him how to use the weight equipment. He said he had observed the
defendant carefully over the years, witnessed his caring and helpful nature, and believed that
justice would best be served by allowing the defendant to remain in the community to teach
young people not to follow the same paths he had.
Vivian Darlene Smith, the defendant’s older sister, identified petitions signed by
members of the community requesting leniency in the defendant’s sentencing, which were
admitted as a collective exhibit to the hearing. Smith testified that the defendant’s two oldest
children were semi-self-sufficient but that his three youngest children needed the defendant,
which was why she was pleading with the court to exhibit mercy in sentencing. She further
testified that she had recently had conversations with the defendant about God and that she
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believed that he was experiencing a genuine reformation and was sincere in his desire to
change his life. Upon questioning by the court, Smith testified that the defendant had never
been married to any of the four mothers of his children.
Thomas Latham, the defendant’s father, also requested leniency in sentencing,
testifying that he had witnessed a change in the defendant in the past year and believed that
he was “beginning now to accept the responsibility” for his actions.
At the conclusion of the hearing, the trial court sentenced the defendant as a Range
II offender to concurrent terms of forty years at 35% for the possession of cocaine with the
intent to sell conviction, four years at 35% for the possession of marijuana with the intent to
sell conviction, and eleven months, twenty-nine days for the possession of drug paraphernalia
conviction.
ANALYSIS
I. Denial of Motion to Suppress Evidence
The defendant contends that the trial court erred by denying his motion to suppress
evidence, arguing that Detective Mason’s affidavit contained a false statement “intentionally
and/or recklessly made without regard to its truthfulness.” The defendant further argues that
the other information in the affidavit was insufficient, standing alone, to establish probable
cause for the search. In support, he cites, among other things, the fact that there is no
mention in the affidavit of the defendant having been present in the home at the time the
confidential informant saw the marijuana, the amount of marijuana witnessed by the
informant, or that any type of drug transaction took place during the informant’s visit. The
State responds by arguing that the trial court properly denied the defendant’s motion to
suppress after finding that Detective Mason’s affidavit contained no intentionally or
recklessly made false statements and that the information contained in the affidavit was not
stale and established a nexus between the drug sales and the residence. We agree with the
State.
When this court reviews a trial court’s ruling on a motion to suppress evidence,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the
suppression hearing is afforded the “strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.” State v. Keith,
978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression hearing are
upheld unless the evidence preponderates against those findings. See id. However, the
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application of the law to the facts found by the trial court is a question of law and is reviewed
de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989 S.W.2d
295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
The defendant first argues that the trial court should have granted his motion to
suppress because the affidavit contained either an intentionally or recklessly made false
statement, i.e. that Detective Mason found a marijuana stem and baggies in the defendant’s
trash. A false statement in an affidavit may be sufficient to invalidate a search warrant, as
our supreme court explained in State v. Little, 560 S.W.2d 403 (Tenn. 1978):
[T]here are two circumstances that authorize the impeachment of an affidavit
sufficient on its face, (1) a false statement made with intent to deceive the
Court, whether material or immaterial to the issue of probable cause, and (2)
a false statement, essential to the establishment of probable cause, recklessly
made. Recklessness may be established by showing that a statement was false
when made and that affiant did not have reasonable grounds for believing it,
at that time.
Id. at 407. “In order to be ‘essential to the establishment of probable cause,’ the false
statement must be the only basis for probable cause or if not, the other bases, standing alone,
must not be sufficient to establish probable cause.” State v. Norris, 47 S.W.3d 457, 469 n.4
(Tenn. Crim. App. 2000) (citing State v. Tidmore, 604 S.W.2d 879, 882 (Tenn. Crim. App.
1980)).
In overruling the motion to suppress, the trial court found the witnesses to be credible
and that no false statements were made intentionally to deceive the court. The court further
found that the defendant had not proved by a preponderance of the evidence that “there were
any reckless false statements within the affidavit . . . essential to establish probable cause.”
The record supports the trial court’s findings. At the suppression hearing, Detective
Mason testified that he learned from the trash collector that the trash for both homes was
placed together on the mobile home side of the shared driveway and that it was from that
location that he pulled the trash in which he found the marijuana stem and plastic baggies.
He also explained that he believed the items came from the defendant’s trash because he had
never received any information about the resident of the mobile home selling marijuana. We
agree with the State that his belief was reasonable given the additional information he had
from other sources, including the confidential informant, about the defendant’s drug activity.
We conclude, therefore, that the trial court did not err in finding that the defendant failed to
show that the affidavit contained either an intentional or reckless false statement.
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We further conclude that the trial court did not err in finding that the information
contained in the affidavit was not stale and that it established a nexus between the criminal
activity and the defendant’s residence. Under both the Tennessee and United States
Constitutions, no search warrant may be issued except upon probable cause, which “requires
reasonable grounds for suspicion, supported by circumstances indicative of an illegal act.”
State v. Smotherman, 201 S.W.3d 657, 662 (Tenn. 2006). Tennessee requires a written and
sworn affidavit, “containing allegations from which the magistrate can determine whether
probable cause exists,” as “an indispensable prerequisite to the issuance of a search warrant.”
State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998). The affidavit must contain more than
mere conclusory allegations on the part of the affiant. Id. The standard to be employed in
reviewing the issuance of a search warrant is “whether the issuing magistrate had ‘a
substantial basis for concluding that a search would uncover evidence of wrongdoing.’”
Smotherman, 201 S.W.3d at 662 (quoting State v. Ballard, 836 S.W.2d 560, 562 (Tenn.
1992)).
In State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989), our supreme court adopted
the two-pronged Aguilar-Spinelli test for determining whether an affidavit that relies upon
allegations supplied by a criminal informant is sufficient to establish probable cause. Under
the first, “basis of knowledge” prong of the test, “facts must be revealed which permit the
magistrate to determine whether the informant had a basis for his information that a certain
person had been, was or would be involved in criminal conduct or that evidence of crime
would be found at a certain place.” State v. Moon, 841 S.W.2d 336, 338 (Tenn. Crim. App.
1992). Under the second, or “veracity” prong of the test, “facts must be revealed which
permit the magistrate to determine either the inherent credibility of the informant or the
reliability of his information on the particular occasion.” Id. (citation omitted). Although
independent police corroboration may compensate for deficiencies in either prong, each
prong of the test must be satisfied to establish probable cause. Smotherman, 201 S.W.3d at
662 (citing State v. Williams, 193 S.W.3d 502, 507 (Tenn. 2006); Jacumin, 778 S.W.2d at
436.
In denying the motion to suppress the results of the search, the trial court found that
the confidential informant’s “knowledge and veracity [were] established within the
affidavit” and that the information the informant provided established a nexus between the
crime and the place to be searched. The record supports these findings. Detective Mason’s
affidavit provided information about his having learned of drug activity at the defendant’s
residence through his own investigation and his communication with fellow law enforcement
officers, neighborhood residents, and confidential sources of information. It also provides
information about his past use of the confidential informant and the informant’s having
provided him with reliable information that led to the discovery of illegal drugs and the
arrests and convictions of drug traffickers. Finally, it contains specific information about the
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informant’s two recent visits to the defendant’s home and the drugs that he or she witnessed
while present in the home. We do not find the fact that the affidavit fails to mention that the
defendant was present at the time the informant saw the drugs, or that a drug transaction took
place during the informant’s visit, fatal to the affidavit’s establishment of probable cause.
We conclude, therefore, that the affidavit contained sufficient information to establish
probable cause for the search. Accordingly, we affirm the trial court’s denial of the motion
to suppress the results of the search.
II. Voir Dire
The defendant contends that the trial court violated his rights to an impartial jury and
due process of law by limiting defense counsel’s conversation with the venire members with
respect to the use of confidential informants in drug cases. The State disagrees, arguing that
the trial court acted within its discretion and that the defendant has not shown any prejudice
to his case from the trial court’s actions. We, again, agree with the State.
It is well-settled that the trial court is vested with wide discretion in controlling the
examination of potential jurors and that its actions in that regard will not be disturbed absent
a showing of an abuse of discretion. See State v. Reid, 164 S.W.3d 286 (Tenn. 2005); State
v. Jefferson, 529 S.W.2d 674 (Tenn. 1975); State v. Cox, 644 S.W.2d 692 (Tenn. Crim. App.
1982). “The ultimate goal of voir dire is to [e]nsure that jurors are competent, unbiased, and
impartial.” State v. Cazes, 875 S.W.2d 253, 262 (Tenn. 1994).
The action of which the defendant complains took place after defense counsel was
questioning venire members about their knowledge and opinion of the government’s use of
confidential informants. A venire member interrupted with a question about entrapment, and
the following exchange took place:
1ST MALE JUROR: I have a question, please.
[DEFENSE COUNSEL]: I’m sorry.
1ST MALE JUROR: Back to the issue of confidential informant, could you
please describe the idea of entrapment versus –
[PROSECUTOR]: May we approach, your Honor?
THE COURT: Yes.
(COUNSEL APPROACHED THE BENCH AND THE
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FOLLOWING TOOK PLACE OUT OF THE HEARING OF
PROSPECTIVE JURORS:)
[PROSECUTOR]: Your Honor, at this point I want to object to
any form of inquiries on this line. This is not a confidential
informant case, it’s a search warrant. The issue of the informant
was resolved when your Honor ruled on the defense motion to
suppress. The warrant is good and that was our authority to go
in. It’s not a sale or a deliver, it’s possession.
[DEFENSE COUNSEL]: I can still ask him about his
investigation and –
[PROSECUTOR]: Not as to the background of the search
warrant. That’s been decided.
[DEFENSE COUNSEL]: I can still ask him about his
investigation –
[PROSECUTOR]: Well, just make sure you want to know the
answers, but I object to any further inquiry about entrapment and
all that. This is not a sale or delivery. They went in his house,
the dope was in his house, the money was in his house. There
–
[DEFENSE COUNSEL]: He brought it up –
[PROSECUTOR]: There is no CI involved.
THE COURT: Brought what up?
[DEFENSE COUNSEL]: (Indiscernible) You might explain to
him –
THE COURT: I’m not going to explain facts in the case[,] and
quite frankly[,] all I know is what I’ve heard in the motion to
suppress and the other motions that we had the other day. This
is not a case about a buy and so just be careful how you move
with this.
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(THIS CONCLUDED THE CONFERENCE AT THE BENCH
AND THE FOLLOWING TOOK PLACE IN THE HEARING
OF THE PROSPECTIVE JURORS:)
[DEFENSE COUNSEL]: Is there anything about your opinions . . . that you
feel like regarding of the conversation we have that you feel like you could not
listen to the proof in this case and be fair?
1ST MALE JUROR: I don’t quite know how to address that. It would very
[sic] depend upon the idea of entrapment, enticement, aid or –
THE COURT: Let me help out at this point. If entrapment is relevant to this
case, if it’s raised by the facts and the proof, anything like that[,] I will instruct
you about at the conclusion of the case. I will give you all the legal
instructions so that, and as I said statements and remarks of counsel are
intended to help you[,] but they may not be supported by the facts and the law
in this case. So if there is an issue of entrapment you will get the full
instruction of the law so that you can consider that.
Thereafter, voir dire continued with no further objections raised and a jury was
ultimately impaneled and sworn. There is nothing in the record to show which venire
members were selected for the jury or whether either counsel used a peremptory challenge
to strike the juror who asked about entrapment.
We find no abuse of discretion in the trial court’s handling of this matter. The trial
court responded appropriately to the venire member’s questions by instructing the venire that
the court would issue jury instructions on entrapment should it prove relevant under the facts
in the case. Furthermore, the defendant has not shown that the venire member who raised
the question was prejudiced against him, or that he was actually impaneled as a juror. We
conclude, therefore, that the defendant is not entitled to relief on the basis of this issue.
III. Sufficiency of the Evidence
The defendant next challenges the sufficiency of the evidence in support of his
convictions, arguing that the State failed to present sufficient proof to show his possession
of the drugs or his control over the home. In considering this issue, we apply the rule that
where sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court 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); see also Tenn.
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R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall
be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State
v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All questions involving the
credibility of witnesses, the weight and value to be given the evidence, and all factual issues
are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of
the witnesses for the State and resolves all conflicts in favor of the theory of the State.” State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme court stated the rationale for this
rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that
on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
To sustain the defendant’s conviction for possession of 300 grams or more of cocaine
with the intent to sell, the State had to prove beyond a reasonable doubt that the defendant
knowingly possessed 300 grams or more of cocaine with the intent to sell it. Tenn. Code
Ann. § 39-17-417(a)(4), (j)(5) (2010). To sustain the conviction for possession of marijuana
with the intent to sell, the State had to prove beyond a reasonable doubt that the defendant
knowingly possessed not less than one-half ounce nor more than ten pounds of marijuana
with the intent to sell. Id. § 39-17-417(a)(4), (g)(1). Finally, to sustain the conviction for
possession of drug paraphernalia, the State had to prove beyond a reasonable doubt that the
defendant possessed with intent to use drug paraphernalia “to plant, propagate, . . . test,
analyze, pack, repack, store, contain, . . . or otherwise introduce into the human body a
controlled substance[.]” Id. § 39-17-425(a)(1).
Possession of drugs may be constructive as well as actual. State v. Shaw, 37 S.W.3d
900, 903 (Tenn. 2001); State v. Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996);
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). “Constructive possession
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requires that a person knowingly have the power and the intention at a given time to exercise
dominion and control over an object, either directly or through others. In essence,
constructive possession is the ability to reduce an object to actual possession.” State v.
Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). Tennessee Code Annotated
section 39-17-419 provides 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.”
In support of his argument that the State failed to prove his possession of the drugs
and drug paraphernalia, the defendant cites a number of facts, including that none of the
pieces of identification in his name were recent, that the address on his checks was different
from the address of the home searched, that he did not own the home, that the back bedroom
containing the cash and his identification had a cluttered, “storage room” appearance, and
that no fingerprints were obtained linking him to the contraband items in the home.
The evidence, however, when viewed in the light most favorable to the State, is more
than sufficient to sustain the defendant’s convictions. When the officers arrived to execute
the warrant, the defendant was sitting inside the living room with a companion. A
photograph of the automobile the defendant regularly drove was in the back bedroom, and
the automobile itself was parked outside the residence. The bedroom also contained the
defendant’s checks; over $150,000 in cash, of which the defendant claimed ownership by
signing the petition for a hearing on the forfeiture of property; and a safe with the
defendant’s social security card, credit and bank cards, two old driver’s licenses, and various
other papers and records in the defendant’s name. From all this evidence, a rational jury
could have reasonably found that the defendant possessed the marijuana, cocaine, and drug
paraphernalia found in the home. A rational jury could have further reasonably found, based
on the large amounts of cocaine, marijuana, and cash and the presence of plastic baggies,
scales, and FoodSaver machine, that the defendant possessed the drugs with the intent to sell
them. Accordingly, we conclude that the evidence is sufficient to sustain the defendant’s
convictions.
IV. Admission of Defendant’s Petition For a Hearing on Forfeiture Warrant
The defendant contends that the trial court erred by admitting into evidence his
petition for a hearing on the forfeiture of the cash, arguing that it was inadmissable hearsay.
The State disagrees, arguing that the trial court properly admitted the evidence as the
admission of a party opponent. We agree with the State.
Hearsay is a “statement, other than one made by the declarant while testifying at the
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trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid.
801(c). Generally, hearsay statements are inadmissible unless they fall under one of the
recognized exceptions to the hearsay rule. Tenn. R. Evid. 802. One such exception to the
rule against hearsay is the one under which the trial court ruled the evidence admissible,
“Admission by Party-Opponent,” which is defined in pertinent part as “[a] statement offered
against a party that is (A) the party’s own statement in either an individual or a representative
capacity[.]” Tenn. R. Evid. 803(1.2).
On appeal, the defendant appears to concede that he signed the petition and that the
document therefore satisfied the party admission exception to the rule against hearsay.
Instead, he asserts that the evidence “would necessarily need to survive both a business
record exception as well as an admission by a party opponent” to be admissible at trial. In
support, he points out that neither he nor Detective Mason prepared the document, “as it was
a form purporting to be for use by the Department of Safety.” The defendant appears to
argue that the trial court erred by accepting the State’s argument that the evidence was
admissible as the admission of a party opponent without conducting any analysis of whether
it also fell within the business records exception.
The defendant is not entitled to relief on the basis of this issue. The relevant
information contained in the document, that the defendant claimed an ownership interest in
the seized cash, was supplied by the defendant himself rather than by a person with a duty
to record such information during the course of regularly conducted activity. See Tenn. R.
Evid. 803(6). As such, it was unnecessary for the evidence to satisfy the business records
exception in order to be admissible at trial. We conclude, therefore, that the trial court
properly admitted the evidence.
V. Closing Argument
The defendant next contends that the prosecutor engaged in improper closing
argument by commenting on the fact that defense counsel did not question defense witnesses
as to where the defendant lived, which “unconstitutionally shifted the burden of proof” to the
defendant. The State argues that the comments were not improper and do not entitle the
defendant to a new trial. We agree.
During closing argument, defense counsel argued that the State had failed to prove
that the defendant lived at the residence or was in either actual or constructive possession of
the drugs and drug paraphernalia. As part of her argument, defense counsel made the
comment that Detective Mason never mentioned having investigated who lived at the address
listed on the defendant’s checks and current driver’s licenses, despite the fact that it would
have been easy for him to do so. During rebuttal, the prosecutor responded with the
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following:
What do they show you that says he lives there? Well, do you remember the
two witnesses the defense called? His sister. Did they ask her where he lived?
No. His father? If that’s so important, if that’s a contested issue why would
you not ask daddy, “Where does your son live?” And they didn’t ask –
At that point, defense counsel objected, arguing that the State’s comments were an
attempt “to put the burden on the defendant regarding the issue of his residency and
ultimately his possession of the seized items under the State’s theory.” The trial court
overruled the objection without further comment, and the prosecutor moved on to other
topics.
Tennessee courts “have traditionally provided counsel with a wide latitude of
discretion in the content of their final argument” and trial judges with “wide discretion in
control of the argument.” State v. Zirkle, 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995).
A party’s closing argument “must be temperate, predicated on evidence introduced during
the trial, relevant to the issues being tried, and not otherwise improper under the facts or
law.” State v. Middlebrooks, 995 S.W.2d 550, 557 (Tenn. 1999). The five generally
recognized areas of prosecutorial misconduct in closing argument occur when the prosecutor
intentionally misstates the evidence or misleads the jury on the inferences it may draw from
the evidence; expresses his or her personal opinion on the evidence or the defendant’s guilt;
uses arguments calculated to inflame the passions or prejudices of the jury; diverts the jury
from its duty to decide the case on the evidence by injecting issues broader than the guilt or
innocence of the accused under the controlling law or by making predictions on the
consequences of the jury’s verdict; and intentionally refers to or argues facts outside the
record, other than those which are matters of common public knowledge. State v. Goltz, 111
S.W.3d 1, 6 (Tenn. Crim. App. 2003).
For a defendant to be entitled to a new trial on the basis of allegedly improper remarks
during the closing argument, the comments must be shown to have prejudiced the case by
affecting the jury’s verdict. Middlebrooks, 995 S.W.2d at 559. In determining whether this
occurred, we consider the following factors: (1) the conduct viewed in light of the
circumstances and facts in the case; (2) any curative measures taken by the trial court and the
prosecution; (3) the prosecutor’s intent in making the improper statements; (4) the cumulative
effect of the prosecutor’s statements and other errors in the record; and (5) the relative
strength and weakness of the case. Id. at 560.
We agree with the State that the prosecutor’s comments, viewed in context, were not
improper. Accordingly, we conclude that the defendant is not entitled to relief on the basis
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of this issue.
VI. Sentencing
As his last issue, the defendant contends that the trial court erred by imposing the
maximum sentences for the offenses without adequately considering his potential for
rehabilitation or factors in mitigation.
Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:
(1) The evidence, if any, received at the trial and the sentencing hearing;
(2) The presentence report;
(3) The principles of sentencing and arguments as to sentencing alternatives;
(4) The nature and characteristics of the criminal conduct involved;
(5) Evidence and information offered by the parties on the mitigating and
enhancement factors set out in §§ 40-35-113 and 40-35-114;
(6) Any statistical information provided by the administrative office of the
courts as to sentencing practices for similar offenses in Tennessee; and
(7) Any statement the defendant wishes to make in the defendant's own behalf
about sentencing.
Tenn. Code Ann. § 40-35-210(b) (2010).
The trial court is granted broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating factors,
and “sentences should be upheld so long as the statutory purposes and principles, along with
any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380
S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing
determinations under an abuse of discretion standard, “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 707. In State v. Caudle, our supreme
court clarified that the “abuse of discretion standard, accompanied by a presumption of
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reasonableness, applies to within-range sentences that reflect a decision based upon the
purposes and principles of sentencing, including the questions related to probation or any
other alternative sentence.” 388 S.W.3d 273, 278-79 (Tenn. 2012).
At the conclusion of the sentencing hearing, the trial court first noted that the
defendant was not eligible for probation for his Class A felony conviction. The court then
found two enhancement factors applicable: the defendant’s previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the appropriate
range and the defendant’s failure before trial or sentencing to comply with the conditions of
a sentence involving release into the community. See Tenn. Code Ann. § 40-35-114(1), (8).
The trial court found no applicable mitigating factors, although it did note for the record the
witnesses who appeared on the defendant’s behalf. The court, therefore, sentenced the
defendant to concurrent terms of forty years for the Class A felony cocaine conviction, four
years for the Class E felony marijuana conviction, and eleven months, twenty-nine days for
the Class A misdemeanor drug paraphernalia conviction.
The record reflects that the trial court imposed the maximum sentences for the
defendant’s offenses after proper consideration of the purposes and principles of our
sentencing act and consideration of any applicable enhancement or mitigating factors. See
Bise, 380 S.W.3d at 706. Accordingly, we affirm the sentences imposed by the trial court.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the trial
court.
_________________________________
ALAN E. GLENN, JUDGE
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