State of Tennessee v. Elmer Herbert Simpson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 23, 2014

STATE OF TENNESSEE v. ELMER HERBERT SIMPSON

Appeal from the Criminal Court for Hawkins County

No. 12CR3 John F. Dugger, Judge

No. E2013-02336-CCA-R3-CD - Filed August 5, 2014

The defendant, Elmer Herbert Simpson, appeals his Hawkins County Criminal Court jury

convictions of possession of a Schedule III drug with intent to deliver, see T.C.A. § 39-17-

417(a)(4), (d)(1), and maintaining a dwelling where controlled substances are kept or sold,

see id. § 53-11-401(a)(5), both Class D felonies. On appeal, the defendant challenges the

sufficiency of the convicting evidence and the propriety of his effective three-year sentence.

We affirm the judgments of the trial court.

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

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

W EDEMEYER, J., and J OE H. W ALKER, III, S P. J., joined.

John S. Anderson, Rogersville, Tennessee, for the appellant, Elmer Herbert Simpson.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney

General; C. Berkeley Bell, Jr., District Attorney General; and Alex Pearson, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

At trial, Hawkins County Sheriff’s Department Detective Jeff Hilton testified

that on March 20, 2011, he received a call to assist Lieutenant Chad Gillenwater in an

investigation underway on Horton Lane1 in Church Hill. Detective Hilton found Lieutenant

Gillenwater talking with two individuals who were inside a parked vehicle. As a result of

that conversation, the officers went to the front door of the trailer home nearby and knocked.

The defendant came to the door, and the officers explained that they had received

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The street was later referred to as “Hord Lane” in the transcript of the evidence.

information that “Loritabs” were being sold from the residence. Detective Hilton testified

that the defendant denied the allegation and that the defendant consented to the officers’

entering and searching the trailer. Detective Hilton found “Loritabs hidden in the freezer.”

The tablets were in bottles that bore no prescription labels.

The officers arrested the defendant and transported him to the jail. After being

advised of his rights and signing a written waiver, the defendant provided a statement in

which he admitted that Roy Junior Gibson called the defendant to inquire about purchasing

Loritabs, that the defendant told Mr. Gibson that he had some Loritabs he would sell to Mr.

Gibson, and that Mr. Gibson subsequently came to the defendant’s home. In his statement,

the defendant said that he gave Mr. Gibson four Loritabs and that Mr. Gibson started to go

to his vehicle to get the purchase money from a passenger in Mr. Gibson’s vehicle, but when

Mr. Gibson opened the defendant’s front door, he saw the blue lights of the sheriff’s

vehicles. Mr. Gibson then put the pills the defendant had given him in the defendant’s

freezer. The defendant said that five minutes later an officer knocked on his door. He

admitted that he gave the officer permission to search his house. He further admitted that he

had stolen the Loritabs from his sister. The defendant said that when he took the pills from

his sister’s house, he had no intent to sell them; rather, he said, Mr. Gibson talked him into

selling some of them.

The tablets obtained from the defendant’s freezer were sent to the Tennessee

Bureau of Investigation (“TBI”) for analysis. The defendant stipulated the admissibility of

the analysis report which showed that the 15 tablets submitted contained dihydrocodeinone,

a Schedule III controlled substance.

Elizabeth Goan testified that, on March 20, 2011, she and her husband-to-be

went with Roy Gibson to the defendant’s trailer in Church Hill to “pick up some pills.”

When they arrived, she and her husband-to-be waited in the vehicle while Mr. Gibson went

into the trailer. While they waited, Lieutenant Gillenwater arrived, and Ms. Goan told him

what was occurring at the time.

Hawkins County Sheriff’s Department Lieutenant Chad Gillenwater testified

that on March 20, 2011, he saw a “vehicle parked in the middle of the roadway on Hord

(phonetic) Lane trailer park . . . with the headlights on.” Lieutenant Gillenwater drove to the

vehicle and found passengers but no driver inside. As a result of conversation with the

passengers, he and Detective Hilton approached the defendant’s residence, knocked, and

were admitted into the residence by the defendant, who consented to the officers’ searching

the residence. Lieutenant Gillenwater saw Detective Hilton find and retrieve pill bottles from

the defendant’s freezer. Lieutenant Gillenwater testified that, after he and Detective Hilton

took the defendant to the sheriff’s office and obtained a waiver of rights from the defendant,

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the defendant gave an oral statement which the lieutenant transcribed and the defendant

signed.

On cross-examination, Lieutenant Gillenwater said he was unaware that the

defendant had any difficulty reading and writing. The interview was not tape recorded.

TBI Special Agent Forensic Scientist Michael Bleakley testified that the 15

tablets he received for analysis from the Hawkins County Sheriff’s Department in the

defendant’s case contained “Dihydrocodeinone, or Hydrocodone . . . Loritab is a brand

name.”

The State rested.

The defendant called as a witness on his behalf Loretta Brown who testified

that she is the defendant’s sister and that the Loritabs in question were originally hers before

the defendant “come [sic] in and stole them.” She said she was not at home when he stole

the pills but that he called her later and told her “when [she] got some gas [she] could come

back and get them.”

The defendant testified that he took the pills from Ms. Brown but had no intent

to sell them. He said he took the pills to medicate his pain from his 2010 ankle and back

fractures.

The defendant denied giving consent for the officers to search his residence on

March 20, 2011. He said he told them they could “walk through and look in plain sight.”

He denied making the statement that Detective Hilton read into evidence. He said he had

difficulty reading and writing and was unable to read the statement. The defendant testified

that he “did not say what’s in that statement.” He said he never had any intent to sell the

drugs and that he told “Junior Gibson [he] was not selling them to nobody, that [he] was

giving them back to [his] sister.” The defendant denied that Detective Hilton came into his

residence until after he was arrested, and he denied mentioning any money to the officers.

He stated that he had the Loritabs on his kitchen counter, and after the arrival of the deputies

was discovered, Mr. Gibson put the pills in the freezer.

The defendant admitted that Mr. Gibson had called him on March 20, 2011,

and asked whether the defendant had any pills to sell. The defendant said he told Mr. Gibson

that the only pills he had were his sister’s and that he was returning them to her. The

defendant said that he thought Mr. Gibson was bringing some people to his trailer who might

offer to purchase the trailer, which was for sale. The defendant testified that, without his

knowledge, Mr. Gibson, after seeing the officers outside, put the pills in the freezer. The

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defendant said he did not know that Mr. Gibson had them in his possession and that Mr.

Gibson must have taken them from the counter, adding, “[H]e’s stole off me before.” The

defendant acknowledged that he signed a “form” after he was advised of his rights but denied

making the statement entered into evidence, saying, “The only statement I give [sic] them I

told them I was not selling no pills to nobody. I have not priced no pills because I don’t have

education and I don’t do that garbage.” The defendant said he signed the statement because

the officer “told [him] to.”

Roy Junior Gibson testified for the State in rebuttal. He denied that he had ever

stolen from the defendant. He testified that when he went to the defendant’s residence on

March 20, 2011, they discussed the pills that the defendant had gotten from his sister and his

niece, and the defendant went to his truck to retrieve the pills. The defendant asked Mr.

Gibson whether “the people [Mr. Gibson] was with would buy them off of him.” Mr. Gibson

responded that the defendant would have to ask the people, and when Mr. Gibson started out

the door of the trailer, he saw the police and informed the defendant of their presence. Mr.

Gibson denied having or hiding the pills.

On cross-examination, Mr. Gibson testified that he went to the defendant’s

trailer because the defendant was a friend of his; Mr. Gibson intended to ask the defendant

to allow him to stay the night at the trailer. Mr. Gibson said the defendant denied this

request. Mr. Gibson said that, at first, he told the defendant that Mr. Gibson’s passengers

were interested in buying the defendant’s trailer, which was for sale at the time. He stated

that no one gave the defendant money and that the defendant did not give any pills to him.

On re-direct examination, Mr. Gibson admitted that the purpose in going to the

defendant’s residence was to get pills and that the defendant was aware of that. On re-cross

examination, Mr. Gibson testified that the defendant had told him on the telephone “that he

had some pills that he wanted to get rid of, that he needed some gas.” Mr. Gibson stated that

he did not remember whether he had told Lieutenant Gillenwater in advance that he would

be at the defendant’s trailer at a certain time.

The defendant took the stand again and denied conversing with Mr. Gibson

about selling pills. He denied any intent to sell pills. On cross-examination, he branded Mr.

Gibson “a liar. He’s been a liar all his life.”

I. Sufficiency of the Evidence

In the defendant’s first issue, he challenges the sufficiency of the evidence. He

includes in this issue a claim that the trial court erred by denying his motion for judgment of

acquittal made following the close of the State’s case-in-chief; however, he is procedurally

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barred from framing the sufficiency issue in this manner. Following the close of the State’s

proof, the defendant moved for a judgment of acquittal which the trial court denied. The

defendant then offered proof. In this situation, the defendant has waived his right to appeal

the denial of this motion. See State v. Mathis, 590 S.W.2d 449, 453 (Tenn. 1979); see also

State v. Johnson, 762 S.W.2d 110, 121 (Tenn. 1988); State v. Ball, 973 S.W.2d 288, 292

(Tenn. Crim. App. 1998). That being clarified, we now review the sufficiency of all the

evidence presented in the case.

When an accused challenges the sufficiency of the evidence, the appellate court

considers the evidence in the light most favorable to the prosecution to determine whether

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),

regardless whether the conviction is based upon direct evidence, circumstantial evidence, or

a combination of direct and circumstantial evidence, State v. Winters, 137 S.W.3d 641,

654-55 (Tenn. Crim. App. 2003). Especially inimical to the defendant’s claim is the

well-rooted axiom that the appellate court neither re-weighs the evidence nor substitutes its

inferences for those drawn by the trier of fact. Winters, 137 S.W.3d at 655. Also, the

credibility of the witnesses, the weight and value of the evidence, and all other factual issues

raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832,

835 (Tenn.1978). In reviewing the sufficiency of the evidence, the appellate court affords

the State of Tennessee 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.

“It is an offense for a defendant to knowingly . . . [p]ossess a controlled

substance with intent to . . . deliver . . . the controlled substance.” T.C.A. § 39-17-417(a)(4).

Additionally, “[i]t is unlawful for any person . . . [k]nowingly to keep or maintain any . . .

dwelling, building, . . . [,] or other structure or place that is . . . used for keeping or selling

[controlled substances].” T.C.A. § 53-11-401(a)(5).

In the present case, the defendant is much aggrieved that he was charged with

and convicted of these two offenses. He maintained in his trial testimony that he did not

intend to sell any controlled substances, and he vigorously challenged the credibility of the

State’s witnesses who contradicted this claim. As such, he put his case before the jury, but

when the evidence believed by the jury is sufficient to establish the elements of the offenses,

the appellate court may not disturb the jury’s findings. Such is the case here.

The evidence as accredited by the jury established that the defendant acquired

the pills – Schedule III controlled substances – by stealing them from his sister and that he

proposed selling some of them to Mr. Gibson and/or his associates as a means of raising gas

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money. Through this evidence, the Stated showed that the defendant knowingly (1)

possessed the contraband with intent to deliver the same and (2) maintained a dwelling that

is used for keeping or selling controlled substances. Thus, the evidence supports the

convictions in this case.

II. Sentence Length

In his next issue, the defendant challenges the concurrent three-year sentences

imposed for both of his Class D felony convictions. He claims that the trial court erroneously

enhanced the sentence in the absence of any prior felony convictions and that the court

neglected to apply mitigating factors.

In the sentencing hearing, the defendant argued that his sentence should be

mitigated because the “defendant’s criminal conduct neither caused nor threatened serious

bodily injury”; because “substantial grounds exist tending to excuse or justify the defendant’s

criminal conduct, though failing to establish a defense” based upon the defendant’s serious

prior injuries and the pain associated therewith; because the “defendant was motivated by a

desire to provide necessities for” himself, based upon the defendant’s having no gas for his

vehicle and his possession of only four dollars at the time of his arrest; and because the

“defendant, although guilty of the crime, committed the offense under such unusual

circumstances that it is unlikely that a sustained intent to violate the law motivated the

criminal conduct,” based upon the conviction offenses’ being the defendant’s only felony

convictions; and because of the defendant’s coronary illness. See T.C.A. § 40-35-113 (1),

(3), (7), (11), (13).

The court recited and reviewed the principles of and considerations for

sentencing. The court reviewed the presentence report; noted the defendant’s prior

convictions, including two for driving under the influence, two for passing worthless checks,

and one for public intoxication; and found that the defendant’s sentence should be enhanced

because he had “a previous history of criminal convictions or criminal behavior, in addition

to those necessary to establish the appropriate range.” See id. § 40-35-114(1). The court also

applied as an enhancement factor that the defendant was a leader in the commission of the

offense. See id. § 40-35-114(2). The trial court declined to apply any mitigating factors.

The court’s findings resulted in a mid-range sentence of three years on each count to be

served in incarceration.

Our standard of review of the trial court’s sentencing determinations in this

case is whether the trial court abused its discretion, but we apply a “presumption of

reasonableness to within-range sentencing decisions that reflect a proper application of the

purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn.

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2012).

Trial courts must still consider the principles of sentencing enumerated in

Tennessee Code Annotated section 40-35-210(b), see id., 380 S.W.3d at 698 n.33 (citing

T.C.A. § 40-35-210(b)), and must, as required by statute, consider “[t]he potential or lack of

potential for the rehabilitation or treatment of the defendant . . . in determining the sentence

alternative or length of a term to be imposed,” T.C.A. § 40-35-103(5). Despite the wide

discretion afforded the trial court under the current Sentencing Act, trial courts are still

required to “place on the record, either orally or in writing, what enhancement or mitigating

factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair

and consistent sentencing.” Bise at 706 n.41 (citing T.C.A. § 40-35-210(e)).

In the present case in which the defendant is a Range I offender, the range of

punishment for both convictions is not less than two years and not more than four years.

T.C.A. § 40-35-112(a)(4).

The presumption of reasonableness holds in the present case. The court

emphasized the sentencing principles and considerations. The enhancement factor for the

defendant’s previous history of criminal convictions or behavior alone justifies the one-year

enhancement for both sentences.2 Contrary to the defendant’s claim, the use of factor (1) is

not dependent upon the previous criminal history’s being composed of felonies;

misdemeanors may suffice. State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995).

Nothing in the trial court’s findings that led to its rejection of mitigating factors undercuts

the presumption of reasonableness.

III. Conclusion

As a consequence of our review, we affirm the judgments of the trial court.

2

The defendant did not challenge the applicability of factor (2), that the defendant was a leader in

the commission of the offense “involving two (2) or more criminal actors,” see T.C.A. § 40-35-114(2), and

the parties did not brief the applicability of factor (2). We simply observe, without holding either way, that

the “offense” being sanctioned was for “possession” and that the defendant was the only actor in possession

of the contraband. As such, one may reasonably question whether this offense involved two or more criminal

actors. The resolution of the issue is unnecessary because, under the current sentencing regime, “a trial

court’s misapplication of an enhancement or mitigating factor does not remove the presumption of

reasonableness from its sentencing decision,” Bise, 380 S.W.3d at 709, and as we have noted, the use of

factor (1) amply undergirds the enhancement of the sentences to three years.

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JAMES CURWOOD WITT, JR, JUDGE

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