The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 5, 2014
STATE OF TENNESSEE v. FREDERIC A. CROSBY
Appeal from the Circuit Court for Weakley County
No. 2013-CR8 William B. Acree, Jr., Judge
No. W2013-02610-CCA-R3-CD - Filed September 9, 2014
Appellant, Frederic A. Crosby, stands convicted of possession of 0.5 grams or more of
cocaine with the intent to deliver, a Class B felony, and simple possession of marijuana, a
Class A misdemeanor. The trial court sentenced appellant to twelve years for his cocaine
conviction and eleven months, twenty-nine days for his marijuana conviction, to be served
concurrently. On appeal, appellant argues that: (1) the trial court erred by failing to grant his
motion to suppress because the arresting officer did not have probable cause to search him;
(2) that the evidence was insufficient to support his conviction for possession of 0.5 grams
or more of cocaine with the intent to deliver; and (3) that the trial court erred by imposing
the maximum sentence within appellant’s sentencing range for his conviction for possession
of 0.5 grams or more of cocaine with the intent to deliver. Following our review of the
briefs, the record, and the applicable law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL, P.J.,
and A LAN E. G LENN, J., joined.
Joseph P. Atnip, District Public Defender (on appeal), Dresden, Tennessee; and James T.
Powell (at trial), Union City, Tennessee, for the appellant, Frederic A. Crosby.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
This case concerns the discovery of marijuana and cocaine in the possession of
appellant after the police responded to a call involving a verbal altercation between appellant
and another individual. Appellant was indicted on two counts of possession of 0.5 grams or
more of cocaine with the intent to deliver and two counts of simple possession of marijuana
based on two incidents occurring on November 16 and 21, 2012. However, following the
State’s case-in-chief in which it presented no evidence regarding the November 21, 2012
incident, the State moved to dismiss the two counts of the indictment relating to the
November 21 incident, which was granted. Therefore, the evidence at trial only pertained
to one count of possession of 0.5 grams or more of cocaine with the intent to deliver and one
count of simple possession of marijuana. Appellant’s trial began on September 18, 2013, and
he was convicted as charged.
I. Facts
A. Facts from the Motion to Suppress Hearing
The trial court held a suppression hearing on April 4, 2013. Officer Patrick Dilday,
a police officer with the Martin Police Department, testified that he responded to a call
reporting a domestic disturbance at 9:39 p.m. on November 16, 2012. After arriving, Officer
Dilday observed appellant and a woman arguing in a parking lot on North Lindell Street, so
he and another officer separated the two individuals. Officer Dilday explained that when he
began speaking with appellant, he smelled the odor of marijuana emanating from appellant’s
person. Officer Dilday then asked appellant if he had any marijuana. Appellant responded
that he did not but that he had been around other people who had been smoking marijuana.
Officer Dilday explained that he then searched appellant’s pockets and found a marijuana
cigarette in appellant’s right pants pocket and more marijuana in appellant’s jacket pocket.
Officer Dilday arrested appellant and transported appellant in Officer Dilday’s patrol car to
the police department for booking. After completing the booking procedures, the officers
released appellant with a citation, and Officer Dilday went back to his patrol car. Officer
Dilday found 5.5 grams of crack cocaine in the seat where appellant had been sitting. Officer
Dilday explained that he searches his patrol car before his shift begins and after each
transport. Officer Dilday informed his sergeant of the discovery, took pictures of the cocaine
before moving it, and filed warrants for appellant’s arrest.
During cross-examination, Officer Dilday stated that when he initially separated
appellant from the woman, he did not have probable cause to arrest appellant but that
appellant was not free to leave because the officers were investigating the domestic
disturbance. Officer Dilday explained that while speaking with appellant, he smelled fresh
marijuana, rather than burned marijuana. Officer Dilday affirmed that he searched appellant
immediately after appellant stated that he had been around other people who had been
smoking marijuana, based on the smell of marijuana. He recognized the smell of marijuana
from his training and experience. Officer Dilday confirmed that he was not concerned about
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appellant’s having a weapon and that he did not feel he was in danger. Officer Dilday stated
that he searched appellant even though he had no proof that appellant’s assertion that he had
been around other people smoking marijuana was incorrect. Officer Dilday explained that
he had been working as an officer for approximately four months prior to appellant’s arrest
and that although he could not remember the exact number, he had made prior marijuana-
related arrests. Officer Dilday also stated that his wife was riding with him on the night of
appellant’s arrest, which was permitted by the police department. Officer Dilday testified
that he searched appellant thoroughly before placing him in the patrol car. Appellant was
handcuffed while in the patrol car. Officer Dilday was inside the police station during
appellant’s booking, which took thirty-five to forty-five minutes, and searched his patrol car
immediately thereafter. The car was locked while Officer Dilday was inside. Officer Dilday
conceded that while at the police academy, he was not taught to detect the smell of raw
marijuana; however, he explained that he had “assisted [the police department’s] canine
officer, Carl Jackson, [while] training [Officer Jackson’s] dog” and that he had participated
in “several” cases where there were arrests for possession of drug paraphernalia and
marijuana, although he could not remember the exact number of prior arrests.
Investigator Eric Smith testified next that he worked for the Weakley County Sheriff’s
Department and that he had worked in law enforcement for approximately thirteen years.
Investigator Smith explained that he had made undercover drug purchases and drug arrests
and that he was familiar with the smell of marijuana. Investigator Smith asserted that raw
marijuana emitted an odor, even in small amounts. He described it, saying, “Marijuana gives
off an extreme odor. I mean, there’s no other smell like it. . . . But, yes, the smallest amount
of marijuana does give off a very strong odor.” Investigator Smith asserted that even if an
individual had a gram or two of marijuana in a coat pocket, an officer could still smell it.
During cross-examination, Investigator Smith testified that based on his experience,
if a person had marijuana in a small bag in a pocket, “most of the time” he would be able to
smell the marijuana. However, Investigator Smith conceded that he was not present when
appellant was arrested.
Defense counsel recalled Officer Dilday, who testified that the marijuana he found in
appellant’s jacket pocket was in a cellophane plastic bag that was twisted and tied closed.
The trial court took the matter under advisement and continued the case until April
18, 2013, at which time the trial court stated:
I think, under all the circumstances, the Court finds as a matter of fact
that the officer could smell the marijuana. I think he had the right, under the
circumstances [of] there being a domestic disturbance, to go on with
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questioning the defendant, and after smelling the marijuana, he had the right
to search him for drugs, the probable cause having been established.
Therefore, the motion is denied.
B. Facts from Trial
The State’s first witness was Michael Wenz, a sergeant with the Martin Police
Department. Sergeant Wenz explained that on November 16, 2012, he met appellant after
he was flagged down by Robin Jones due to a verbal altercation that was occurring between
Ms. Jones and appellant. Officer Patrick Dilday arrived to help Sergeant Wenz. Sergeant
Wenz explained that he spoke to Ms. Jones while Officer Dilday talked to appellant.
Officer Dilday’s trial testimony was substantially similar to his testimony at the
motion to suppress hearing. However, Officer Dilday further explained that the Martin
Police Department’s policy regarding marijuana arrests with a small amount of marijuana
was to arrest the offender, transport them to the police department, issue a criminal summons,
write an incident report, tag any evidence, fingerprint the arrestee, and then release the
individual. Officer Dilday agreed that the arrestee would not be given a bond and would not
be placed in jail. Therefore, Officer Dilday arrested appellant and took him to the police
station. Officer Dilday handcuffed appellant and performed a weapons search of appellant’s
person prior to placing him in the patrol car. Officer Dilday further elaborated that at the
time of this incident, he left his car at the police station at night. He stated that the proper
procedure regarding his patrol car at the beginning of each shift was to search the entire car,
“the back seat, the front seats, just do a thorough check of [his] car before each shift” to
ensure there was nothing in the car. Officer Dilday affirmed that on the day of appellant’s
arrest, he checked his car prior to beginning his shift and stated that no one else had been in
the back of his car prior to appellant’s arrest. Officer Dilday then explained that after each
transport and before going back on patrol, he checked his patrol car to “make sure nothing
was left in the back that may belong to any person that [he] may transport.” Officer Dilday
testified that when he arrived at the police station with appellant, he took appellant out of the
car, shut and locked the doors of the car, and walked appellant inside. Following the booking
procedures and during the post-transport search, Officer Dilday found a bag of cocaine next
to the seat belt buckle where appellant had been sitting.
During cross-examination, Officer Dilday testified that his wife rode with him on the
night in question and that she sat in the front passenger seat. When they arrived at the police
department with appellant, she exited the car and entered the station before he locked the car.
Officer Dilday explained that there was a solid metal divider between the front and back seats
in his patrol car and that there was a window that could be opened. Officer Dilday testified
that prior to placing appellant in the car, he searched all of appellant’s pockets and patted
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down appellant’s arms, legs, and torso. Officer Dilday explained that there was a video taken
by a camera in his car and that the video did not show appellant placing anything in the seat.
Officer Dilday conceded that after he found the marijuana, he never saw appellant acting in
a suspicious manner to indicate that he was in possession of more drugs, such as trying to
conceal things under his clothing or making unusual movements in the police car.
During redirect examination, Officer Dilday clarified that the video recording of
appellant while inside the police car did not show the bottom of the backseat where
appellant’s hands were. The video only showed the area from the arrestee’s mid-stomach
and above. He also testified that based on his initial search, appellant could have still had
drugs on his person when he was placed in the patrol car. Officer Dilday explained that
crack cocaine is normally sold for approximately $100 per gram on the street.
During recross-examination, Officer Dilday agreed that he did not fingerprint any of
the evidence found on appellant. Officer Dilday conceded that there was a set of keys to his
patrol car on a board in the police department to which other officers had access.
Lela Jackson, a scientist in the Forensic Services Division of the Tennessee Bureau
of Investigation (“TBI”), identified the two exhibits containing the seized contraband and
testified that she had performed an analysis of each package. She explained that one package
contained 1.48 grams of marijuana and that the other package held 5.55 grams of cocaine
base.
The State moved to dismiss the two counts of the indictment relating to incidents on
November 21, 2012, which was granted, leaving only one count of possession of 0.5 grams
or more of cocaine with the intent to deliver and one count of simple possession of
marijuana. The State then rested its case-in-chief. Appellant presented no additional
evidence.
After hearing the evidence, being charged by the court, and deliberations, the jury
convicted appellant as charged.
C. Facts from Sentencing
At appellant’s October 31, 2013 sentencing hearing, Kevin Sandefer, a probation and
parole officer, testified that when he prepared appellant’s investigation report, he found one
prior felony and several misdemeanor charges. Appellant had also admitted, in a
questionnaire used to develop the investigation report, to using marijuana since age nine, to
using cocaine since age sixteen, and to using crack cocaine since age eighteen. Appellant
used drugs daily if they were available.
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Appellant testified next and admitted that he had been using marijuana, cocaine, or
crack cocaine on a daily basis, if it was available, for twelve to thirteen years. Appellant
agreed that he was amenable to participation in a drug rehabilitation program to assist with
his drug addiction. Appellant stated that he was twenty-nine years old and that the last time
he had steady employment was in 2009. Appellant explained that since 2009, he had worked
at an “under-the-table job” for $10 an hour whenever he was needed.
After hearing this evidence, the trial court sentenced appellant to twelve years for
appellant’s cocaine conviction and eleven months, twenty-nine days for appellant’s marijuana
conviction, to be served concurrently. In determining length and manner of this sentence,
the trial court summarized the facts from trial; reviewed Tennessee Code Annotated section
40-35-102, which states the underlying principles of sentencing; determined that the sale and
use of drugs was a “tremendous problem” in that jurisdiction; and found that it was
“apparent” that appellant was in the “drug business for the purpose of profiting” from it. The
trial court found significant the substantial amount of drugs found on appellant and that
appellant had not been gainfully employed since 2009. The court stated, “The Court strongly
suspects that [appellant]’s main source of income would have been through some illegal drug
activities.” However, he stated that even if true, “that would not affect that sentence that [the
court was] going to impose upon him.”
The court found that appellant had a long history of criminal conduct — thirteen prior
misdemeanor charges (which included driving offenses, evading arrest, vandalism, domestic
violence, assault, reckless endangerment, possession of marijuana, disorderly conduct, and
attempted sexual battery) and one prior felony conviction for aggravated assault. The court
stated, “In short, for most of [appellant]’s adult life, he’s been engaged in a life of crime.”
In consideration of Tennessee Code Annotated section 40-35-103, which states that a
consideration of sentencing is whether measures less restrictive than confinement have been
successful for the defendant in the past, the trial court determined that probation had been
ineffective for appellant in the past, that there was a need for deterrence in this case, and that
confinement was necessary to avoid depreciating the seriousness of the offense. The court
considered the mitigating factors and found that none applied. The court also found that the
enhancement factor that appellant had a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range applied to
appellant’s sentence.
Finally, the court stated:
Considering all the principles that I’ve just announced in this case,
[appellant], considering the evidence that’s been presented in the case both at
your -- at the trial and today, considering the statements that you’ve made,
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considering your lack of remorse for this crime, considering your lack of work
history, considering your prior criminal record, considering the principles of
sentencing and the guidelines established by the state legislature, the Court
finds -- the range of punishment is 8 years to 12 years. The Court finds that
a sentence of 12 years in the Department of Corrections is appropriate in this
case.
The trial court also sentenced appellant to eleven months, twenty-nine days for his marijuana
conviction.
II. Analysis
Appellant now argues that the trial court erred by failing to grant his motion to
suppress because the arresting officer did not have probable cause to search appellant, that
the evidence was insufficient to support his conviction for possession of 0.5 grams or more
of cocaine with the intent to deliver, and that the trial court erred by imposing the maximum
sentence within appellant’s sentencing range for his conviction for possession of 0.5 grams
or more of cocaine with the intent to deliver.
A. Motion to Suppress
Appellant argues that the trial court should have granted his motion to suppress
because the arresting officer did not have probable cause to search appellant. The State
responds that the search was supported by probable cause.
A trial court’s findings of fact at a hearing on a motion to suppress are binding upon
this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001) (citing State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). As the trier of fact, the trial court is in a better position to assess the witnesses’
credibility, determine the weight of the evidence and the value to be afforded it, and resolve
any conflicts in the evidence. Odom, 928 S.W.2d at 23. However, the trial court’s
conclusions of law are not binding on this court. State v. Randolph, 74 S.W.3d 330, 333
(Tenn. 2002) (citing State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998)). Further, the trial
court’s applications of law to the facts are questions of law that we review de novo. State
v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000) (citations omitted). On appeal, the prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable inferences
drawn therefrom. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The appellant bears the
burden of establishing that the evidence contained in the record preponderates against the
trial court’s findings of fact. Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975)
(citation omitted).
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Because neither party directly contests whether the police had reasonable suspicion
to conduct an investigatory stop and, instead, focus their arguments strictly on whether there
was probable cause to search appellant, we will confine our analysis to the propriety of the
officer’s search.
At a hearing on a motion to suppress evidence recovered as a result of a warrantless
search, the State must prove that the search was reasonable. State v. Coulter, 67 S.W.3d 3,
41 (Tenn. Crim. App. 2001). To carry its burden, the State must prove that law enforcement
conducted the warrantless search or seizure pursuant to one of the narrowly-defined
exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).
Our supreme court has held:
[U]nder both the federal constitution and our state constitution, a search
without a warrant is presumptively unreasonable, and any evidence obtained
pursuant to such a search is subject to suppression unless the [S]tate
demonstrates that the search was conducted under one of the narrowly defined
exceptions to the warrant requirement. Moreover, Tennessee has approved of
and adopted exceptions to the requirement of obtaining a valid search warrant,
including search incident to arrest, plain view, stop and frisk, hot pursuit,
search under exigent circumstances, and others.
State v. Cox, 171 S.W.3d 174, 179 (Tenn. 2005) (citations omitted); see State v. Echols, 382
S.W.3d 266, 277 (Tenn. 2012). Pursuant to the exigent circumstances exception, a
warrantless search may be conducted where there are exigent circumstances and probable
cause. Fuqua v. Armour, 543 S.W.2d 64, 68 (Tenn. 1976); State v. Adams, 238 S.W.3d 313,
321 (Tenn. Crim. App. 2005). “Exigent circumstances are limited to three situations: (1)
when officers are in ‘hot pursuit’ of a fleeing suspect; (2) when the suspect presents an
immediate threat to the arresting officers or the public; or (3) when immediate police action
is necessary to prevent the destruction of vital evidence or thwart the escape of known
criminals.” Adams, 238 S.W.3d at 321 (quoting State v. Steven Lloyd Givens, No. M2001-
00021-CCA-R3-CD, 2001 WL 1517033 (Tenn. Crim. App. Nov. 29, 2001)) (internal
quotation marks omitted). “Given the importance of the warrant requirement in safeguarding
against unreasonable searches and seizures, a circumstance will be sufficiently exigent only
where the State has shown that the search is imperative.” State v. Meeks, 262 S.W.3d 710,
723 (Tenn. 2008) (citations omitted). “No amount of probable cause can justify a warrantless
search or seizure, absent ‘exigent circumstances.’” Fuqua, 543 S.W.2d at 68 (quoting
Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971)) (internal quotation marks omitted).
Therefore, the decisive determinations here are whether there was probable cause and
exigent circumstances to search appellant after Officer Dilday smelled marijuana on
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appellant’s person. “Probable cause generally requires reasonable grounds for suspicion,
supported by circumstances indicative of an illegal act.” State v. Williams, 193 S.W.3d 502,
507 (Tenn. 2006). “‘Probable cause must be more than a mere suspicion.’” Echols, 382
S.W.3d at 278 (quoting State v. Lawrence, 154 S.W.3d 71, 76 (Tenn. 2005)). However,
“probable cause ‘deal[s] with probabilities[,] . . . not technical[ities,] . . . the factual and
practical considerations of everyday life on which reasonable and prudent [persons] . . . act.’”
Id. (quoting State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008)); see Brinegar v. United States,
338 U.S. 160, 175 (1949).
Appellant argues that there was no probable cause to search him based solely on
Officer Dilday’s detection of the odor of raw marijuana. Specifically, appellant distinguishes
the case law regarding officers’ smelling marijuana by arguing that when officers smell a
“strong” or “intense” odor of marijuana, there is probable cause but that when officers smell
only a faint smell of marijuana, the evidence must be corroborated by another officer before
probable cause to search is established. We refuse to make such a distinction. Appellant’s
argument essentially rises and falls on the credibility of Officer Dilday regarding his
detection of the odor of marijuana. However, as the trier of fact at a suppression hearing, the
trial court is in a better position to assess the witness’s credibility, determine the weight of
the evidence and the value to be afforded it, and resolve any conflicts in the evidence. Odom,
928 S.W.2d at 23. Officer Dilday testified that based on his training with a canine drug
detection dog and his experience in prior arrests, he recognized the smell of raw marijuana
on appellant’s person. The trial court credited this testimony and found that the officer could
smell the marijuana. We will not disturb that credibility finding on appeal.
Regarding whether the smell of marijuana alone can establish probable cause, our case
law reflects that it can. This court’s cases regarding the smell of marijuana during a traffic
stop of a vehicle are instructive on this issue. In Hicks v. State, this court stated:
Since the officer’s actions, prior to the time he smelled the odor of the
contraband marijuana, were permissible, the smell of marijuana established
probable cause to believe that a crime other than the traffic violation had been
committed. The detection of the odor of marijuana was sufficient to allow the
subsequent warrantless search of the automobile.
534 S.W.2d 872, 874 (Tenn. Crim. App. 1975) (citations omitted). Our supreme court has
also stated that the smell of marijuana was sufficient to establish probable cause, stating:
The officer who testified that he smelled the odor of marijuana coming from
the vehicle when [defendant] lowered the window also testified that by reason
of his training and experience he was able to detect and identify the distinctive
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odor of marijuana. In our opinion, this constituted probable cause to believe
that the vehicle contained contraband marijuana.
State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976). While these cases factually address the
search of a car rather than a person, we determine that there is no distinguishable practical
difference for purposes of this case. Whether the odor was emitting from the inside of a car
or from a jacket pocket, marijuana is an illegal substance that emits a distinctive odor.
Furthermore, this court in State v. James C. Leveye, determined that the smell of marijuana
on a person was sufficient to establish probable cause to search. No. M2003-02543-CCA-
R3-CD, 2005 WL 366892, at *3 (Tenn. Crim. App. Feb. 16, 2005); see State v. Reginald
Allan Gillespie, No. 03C01-9706-CR-00222, 1999 WL 391560, at *3 (Tenn. Crim. App. June
16, 1999) (finding probable cause to search a person after officer smelled marijuana and
observed smoke lingering about appellant’s person). Therefore, given our case law, Officer
Dilday’s testimony, and the trial court’s credibility determinations, we determine that there
was probable cause for Officer Dilday to search appellant’s person for marijuana.
However, even with probable cause, there must still have been exigent circumstances
to justify this warrantless search. Our court in State v. Gillespie stated that after a probable
cause determination that an individual standing on a sidewalk possessed contraband, exigent
circumstances were present because:
[The officer] was confronted with the possibility that the appellant might flee
from his presence. Additionally, . . . the appellant had the ability to dispose of
the drugs, even in the presence of the officers. In our view, to have failed to
search under such circumstances would have meant risking loss of the
contraband. Thus, we conclude that there were exigent circumstances which
justified the warrantless search of the appellant’s person.
Gillespie, 1999 WL 391560, at *3; Leveye, 2005 WL 366892, at *3. Similarly, we determine
that there were exigent circumstances here. Officer Dilday had already asked appellant about
the origins of the odor of marijuana, alerting appellant to the issue of drug detection. Officer
Dilday could not have left appellant to get a warrant or detained appellant while another
officer obtained a warrant to search appellant without risking an escape attempt or possible
destruction of evidence. Therefore, we determine that there were exigent circumstances to
search here.
Having determined that there was probable cause and that there were exigent
circumstances, we conclude that the search was reasonable and that the trial court did not err
by denying appellant’s motion to suppress. Appellant is without relief as to this issue.
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B. Sufficiency of the Evidence
Appellant next argues that the evidence was insufficient to support his conviction for
possession of 0.5 grams or more of cocaine with the intent to deliver. Specifically, appellant
argues that someone else could have put the cocaine in the back seat of the patrol car. He
argues that Officer Dilday’s wife, who was riding in the car with Officer Dilday on the day
of appellant’s arrest, had some access to the car and that there was a spare set of keys in the
police station to which others officers had access during the time in which appellant was
being booked. Furthermore, nothing in the police car’s video revealed appellant acting
suspiciously during his transport to the police department. Appellant argues that based on
this evidence, no reasonable jury could have found him guilty beyond a reasonable doubt.
The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).
On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857
(Tenn. 2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of
witnesses and the weight and value to be given the evidence, as well as all factual disputes
raised by the evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court
presumes that the jury has afforded the State all reasonable inferences from the evidence and
resolved all conflicts in the testimony in favor of the State; as such, we will not substitute our
own inferences drawn from the evidence for those drawn by the jury, nor will we re-weigh
or re-evaluate the evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes
the presumption of innocence that appellant enjoyed at trial and replaces it with one of guilt
at the appellate level, the burden of proof shifts from the State to the convicted appellant,
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who must demonstrate to this court that the evidence is insufficient to support the jury’s
findings. Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
To sustain a conviction for possession 0.5 grams or more of cocaine with intent to
deliver, the State must prove beyond a reasonable doubt that appellant knowingly
“[p]ossess[ed] a controlled substance with intent to . . . deliver . . . the controlled substance.”
Tenn. Code Ann. § 39-17-417(a)(4). In that regard, possession of cocaine “is a Class B
felony if the amount involved is point five (.5) grams or more.” Id. § 39-17-417(b)(1).
Possession may be actual or constructive and may be proven with circumstantial evidence.
State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing Tenn. Code Ann. § 39-17-419;
State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)).
Viewed in the light most favorable to the State, the evidence established that: (1)
appellant was arrested for simple possession of marijuana and transported to jail in a patrol
car; (2) appellant was sitting in the back seat of the police car in the same place were the
cocaine was found; (3) Officer Dilday searched this patrol car before beginning his shift and
found no drugs of any kind prior to transporting the defendant to jail; (4) Officer Dilday shut
and locked the car doors after he, his wife, and appellant exited the car at the police station;
and (5) crack cocaine weighing 5.5 grams was found in the patrol car after appellant had
completed the booking procedures. This information was sufficient for a reasonable jury to
find beyond a reasonable doubt that appellant possessed the cocaine with intent to deliver.
While Officer Dilday’s wife had some access to the car and there was a spare set of
keys to the patrol car inside the police department, whether the drugs were placed in the car
by appellant or another individual is an issue of fact. In a jury trial, questions involving the
credibility of witnesses and the weight and value to be given the evidence, as well as all
factual disputes raised by the evidence, are resolved by the jury as trier of fact. Bland, 958
S.W.2d at 659; Pruett, 788 S.W.2d at 561. The jury heard testimony regarding Officer
Dilday’s search of his car and the individuals who had access to the car at trial, and the jury
resolved the issue of fact in the State’s favor. We will not disturb this factual finding on
appeal. This issue is without merit, and appellant is not entitled to relief.
C. Sentencing
Appellant also argues that the trial court erred by imposing the maximum sentence
within appellant’s sentencing range for his conviction for possession of 0.5 grams or more
of cocaine with the intent to deliver. In determining an appropriate sentence, a trial court
must consider the following factors: (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
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involved; (5) evidence and information offered by the parties on mitigating and enhancement
factors; (6) any statistical information provided by the administrative office of the courts as
to sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. Tenn.
Code Ann. §§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed
should be the least severe measure necessary to achieve the purposes for which the sentence
is imposed.” Tenn. Code Ann. § 40-35-103(4).
Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See Tenn.
Code Ann. § 40-35-114, -210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court must
nonetheless consider them. See id. § 40-35-210(c). Although the application of the factors
is advisory, a court shall consider “[e]vidence and information offered by the parties on the
mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-114.” Id. § 40-35-
210(b)(5). The trial court must also place on the record “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.” Id. § 40-35-210(e). The weighing of mitigating and enhancing
factors is left to the sound discretion of the trial court. State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008). The burden of proving applicable mitigating factors rests upon appellant. State
v. Mark Moore, No. 03C01-9403-CR-00098, 1995 WL 548786, at *6 (Tenn. Crim. App.
Sept. 18, 1995). The trial court’s weighing of the various enhancement and mitigating
factors is not grounds for reversal under the revised Sentencing Act. Carter, 254 S.W.3d at
345 (citing State v. Devin Banks, No. W2005-02213-CCA-R3-DD, 2007 WL 1966039, at
*48 (Tenn. Crim. App. July 6, 2007), aff’d as corrected, 271 S.W.3d 90 (Tenn. 2008)).
A trial court should base its decision regarding confinement on the following
considerations:
(A) Confinement is necessary to protect society by restraining a defendant
who has a long history of criminal conduct;
(B) Confinement is necessary to avoid depreciating the seriousness of the
offense or confinement is particularly suited to provide an effective
deterrence to others likely to commit similar offenses; or
(C) Measures less restrictive than confinement have frequently or recently
been applied unsuccessfully to the defendant.
Tenn. Code Ann. § 40-35-103(1).
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When an accused challenges the length and manner of service of a sentence, this court
reviews the trial court’s sentencing determination under an abuse of discretion standard
accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). If a trial court misapplies an enhancing or mitigating factor in passing sentence, said
error will not remove the presumption of reasonableness from its sentencing determination.
Id. at 709. This court will uphold the trial court’s sentencing decision “so long as it is within
the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709-10. Moreover,
under such circumstances, appellate courts may not disturb the sentence even if we had
preferred a different result. See Carter, 254 S.W.3d at 346. The party challenging the
sentence imposed by the trial court has the burden of establishing that the sentence is
erroneous. Tenn. Code Ann. § 40-35-401, Sentencing Comm’n Cmts.; State v. Ashby, 823
S.W.2d 166, 169 (Tenn. 1991).
Appellant does not challenge the trial court’s application of the enhancement factor
that appellant had a previous history of criminal convictions or criminal behavior in addition
to those necessary to establish the appropriate range. Appellant only argues that the trial
court erred in sentencing appellant to the maximum sentence within his range based solely
on the application of one enhancement factor.
Appellant’s conviction for possession 0.5 grams or more of cocaine with intent to
deliver was a Class B felony. See Tenn. Code Ann. § 39-17-417(a)(4), (b)(1). Because
appellant was a Range I offender, his sentencing range was between eight and twelve years.
See Id. § 40-35-112(a)(2). Therefore, appellant’s sentence was an in-range sentence.
Furthermore, the trial court considered the principles of sentencing, the evidence presented
at trial and at the sentencing hearing, appellant’s lack of remorse, appellant’s work history,
and appellant’s criminal record. On appeal, the trial court’s sentencing determination is
reviewed under an abuse of discretion standard and afforded a presumption of
reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Based on the trial court’s
considerations and the within-range sentence, we determine that the trial court did not abuse
its discretion in sentencing appellant to the maximum sentence within his sentencing range.
Appellant is without relief as to this issue.
CONCLUSION
Based on the parties’ briefs, the record, and the applicable law, we affirm the
judgments of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
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