State of Tennessee v. Danny Santarone

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 23, 2015 Session

STATE OF TENNESSEE v. DANNY SANTARONE

Appeal from the Criminal Court for Sullivan County

No. S60198 Robert H. Montgomery, Jr., Judge

No. E2014-01551-CCA-R3-CD – Filed October 1, 2015

_____________________________

Defendant, Danny Santarone, was convicted of possession of dihydrocodeinone,

oxycodone, cocaine, and heroin within 1000 feet of a school with the intent to sell or

deliver. On appeal, Defendant argues that the evidence is insufficient to support his

convictions and that application of the school zone enhancement violates public policy.

Based upon a thorough review of the record, authorities, and arguments, we conclude that

the evidence is sufficient to support Defendant’s convictions and that his argument

regarding the public policy behind the school zone enhancement is without merit. We

therefore affirm the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which ROBERT W.

WEDEMEYER, J., joined. NORMA MCGEE OGLE, J., concurred in results only.

Stephen M. Wallace, District Public Defender; William A. Kennedy, Assistant Public

Defender (on appeal); and David Crockett, Elizabethton, Tennessee (at trial), for the

appellant, Danny Santarone.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Barry Staubus, District Attorney General; and Kent Chitwood, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

This is Defendant’s direct appeal from his Sullivan County convictions for

possession of various controlled substances within 1000 feet of a school with the intent to

sell or deliver.

On February 15, 2012, the Sullivan County Grand Jury indicted Defendant for

possession of dihydrocodeinone within 1000 feet of a school with the intent to sell or

deliver, a Class C felony; possession of oxycodone within 1000 feet of a school with the

intent to sell or deliver, a Class B felony; possession of drug paraphernalia, a Class A

misdemeanor; possession of .5 grams or more of cocaine within 1000 feet of a school

with the intent to sell or deliver, a Class A felony; and possession of heroin within 1000

feet of a school with the intent to sell or deliver, a Class A felony. Defendant was tried

before a jury on March 5 and 6, 2013.

Factual Background

On Saturday, July 16, 2011, Matthew Henriksen, an operations manager with

Federal Express (“FedEx”) in Blountville, was monitoring a conveyor belt of newly-

arrived packages when he noticed an envelope that was bulging open, revealing what

appeared to be a large prescription bottle. The package was addressed to Defendant at an

address in Johnson City. Upon further inspection, the label on the bottle appeared to be

worn, and the packaging was inconsistent with a shipment from a pharmacy. Suspicious,

Mr. Henriksen contacted Detective Burk Murray of the Sullivan County Sheriff’s Office.

Detective Murray asked Mr. Henriksen to try to identify the pills in the bottle. Mr.

Henriksen pulled out of the bottle some brown paper, a clear bag with white powder in it,

and some yellow pills that appeared to be consistent with Vicodin. Detective Murray

then came and took possession of the package. Mr. Henriksen suggested that he could

tell the intended recipient that the package had been delayed because the truck it was on

had broken down.

After the scheduled delivery time of noon had passed, Defendant contacted FedEx

and inquired about the package. The employee who spoke with him informed Defendant

that the package had been delayed. Mr. Henriksen instructed the employee to let

Defendant know that they would stay open thirty minutes after their normal closing time

if he wanted to pick up the package that day, otherwise it would be delivered the

following business day. Defendant insisted on picking the package up that day and asked

for directions to the FedEx facility.

Mr. Henriksen called Detective Murray to let him know that Defendant would be

coming to pick up the package. Detective Murray did not have time to set up a controlled

delivery in a different county, so he brought the package back to the FedEx facility and

Mr. Henriksen repackaged it. Detective Murray had patrol units set up on either side of

the FedEx facility so that they would be able to intercept Defendant if he left in either

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direction. Detective Murray parked in the parking lot next door so that he could observe

when Defendant arrived.

Around 3:30 p.m., Defendant arrived with his daughter, Rachael Santarone.1 The

FedEx employees unlocked the door for them. Defendant signed for the package, took

possession of it, and left. Mr. Henriksen called Detective Murray to let him know that

Defendant left with the package. Detective Murray was able to identify Defendant from

the driver’s license photo that corresponded to the name and address on the package.

Officer Jessie Nunley of the Sullivan County Sheriff’s Office parked his vehicle

where he could observe Defendant’s vehicle if he left the FedEx facility and headed

toward the airport. Another officer set up on the other side of the FedEx facility in case

Defendant left traveling in that direction. Detective Murray radioed that Defendant had

left toward the airport and described his vehicle as a green Isuzu. Officer Nunley saw the

vehicle pass his position, turned out behind it, and initiated a traffic stop. Defendant

stopped his vehicle on Highway 75, and Officer Nunley directed him to pull over on a

side street out of traffic. Both the initial stop location and the side street were within

1000 of the real property of Holston Elementary School.

Both Defendant and his daughter were removed from the vehicle and arrested.

When the police officers searched the vehicle, they recovered the FedEx package from

the center console, an ibuprofen bottle from the driver’s side floorboard, and a Tylenol

bottle, a small prescription bottle, a set of brass knuckles, and a cut off straw in Rachael’s

purse. The FedEx package contained a large prescription bottle in the name of Sabrina

Fisher, two small baggies containing white powder, and a broken yellow pill. Agent Carl

Smith, a forensic scientist with the Tennessee Bureau of Investigation, tested the various

pills and powders found in Defendant’s vehicle. Within the FedEx package, Agent Smith

identified 110 tablets of dihydrocodeinone, 1.3 grams of cocaine, .14 grams of heroin,

and 43 tablets of oxycodone; Agent Smith did not identify the broken yellow pill. The

small prescription bottle found in Rachael’s purse, which was labeled as a prescription of

oxycodone for Linda Santarone, contained 59 and a half tablets of hydromorphone. The

Tylenol bottle found in Rachael’s purse contained 33 tablets of oxycodone. The

ibuprofen bottle found on the driver’s side floorboard contained 69 tablets of a different

brand of oxycodone.

Rachael Santarone, Defendant’s daughter and codefendant, testified for the State

at trial. In December of 2010, when Rachael was eighteen years old, she came to live

with her father and stepmother in Tennessee. Prior to that, she was living in Florida with

her mother. She admitted that she was addicted to oxycodone and that her drug problem

1

Due to witnesses having the same last name, we will refer to them by their first names for

clarity. No disrespect is intended.

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was the reason her parents decided that she should move away from Florida. However,

Rachael would obtain pills from her father and her drug problem got worse while she

lived with him. After their arrest, she moved out to live with her boyfriend.

Rachael testified that Defendant, her stepmother, and her adult stepsister were

unemployed from the time she moved in in December 2010 until she and Defendant were

arrested in July 2011. During this time, Defendant and her stepmother traveled to Florida

about once a month. Upon their return, Rachael would notice both an increase in the

number of visitors to their home as well as an improvement in the family’s finances. The

visitors would occasionally go to a back bedroom for a few minutes and then leave. On

one occasion, Rachael was in the car with Defendant when he exchanged pills with a man

for money, but she did not know the man’s name or how many pills Defendant gave him.

Rachael recognized the pills as oxycodone because she was addicted to them at the time.

Rachael also recalled that Defendant often received packages from Florida. Some of

these packages were addressed to Rachael, and she became upset with Defendant and

asked him to tell his friends to no longer address the packages in her name.

On July 16, 2011, Defendant woke Rachael from a nap and asked her to go with

him to the FedEx office to pick up a package. She was suspicious that the package

contained drugs. Rachael entered the FedEx facility with Defendant. Defendant signed

for the package, then brought it back to the car. He placed the package in the center

console without opening it. Also in the center console were three smaller pill bottles.

When Defendant was being pulled over by the police, he told Rachael to put the smaller

bottles in her purse. She described the situation as “chaotic,” and one of the bottles did

not end up in her purse. She denied that the pill bottles were hers or that she knew they

were in the car. She admitted that the brass knuckles and the straw found in her purse

were hers and that she used the straw to ingest oxycodone.

Rachael made a statement to the police the day after her arrest. She denied that

the police made her any promises in exchange for her statement. In exchange for her

truthful testimony, Rachael pled to the reduced charges of possession of

dihydrocodeinone, a Class D felony, and of possession of oxycodone, a Class C felony,

as well as misdemeanor possession of drug paraphernalia and possession of a prohibited

weapon. The charges of possession of cocaine and heroin for sale or delivery within

1000 feet of a school were dismissed. Rachael received a probationary sentence.

Defendant’s wife, Linda Santarone, testified on her husband’s behalf. She

explained that she and Defendant had legitimate prescriptions for oxycodone to cope with

the pain associated with various injuries. Even though they had been living in Tennessee

for five years, Linda and Defendant still obtained their prescriptions from a pain

management doctor in Florida. In 2011, they were each prescribed 360 oxycodone pills

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and 90 Xanax per month. She explained that the couple drove to Florida every month to

obtain their pills as well as visit family and friends.

Linda testified that Defendant, who had made his living as a carpenter, was unable

to work due to his various injuries. She explained that they were able to pay for their

medications and trips to Florida with money that Defendant received as an inheritance

after his father passed away, as well as from buying and selling cars and jewelry and

from back child support payments. She denied that either she or Defendant sold any of

their pills.

Linda explained that a lot of friends came to help around the house after

Defendant broke his leg. She denied that there would be an increase in visitors after the

couple returned from Florida or that they would meet anyone privately in a back

bedroom. Even though Linda had earlier testified that she and Defendant always took all

of their prescribed medication, she testified that both she and Defendant would regularly

give pills to friends who said they were in pain, and the friends would repay them in kind

once their own prescriptions had been filled. She also testified that she noticed some of

her pills would go missing in large quantities after Rachael moved in with the family.

On cross-examination, Linda admitted that Defendant was obtaining pain

medication from a doctor in Tennessee after he broke his leg as well as continuing to

obtain medication from the doctor in Florida. By the time of trial, she and Defendant

were no longer seeing the doctor in Florida and were obtaining their pills from a pain

management doctor in Knoxville. She denied that Defendant received regular packages

from Florida but stated that Rachael often received packages. Linda explained that they

put the oxycodone pills in the Tylenol and ibuprofen bottles to try to hide them from

Rachael. She denied that the hydromorphone in the old oxycodone prescription bottle

belonged to her. Linda testified that Sabrina Fisher, the name on the large prescription

bottle in the FedEx package, was the girlfriend of John Balmer, a friend of Defendant’s

from Florida.

Amber Phelps, Linda Santarone’s daughter and Defendant’s stepdaughter, also

testified for the defense. Ms. Phelps testified that she was the only one in the household

who did not use drugs. She admitted that her parents had a drug problem and that they

would exchange pills with others who had prescriptions. She denied that they ever

bought or sold pills. Ms. Phelps testified that she had seen her stepsister Rachael steal

pills from her parents on a few occasions. She said that Rachael was using both

oxycodone and cocaine and that Rachael was getting the drugs in packages sent from

Florida by Rachael’s mother. She characterized Rachael as a habitual liar.

Defendant testified on his own behalf. He testified that he had various injuries

from his years of working as a carpenter and that he could no longer work due to his

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injuries. He was prescribed medication by a pain management doctor in Florida. Both he

and his wife were prescribed 360 oxycodone pills per month. Defendant testified that he

has since started seeing a doctor in Tennessee and that his prescription had been reduced

to 148 pills per month.

Defendant testified that in July 2011, a friend of his from Florida named John

Balmer was coming to Tennessee to visit Defendant. Defendant was expecting a package

to be delivered to his house prior to Mr. Balmer’s arrival. Defendant knew that the

package was to be delivered on Saturday and that Mr. Balmer would be arriving a day or

two after. When the package did not arrive as scheduled, Defendant called FedEx. He

was told that the package could not be delivered because the truck had broken down and

that he would have to pick up the package. Defendant drove to the FedEx facility with

his daughter, Rachael, following the directions given to him over the phone. On cross-

examination, Defendant testified that he was insistent on picking up the package that day

because the FedEx employee did not provide a redelivery date and he wanted to be sure

that he had the package when Mr. Balmer arrived.

Defendant denied that he put the drugs in Rachael’s purse when they were pulled

over, but admitted that he did have a bottle of oxycodone in the center console of the car.

He stated that he had not opened the FedEx package and that he did not know what was

inside of it. He explained that he intended to take the package home and store it until Mr.

Balmer arrived. Defendant denied that he used heroin or hydrocodone. He admitted that

he had been convicted of selling cocaine over 15 years ago but denied that he currently

uses cocaine. Defendant admitted knowing that there would be prescription medication

in the package, but denied knowing that the cocaine or heroin would be in there. He

denied ordering any of the contents of the package.

The jury convicted Defendant as charged of possession of dihydrocodeinone

within 1000 feet of a school with the intent to sell or deliver, possession of oxycodone

within 1000 feet of a school with the intent to sell or deliver, possession of cocaine within

1000 feet of a school with the intent to sell or deliver, and possession of heroin within

1000 feet of a school with the intent to sell or deliver.2 After a sentencing hearing, the

trial court sentenced Defendant to concurrent sentences of 6 years for the

dihydrocodeinone conviction, 12 years for the oxycodone conviction, and 25 years for

both the cocaine and the heroin convictions. On July 11, 2014, the trial court denied

Defendant’s motion for a new trial. Defendant then filed a notice of appeal.3

2

Prior to trial, the State dismissed the charge of possession of drug paraphernalia.

3

The State notes that Defendant’s notice of appeal was filed one day late, but recognizes that this

Court may waive the requirement for a timely notice of appeal “in the interest of justice.” See Tenn. R.

App. P. 4(a).

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Analysis

On appeal, Defendant challenges the sufficiency of the evidence supporting his

convictions and argues that application of the school zone enhancement in this case was

against public policy because the location of Defendant’s arrest4 was chosen by law

enforcement. The State responds that the evidence is sufficient to support Defendant’s

convictions and that the enhancement of Defendant’s sentences was consistent with the

Drug-Free School Zone Act. We will address each issue in turn.

I. Sufficiency of the Evidence

When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles. The relevant question is

whether any rational trier of fact could have found the accused guilty of every element of

the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,

443 U.S. 307, 319 (1979). The jury’s verdict replaces the presumption of innocence with

one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence

introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d

247, 277 (Tenn. 2002). The prosecution is entitled to the “strongest legitimate view of

the evidence and to all reasonable and legitimate inferences that may be drawn

therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.

Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role of this Court to reweigh or

reevaluate the evidence, nor to substitute our own inferences for those drawn from the

evidence by the trier of fact. Reid, 91 S.W.3d at 277. Questions concerning the

“credibility of the witnesses, the weight to be given their testimony, and the

reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of

fact.” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State v. Campbell,

245 S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict by the jury, approved by the trial

court, accredits the testimony of the witnesses for the State and resolves all conflicts in

favor of the prosecution’s theory.” Reid, 91 S.W.3d at 277 (quoting State v. Bland, 958

S.W.2d 651, 659 (Tenn. 1997)). The standard of review is the same whether the

conviction is based upon direct evidence, circumstantial evidence, or a combination of

the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Hanson, 279

S.W.3d 265, 275 (Tenn. 2009).

Defendant was convicted of four counts of possession of various controlled

substances within 1000 feet of a school with the intent to sell or deliver. Under

Tennessee Code Annotated section 39-17-417(a)(4), it is an offense for a person to

knowingly possess a controlled substance with the intent to manufacture, sell, or deliver

4

In his appellate brief, Defendant phrases this issue as the “location of the sale.” However, we

note that there was no actual sale in this case.

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the controlled substance. If that possession occurs within 1000 feet of the real property

of a school, the offense is punished one classification higher. T.C.A. § 39-17-432(b)(1).

Dihydrocodeinone is a Schedule III controlled substance. See T.C.A. § 39-17-410.

Oxycodone and cocaine are Schedule II controlled substances. See T.C.A. § 39-17-408.

Heroin is a Schedule I controlled substance. See T.C.A. § 39-17-406.

In order to convict Defendant, the State was required to prove: (1) that he

knowingly possessed the controlled substances; (2) that he possessed the controlled

substances with the intent to sell or deliver them; (3) that he possessed the controlled

substances within 1000 feet of the real property of a school5; and (4) with regard to the

cocaine, that it weighed more than .5 grams. We note that a person may possess

contraband alone or jointly with others, State v. Richards, 286 S.W.3d 873, 885 (Tenn.

2009) (citations omitted), and that possession of a controlled substance may be either

actual or constructive, State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).6 “One’s mere

presence in an area where drugs are discovered, or one’s mere association with a person

who is in possession of drugs, is not alone sufficient to support a finding of constructive

possession.” Id. “Proof that a possession is knowing will usually depend on inference

and circumstantial evidence. Knowledge may be inferred from control over the vehicle

in which the contraband is secreted.” State v. Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App.

1995) (citing United States v. Pierre, 932 F.2d 377, 392 (5th Cir. 1991)). By proving that

a defendant possessed drugs he intended to sell or deliver, the State necessarily proves

knowing possession. See T.C.A. § 39-11-301(a)(2) (“intentional” includes “knowing”);

see generally State v. Marshall, 870 S.W.2d 532, 538 (Tenn. Crim. App. 1993) (“By

alleging that the defendant possessed cocaine which he intended to sell, the indictment

necessarily implied that it was a knowing possession.”).

Defendant does not contest that he knowingly possessed the various drugs found

in his car; rather his argument on appeal is that the State failed to prove that he intended

to sell or deliver those drugs. Under Tennessee Code Annotated section 39-17-419, the

jury may infer “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.” The statutory definition of “deliver” includes “the actual, constructive, or

5

The State need not prove that Defendant knew that he was committing an offense within 1000

feet of a school. State v. Smith, 48 S.W.3d 159, 169 (Tenn. Crim. App. 2000); State v. Jenkins, 15

S.W.3d 914. 917 (Tenn. Crim. App. 1999).

6

A person constructively possesses a drug when the person has both the power and intention to

exercise dominion and control over the drugs either directly or indirectly through others. See State v.

Patterson, 966 S.W.2d 435, 444-45 (Tenn. Crim. App. 1997). In other words, constructive possession is

the ability to gain actual possession over an object. State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim.

App. 1996).

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attempted transfer from one person to another of a controlled substance, whether or not

there is an agency relationship.” T.C.A. § 39-17-402(6); see State v. Anthony Brown, No.

W2010-01764-CCA-R3-CD, 2012 WL 1154284, at *3 (Tenn. Crim. App. Mar. 30,

2012), perm. app. denied (Tenn. Aug. 16, 2012).

In the light most favorable to the State, the evidence shows that Mr. Henriksen, an

operations manager at FedEx, noticed that a package addressed to Defendant had burst

open and that it contained a large prescription bottle with a worn and out of date label not

in Defendant’s name. Mr. Henriksen notified Detective Murray about the suspicious

package. Upon inspection, Mr. Henriksen discovered that the bottle contained a large

amount of pills as well as some powder. The contents of the bottle were determined to be

110 tablets of dihydrocodeinone, 1.3 grams of cocaine, .14 grams of heroin, and 43

tablets of oxycodone.

Defendant called the FedEx facility inquiring about the package when it did not

arrive as scheduled. An employee at FedEx told Defendant that the package had been

delayed and that he could wait to have it delivered or pick it up from the facility that day.

Defendant chose to pick up the package and asked for directions to the facility. A FedEx

employee had to unlock the door for Defendant when he arrived because it was thirty

minutes after their usual closing time. Detective Murray had officers posted on either

side of the FedEx facility so that they would be able to stop Defendant regardless of

which way he left. Officer Nunley pulled over Defendant after he left the FedEx facility,

and the location of the stop was within 1000 feet of Holston Elementary School.

Defendant’s car was searched, and officers found three smaller bottles containing

prescription pills in addition to the FedEx package.

Defendant’s daughter, Rachael Santarone, was a passenger in the vehicle and was

charged as a codefendant. She testified for the State that Defendant frequently made trips

to Florida with his wife to obtain large quantities of prescription pain killers, which was

confirmed by both Defendant and his wife. Rachael testified that the number of visitors

to the house would increase after these trips and that the visitors would go to a back

bedroom for a few minutes before leaving. Rachael also testified that on one occasion,

she observed Defendant exchange a bag of oxycodone pills with a man for money.

Defendant and his wife denied selling pills but admitted exchanging pills with friends on

a regular basis. Rachael testified that, after they were pulled over by the police,

Defendant attempted to throw the smaller pill bottles which had been in the center

console into her purse and that, in the chaos, one did not make it in. Defendant admitted

that he knew the FedEx package contained prescription medication and that he intended

to hold the package until his friend arrived from Florida. Defendant denied knowing that

the package contained cocaine or heroin.

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Defendant’s argument on appeal is that the only evidence establishing his intent to

sell was the testimony of his daughter and codefendant, Rachael Santarone, who

Defendant asserts was not a credible witness.7 However, the assessment of the credibility

of the witnesses and the weight and value of the evidence are entrusted to the jury as the

trier of fact and will not be reevaluated on appeal. Reid, 91 S.W.3d at 277. Additionally,

the jury could infer Defendant’s intent to sell from the amount and variety of drugs

contained in his vehicle along with other relevant factors. See State v. Belew, 348 S.W.3d

186, 190 (Tenn. Crim. App. 2005) (citing T.C.A. § 39-17-419). Inside Defendant’s

vehicle were over 300 prescription pills in multiple containers, including two different

types of oxycodone pills, and neither of the prescription bottles were either current or in

Defendant’s name. Agent Smith testified that the packet of heroin contained a sufficient

amount to produce multiple doses; the FedEx package also contained more than a gram

of cocaine. Defendant denied that the drugs were for his personal use, and the only drug

paraphernalia found in the car was a straw in Rachael’s purse, which she admitted was

hers. Defendant admitted that he gave pills to friends on a fairly regular basis, though he

attempted to characterize these transactions as casual exchanges rather than sales.

Rachael observed Defendant selling pills to a man in his car on one occasion and noticed

an improvement in the family’s finances after Defendant’s many trips to Florida to obtain

prescription pills. Defendant admitted that he knew the FedEx package contained

prescription medication but denied that he knew it contained cocaine and heroin. A jury

is free to accept portions of a witness’s testimony and reject others. See State v. Adams,

45 S.W.3d 46, 56 (Tenn. Crim. App. 2000). Finally, Defendant admitted that he intended

to hold the package until Mr. Balmer’s arrival, thereby delivering the contents of the

package to Mr. Balmer. From this evidence, a rational jury could reasonably conclude

that Defendant possessed this vast and varied pharmacopeia with the intent to sell or

deliver it.

II. Enhancement under the Drug-Free School Zone Act

Defendant argues that the enhancement of his sentences under the Drug-Free

School Zone Act was inappropriate and against public policy because the location of his

arrest was chosen by law enforcement. The State responds that the statute does not

mandate the tactics of law enforcement and foreclose the use of enhanced punishment

when law enforcement tacitly allows drugs to enter a school zone. Moreover, the State

7

We note that while Defendant challenges the credibility of Rachael’s testimony, he does not

argue that it is uncorroborated accomplice testimony. See State v. Jones, 450 S.W.3d 866, 888 (Tenn.

2014) (holding that “the uncorroborated testimony of one or more accomplices . . . is insufficient to

sustain a conviction as a matter of law,” but noting that “corroborative evidence may be direct or entirely

circumstantial, and it need not be adequate, in and of itself, to support a conviction; it is sufficient to meet

the requirements of the rule if it fairly and legitimately tends to connect the defendant with the

commission of the crime charged.”) We conclude that Rachael’s testimony was adequately corroborated

by the testimony of other witnesses. See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).

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argues that the evidence does not support Defendant’s claim that law enforcement lured

him into the school zone. We agree with the State.

Tennessee Code Annotated section 39-17-432, also known as the Drug-Free

School Zone Act, states:

A violation of § 39-17-417, or a conspiracy to violate the section, that

occurs on the grounds or facilities of any school or within one thousand feet

(1,000’) of the real property that comprises a public or private elementary

school, middle school, secondary school, preschool, child care agency, or

public library, recreational center or park shall be punished one (1)

classification higher than is provided in § 39-17-417(b)-(i) for such

violation.

T.C.A. § 39-17-432(b)(1). Rather than creating a separate criminal offense, this statute

“merely imposes a harsher penalty for violations of Tenn[essee] Code Ann[otated

section] 39-17-417 occurring within a school zone.” State v. Smith, 48 S.W.3d 159, 168

(Tenn. Crim. App. 2000); see T.C.A. § 39-17-432(b).

Defendant argues that because the General Assembly’s goal in creating the Drug-

Free School Zone Act was to keep illegal drugs off school grounds, any act by law

enforcement that tacitly allows drugs to enter a school zone forecloses the use of the

school zone enhancement. An appellate court’s role in construing a statute is to give

effect to the legislative intent without unduly restricting or expanding a statute’s coverage

beyond its intended scope. See State v. Butler, 980 S.W.2d 359, 362 (Tenn. 1998). This

Court should derive legislative intent from the natural and ordinary meaning of the

statutory language within the context of the entire statute without any forced or subtle

construction that would extend or limit the statute’s meaning. Id. This Court will refer to

the legislative history of a statute only when faced with ambiguous language. State v.

Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). Moreover, this Court “will not apply a

particular interpretation to a statute if that interpretation will yield an absurd result.”

State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000).

Tennessee Code Annotated section 39-17-432 plainly and unambiguously states

that the Act is intended “to serve as a deterrent” in order “to create drug-free zones for

the purpose of providing vulnerable persons in this state an environment in which they

can learn, play and enjoy themselves without the distractions and dangers that are

incident to the occurrence of illegal drug activities” by imposing “enhanced and

mandatory minimum sentences.” T.C.A. § 39-17-432(a). The State is not required to

prove that the defendant knew that he was committing an offense within 1000 feet of a

school, nor even that school was in session at the time of the offense. Smith, 48 S.W.3d

at 169. A defendant may be convicted under the Act if he was merely traveling through

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the school zone while in possession of controlled substances, even if he was arrested

elsewhere. See State v. Vasques, 221 S.W.3d 514, 523 (Tenn. 2007). This Court has

explained the rationale for this rule:

[R]egardless of a defendant’s intent to distribute drugs within a school

zone: “the mere presence of substantial quantities of drugs increases the

risk of gunfire and other violence. . . . In addition, a person possessing

drugs may abandon them while fleeing from the police. . . . The drugs may

also be lost or stolen near a school and may then find their way into

students’ hands.”

Smith, 48 S.W.3d at 169 (quoting United States v. Rodriguez, 961 F.2d 1089, 1094 (3d

Cir. 1992)); see also State v. Arturo Jaimes-Garcia, No. M2009-00891-CCA-R3-CD,

2010 WL 5343286, at *14 (Tenn. Crim. App. Dec. 22, 2010), perm. app. denied (Tenn.

May 31, 2011).

Defendant has pointed to no authority that the legislature meant to foreclose the

use of the school zone enhancement when law enforcement officers fail to prevent an

offender from entering a school zone while in possession of drugs, and any interpretation

of the statute in that manner would yield an absurd result. Defendant’s argument would

require the State to prove that he chose to be in the school zone while in possession of

illegal drugs, which would require a showing of knowledge on Defendant’s part.

However, this Court has rejected that argument: “a requirement that the dealer know that

a sale is geographically within the prohibited area would undercut [the] unambiguous

legislative design [to create drug-free school zones].” Smith, 48 S.W.3d at 169 (quoting

United States v. Falu, 776 F.2d 46, 50 (2nd Cir.1985)) (alteration in original). The Act is

intended “to serve as a deterrent” to the “unacceptable conduct” of violating Tennessee

Code Annotated section 39-17-417 within a school zone by imposing “enhanced and

mandatory minimum sentences,” not by mandating the tactics of law enforcement. See

T.C.A. § 39-17-432(a).

Indeed, it appears that Defendant is simply making a “backdoor attempt” to argue

entrapment, a defense which was specifically waived by Defendant at trial. See State v.

Jermaine Rashad Carpenter, No. E2007-02498-CCA-R3-CD, 2009 WL 331330, at *4

(Tenn. Crim. App. Feb. 11, 2009), perm. app. denied (Tenn. Aug. 17, 2009). While “[i]t

is a defense to prosecution that law enforcement officials, acting either directly or

through an agent, induced or persuaded an otherwise unwilling person to commit an

unlawful act when the person was not predisposed to do so,” T.C.A. § 39-11-505, the

defense must be “fairly raised” by the evidence before the trial court is required to give a

jury instruction on entrapment. State v. Blackmon, 78 S.W.3d 322, 331 (Tenn. Crim.

App. 2001). We recognize that proof that the State lured a defendant into the school zone

would “fairly raise” an entrapment defense; however, there was no such proof in this

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case, and defense counsel specifically asked the trial court to remove entrapment from the

jury instructions because it had not been raised by the proof.8 See State v. Charles

Lincoln Faulkner, No. E2006-02094-CCA-R3-CD, 2008 WL 2242531, at *16 (Tenn.

Crim. App. June 2, 2008). The evidence in this case demonstrates that Defendant insisted

on picking up his package full of illegal drugs from the FedEx facility rather than wait for

it the be delivered on a later date. Detective Murray, who was unaware of the route

Defendant would travel, instructed officers to station themselves on either side of the

FedEx facility. Detective Murray did not instruct the FedEx employee on which route to

suggest to Defendant should he ask for directions. Defendant chose the route that he

travelled after leaving the FedEx facility. Defendant argues that Detective Murray could

have arrested him in the parking lot of the FedEx facility, which was not in a school zone.

However, Detective Murray was conducting surveillance while other officers were

prepared to stop and arrest Defendant’s vehicle. And, as noted above, Defendant has

pointed to no authority that the Drug-Free School Zone Act requires law enforcement

officers to actively attempt to prevent a defendant from bringing illegal drugs into a

school zone. Defendant’s argument is without merit.

Conclusion

Based on the foregoing, we affirm the judgments of the trial court.

_________________________________

TIMOTHY L. EASTER, JUDGE

8

Notice of an entrapment defense had been properly filed before trial. See T.C.A. § 39-11-505.

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