State of Tennessee v. Carmelo Gonzalez-Fonesca

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 10, 2016

STATE OF TENNESSEE v. CARMELO GONZALEZ-FONESCA

Appeal from the Criminal Court for Davidson County

No. 2014-A-144 J. Randall Wyatt, Jr., Judge

No. M2015-01322-CCA-R3-CD – Filed July 21, 2016

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This is Defendant‟s, Carmelo Gonzalez-Fonesca‟s, direct appeal from his convictions by

a jury of one count of possession of 150 grams or more of heroin with the intent to sell or

distribute and one count of possession of drug paraphernalia with the intent to prepare

and package a controlled substance. As a result, he was sentenced to an effective

sentence of fifteen years in incarceration as a Range I, standard offender. Defendant

appeals, challenging the sufficiency of the evidence, the expert testimony of Sergeant

Gene Donegan, and the chain of custody with respect to the evidence. After a review, we

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 NORMA MCGEE

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

David Harris (on appeal) and M. Oliver Osemwegie (at trial), Nashville, Tennessee, for

the appellant, Carmelo Gonzalez-Fonesca.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney

General; Glenn R. Funk, District Attorney General; and Amy Hunter, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual Background

On October 11, 2013, officers from the Metro Nashville Police Department were

called to the UPS terminal to inspect a suspicious package. The package was addressed

to Sandra Hernandez in Nashville, Tennessee. It was sent next-day air from California.

The address to which the package was addressed is a duplex but the package did not

specify a unit. Upon investigation, police were unable to find a driver‟s license, utility

bills, or a criminal history related to the name on the package.

Detective Daryl Howard of the Metro Nashville Police Department took the

package from the UPS terminal to the police station. Once at the police station, officers

set out five packages in a row, one of which contained the suspicious package addressed

to Sandra Hernandez. A police canine alerted on the suspicious package, prompting

officers to secure a search warrant for the package based upon the tracking numbers and

the belief that it contained narcotics. After obtaining the search warrant, the police

opened the package to discover 1200 grams of black tar heroin. The heroin was covered

in mustard to disguise the scent.

The Metro Police Officers set up delivery of the package to its destination.

Detective Adam Read acted as a UPS delivery man in a brown van outfitted with UPS

stickers. Detective Howard and other officers waited in the back of the van, monitoring

the situation with radio communication.

As the van pulled up to the address indicated on the package, Defendant and

Codefendant Arturo Zamudio were sitting on the front porch of the adjacent residence.

Detective Read exited the van and approached the duplex, pausing in front of the building

when he saw Defendant “running” toward him. Detective asked Defendant if it was his

house, and Defendant seemed to respond affirmatively by pulling keys out of his pocket

as if he were going to open the door. Detective Read asked Defendant “something to the

affect that is this your residence” and “are you [the name on the package],” and

Defendant “shook his head yes” and “said yes.” Detective Read thought that Defendant

understood what he was saying because Defendant followed the detective to the van.

Detective Read got the package out of the van and handed it to Defendant. Defendant

“accepted the package [and] placed it between his legs as if he understood that I had

something for him to sign.” At that point, Detective Read gave the takedown signal, and

Defendant was arrested. Defendant had $1594 in his pocket in small bills at the time of

his arrest.

Codefendant Zamudio saw the officers and fled into the residence. Officer John

Wright was in position at the rear of the duplex and observed Codefendant Zamudio step

outside the residence and toss a larger plastic bag and five smaller plastic bags containing

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heroin into the yard. Codefendant Zamudio was apprehended inside the residence and

arrested. A third codefendant, Luis Ibarra-Zamora, was present inside the residence and

was also arrested.

Officers secured a search warrant for the residence where codefendant Zamudio

was apprehended and codefendant Zamora was located. Detective Howard noted that the

residence had a strong smell of vinegar, which in his experience indicated the presence of

black tar heroin. Upon searching the residence, officers found it to be essentially empty,

consistent with a typical “stash house” where drugs were processed. There was a card

table in the dining room. On the card table, the officers found a large quantity of rubber

balloons for packaging heroin, a white spoon covered in black tar, black tape, sandwich

baggies, and digital scales. In the refrigerator, officers recovered 25 grams of heroin.

The search also uncovered $15,000 in small bills stacked in a kitchen drawer. In the

upstairs portion of the residence, officers located a ledger book, commonly used to

document drug sales. Outside the residence, officers located brown powder weighing

sixteen grams and five bundles of plastic bags containing black tar heroin with an

aggregate weight of five grams. During the search of the residence, Detective Howard

personally received all of the evidence in a single bag which he ultimately delivered to

the property room.

LouAnne Corcoran, of the Metropolitan Nashville Police Crime Laboratory,

worked as the Tennessee Bureau of Investigation (“TBI”) Laboratory Submissions Clerk.

She submitted the evidence to the TBI. It was received at the TBI by Erica Miller, a

forensic technician, but was ultimately tested by Special Agent Forensic Scientist Ella

Carpenter of the TBI. Special Agent Carpenter determined that one package contained

heroin and weighed 271.92 grams, one package contained heroin and weighed 233.68

grams, one package contained heroin and weighed 25.12 grams, and four additional

bundles contained a similar substance but were not weighed or tested because the 150

gram threshold was already reached. The untested materials were consistent with the

tested materials in appearance. They weighed 685.05 grams.

Defendant, Codefendant Zamudio, and Codefendant Ibarra-Zamora were indicted

in January of 2014 by the Davidson County Grand Jury for possession of 150 grams or

more of heroin with the intent to sell or deliver and possession of drug paraphernalia with

the intent to prepare and package a controlled substance. At a joint trial, the State‟s proof

consisted of the facts presented above in addition to the testimony of Sergeant Gene

Donegan. Sergeant Donegan testified as an expert in narcotics investigation that he had

worked in narcotics enforcement since 1988, was a certified narcotics instructor, and had

participated in thousands of drug trafficking investigations over the course of his career.

He explained that the house in this case was a typical stash house, set up to facilitate the

movement of drugs throughout the community. He explained that Mexican cartels

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ordinarily sent two or three individuals to run a drug operation in the United States. The

delivery of a package addressed to a person who did not exist was consistent with the

general method of heroin trafficking—it frustrated the tracking of the package if it was

intercepted by authorities. Sergeant Donegan explained that the majority of the sales did

not occur near the stash house as heroin dealers ordinarily met their buyers in public

spaces. Sergeant Donegan confirmed that in Nashville, black tar heroin was ordinarily

packaged in balloons consistent with the balloons found at the residence, some of which

contained heroin. He estimated that the value of the heroin was approximately $200,000

and that it would supply approximately 1000 users for one week. Sergeant Donegan also

explained that the $15,000 found in the house was typical of a heroin dealing operation,

with a typical income of $4000-$6000 per day.

Defendant and his codefendants did not present any proof. The jury convicted

Defendant as charged in the indictment.1 After a sentencing hearing, the trial court

imposed an effective sentence of fifteen years in incarceration and set Defendant‟s fine at

$500,000.00.

Subsequently, Defendant filed a motion for new trial in which he challenged the

sufficiency of the evidence, the chain of custody of the evidence, Sergeant Donegan‟s

qualification as an expert at trial, and his sentence. After the hearing, the trial court

reduced the fine from $500,000 to the mandatory minimum amount of $2000. The trial

court denied all other requests for relief. Defendant filed a timely notice of appeal.

Analysis

I. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence. Specifically, Defendant

complains that the State failed to prove that he “knowingly” possessed the heroin with

the intent to sell or deliver. He argues the “record is replete with references to

circumstances indicating that [Defendant] did not have the state of mind necessary to

convict him for the offense.” To support his argument, Defendant points to the following

proof: (1) the addressee of the package was not Defendant; (2) Defendant approached the

UPS driver from the next door address; (3) Defendant only communicated nonverbally

with the UPS driver; and (4) Defendant does not speak English. The State insists that

ample evidence was presented to support the convictions.

1

Codefendant Ibarra-Zamora was convicted of facilitation of possession of heroin with the intent

to sell or deliver in Count One and not guilty in Count Two. Codefendant Zamudio was convicted as

charged in the indictment. Neither codefendant is a party to this appeal.

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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

the reviewing court must answer 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).

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

with intent to manufacture, deliver or sell such controlled substance.” T.C.A. § 39-17-

417(a)(4). Heroin is a Schedule I controlled substance. See id. § 39-17-406(c)(11). A

person acts knowingly “with respect to the conduct or to circumstances surrounding the

conduct when the person is aware of the nature of the conduct or that the circumstances

exist.” T.C.A. § 39-11-302(b).

The proof at trial, viewed in a light most favorable to the State, established that a

package containing heroin was addressed to a fictitious person, Sandra Hernandez.

Sergeant Donegan testified that heroin traffickers commonly addressed packages to false

names in order to prevent the authorities from tracking the packages. Detective Read,

posing as a UPS driver, approached the residence on the package when Defendant ran

toward him from the porch on the other side of the duplex. The detective asked

Defendant if it was his house and Defendant responded affirmatively and pulled keys out

of his pocket as if he were going to open the door. Detective Read read the name on the

package and Defendant again responded affirmatively. Detective Read opined that

Defendant understood his questions. Defendant followed Detective Read to the truck to

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retrieve the package. When Defendant received the package, he placed it in between his

legs and reached for the clipboard to sign for the package. The takedown signal was

given by Detective Read, and Defendant was arrested. Defendant had $1594 in small

bills in his pocket. The subsequent search of the residence revealed the presence of

heroin packaged for resale, supplies to package heroin for resale, an additional quantity

of heroin, a ledger book, and $15,000 in cash.

In this case, the jury obviously accredited the testimony of the officers. The jury

is left to determine the mental state of the defendant by drawing inferences from the

surrounding circumstances. See, e.g., Poag v. State, 567 S.W.2d 775, 778 (Tenn. Crim.

App. 1978). Additionally, 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

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). There was ample evidence from which

the jury could determine that Defendant knowingly possessed the heroin with the intent

to sell or distribute.2 Defendant is not entitled to relief on this issue.

II. Expert Witness

Defendant complains that the trial court failed to find that the expert testimony of

Sergeant Donegan would “substantially assist the trier of fact to understand the evidence

or to determine a fact in issue” as required by Tennessee Rule of Evidence 702.

Defendant argues that “whether there was a trafficking operation is not necessarily

instructive to whether [Defendant] knowingly possessed that package with the intent to

sell or deliver its contents.” Defendant does not challenge Sergeant Donegan‟s

qualification as an expert witness in the area of drug trafficking, merely how his

testimony assisted the jury in making the determination of guilt.

Questions regarding the qualifications, admissibility, relevancy, and competency

of expert testimony are matters left within the broad discretion of the trial court. See

McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 263-64 (Tenn. 1997); State v. Ballard,

855 S.W.2d 557, 562 (Tenn. 1993). On appellate review, the trial court‟s ruling shall not

be overturned absent a finding that the trial court abused its discretion in admitting or

2

Defendant does not challenge the conviction for possession of drug paraphernalia to prepare and

package a controlled substance on appeal.

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excluding the expert testimony. Ballard, 855 S.W.2d at 562. “[A]n appellate court

should find an abuse of discretion when it appears that the trial court applied an incorrect

legal standard, or reached a decision which is against logic or reasoning that caused an

injustice to the party complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997).

Rule 702 of the Tennessee Rules of Evidence addresses the admissibility of

opinion testimony of expert witnesses. It states:

If scientific, technical, or other specialized knowledge will substantially

assist the trier of fact to understand the evidence or to determine a fact in

issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise.

Additionally, an expert witness‟s testimony must be relevant to the issues at trial.

Relevant evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Tenn. R. Evid. 401.

Defendant contends that the witness‟s testimony was not helpful to the

determination of the ultimate issue of whether Defendant knowingly possessed the

package of heroin with the intent to sell or deliver. We disagree. This Court has

previously held that “[w]hen the State establishes that an officer possesses the necessary

training, experience, and familiarity with the illicit drug trade, the officer may testify

about matters relating to the business of buying, selling, trading, and use of illegal drugs

pursuant to Rule 702 of the Tennessee Rules of Evidence.” State v. Elliot, 366 S.W.3d

139, 147 (Tenn. Crim. App. 2010); see also State v. Telly Lamont Booker, No. E2011-

01915-CCA-R3-CD, 2013 WL 1342491, at *4-5 (Tenn. Crim. App. Apr. 3, 2013), perm.

app. denied (Tenn. June 12, 2013); State v. Gayle Thomas Crawford, No. W2009-00263-

CCA-R3-CD, 2009 WL 3233519, at *6-7 (Tenn. Crim. App. Oct. 7, 2009), perm. app.

denied (Tenn. Apr. 23, 2010); State v. Daniel Potin, W2005-01100-CCA-R3-CD, 2006

WL 1548672, at *4 (Tenn. Crim .App. June 7, 2006), perm. app. denied (Tenn. Nov. 13,

2006); State v. Samuel L. Giddens, No. M2002-00163-CCA-R3-CD, 2004 WL 2636715,

at *2 (Tenn. Crim. App. Nov. 15, 2004); State v. Timothy Murrell, No. W2001-02279-

CCA-R3-CD, 2003 WL 21644591, at *5-7 (Tenn. Crim. App. July 2, 2003). To obtain a

conviction in this case, the State was required to prove that Defendant knowingly

possessed the heroin for sale or delivery, an issue addressed directly by Sergeant

Donegan‟s testimony. See Tenn. R. Evid. 401. Sergeant Donegan‟s testimony regarding

the heroin trade certainly informed the jury‟s determination of whether Defendant

possessed the heroin for sale or delivery. In consequence, the trial court did not abuse its

discretion by admitting the testimony. Defendant is not entitled to relief on this issue.

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III. Chain of Custody

Next, Defendant challenges the chain of custody of the physical evidence used to

convict him. Specifically, Defendant points to the faulty evidence collection technique

employed by Detective Chad Young during the search of the residence. The State

disagrees.

We review challenges to the chain of custody of evidence under the abuse of

discretion standard. State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v. Beech, 744

S.W.2d 585, 587 (Tenn. Crim. App. 1987). Under this standard, we will not reverse

unless the trial court “„applied an incorrect legal standard, or reached a decision which is

against logic or reasoning that caused an injustice to the party complaining.‟” State v.

Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (quoting Shuck, 953 S.W.2d at 669).

Tennessee Rule of Evidence 901(a) provides: “[t]he requirement of authentication

or identification as a condition precedent to admissibility is satisfied by evidence

sufficient to the court to support a finding by the trier of fact that the matter in question is

what its proponent claims.” As we have previously recognized, it is “„well-established

that as a condition precedent to the introduction of tangible evidence, a witness must be

able to identify the evidence or establish an unbroken chain of custody.‟” Scott, 33

S.W.3d at 760 (quoting State v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App.

1998)). This evidentiary rule is designed to insure “„that there has been no tampering,

loss, substitution, or mistake with respect to the evidence.‟” Id. (quoting State v. Braden,

867 S.W.2d 750, 759 (Tenn. Crim. App. 1993)).

Even though each link in the chain of custody should be sufficiently established,

this rule does not require that the identity of tangible evidence be proven beyond all

possibility of doubt; nor should the State be required to establish facts which exclude

every possibility of tampering. Scott, 33 S.W.3d at 760. The State is not required to call

every single person who handled the item prior to its admission as evidence. See State v.

Johnson, 673 S.W.2d 877, 881 (Tenn. Crim. App. 1984). “Accordingly, when the facts

and circumstances that surround tangible evidence reasonably establish the identity and

integrity of the evidence, the trial court should admit the item into evidence.” State v.

Cannon, 254 S.W.3d 287, 296 (Tenn. 2008). However, if the State does not offer

sufficient proof of the chain of custody, the “evidence should not be admitted . . . unless

both identity and integrity can be demonstrated by other appropriate means.” Scott, 33

S.W.3d at 760 (quoting Neil P. Cohen et. al., Tennessee Law of Evidence § 901.12, at

624 (3d ed. 1995)).

Defendant insists that the chain of custody was not properly established with

regard to the items seized in the search of the residence because multiple police officers

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searched the residence and turned everything over to Detective Young who, in turn,

bagged and maintained the inventory of the items. Defendant argues that each officer

should have personally signed each bagged item before it was entered on the log by

Detective Young. At trial, Detective Howard testified that he personally looked at each

item of evidence before it was bagged and processed by Detective Young. Detective

Howard maintained an inventory of the evidence as it was collected. Detective Howard

personally packaged and delivered all the evidence to the evidence room. LouAnne

Corcoran testified that she received the evidence and ultimately submitted it to the TBI.

At the TBI, the evidence was received by Ms. Miller and tested by Special Agent

Carpenter. The testimony provided by the State was more than enough to “reasonably

establish the identity and integrity of the evidence.” Cannon, 254 S.W.3d at 296.

Defendant is not entitled to relief on this issue.

III.

Conclusion

For the foregoing reasons, the judgments of the trial court are affirmed.

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TIMOTHY L. EASTER, JUDGE

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