State of Tennessee v. Christopher Demotto Linsey

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 9, 2016

STATE OF TENNESSEE v. CHRISTOPHER DEMOTTO LINSEY

Appeal from the Circuit Court for Montgomery County

No. 41400689, 63CC1-2014-CR-665 William R. Goodman, III, Judge

___________________________________

No. M2015-01851-CCA-R3-CD – Filed September 27, 2016

___________________________________

The defendant, Christopher Demotto Linsey, was indicted for tampering with evidence,

possession of cocaine with intent to sell or deliver, simple possession of marijuana,

possession of heroin, and simple possession of alprazolam. After trial, a jury found the

defendant guilty of felony tampering with evidence and misdemeanor simple possession

of marijuana, for which he received an effective twelve-year sentence. On appeal, the

defendant argues the evidence was insufficient to support the trial court‟s decision to

deny his request for a renunciation jury instruction with respect to the tampering with

evidence charge. The State concedes the evidence presented at trial was insufficient to

support the defendant‟s tampering with evidence conviction and asserts the jury

instruction question has been pretermitted. Upon review, we agree with the State. We

affirm the defendant‟s conviction for simple possession of marijuana and reverse and

vacate the defendant‟s conviction for tampering with evidence.

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

Part; Reversed in Part.

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.

and ROBERT H. MONTGOMERY, JR., J., joined.

Melissa King, Clarksville, Tennessee, for the appellant, Christopher Demotto Linsey.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant

Attorney General; John W. Carney, District Attorney General; and C. Daniel Brollier,

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

OPINION

Factual and Procedural History

On November 8, 2013, Deputy Daniel Gagnon of the Montgomery County

Sheriff‟s Office observed the defendant driving without a seatbelt and initiated a traffic

stop. When approaching the vehicle, Deputy Gagnon smelled burnt marijuana. Deputy

Gagnon asked the defendant for his license and registration. The defendant could not

produce a driver‟s license and instead gave the officer a Tennessee identification card.

Deputy Gagnon confirmed the defendant‟s license was suspended and called for backup

assistance. Deputy Gagnon also determined that the vehicle was registered to Christy

Harper.

After the arrival of the additional officer, Deputy Gagnon detained the defendant

for driving on a suspended license. Due to the marijuana odor, Deputy Gagnon asked the

defendant whether he had marijuana on him. Deputy Gagnon testified that the defendant

then “spit a green plant-like substance in a plastic bag of some sort right down at my

feet.” Deputy Gagnon admitted the defendant could have swallowed the bag but did not.

Deputy Gagnon eventually retrieved the marijuana and placed it in an evidence bag.

Deputy Gagnon searched the vehicle and noticed missing and mismatched screws

on the floorboard of the vehicle. The officer requested the canine unit, and Officer

Gabriel Johnson, with the Clarksville Police Department, and a drug detection canine

arrived at the scene. The dog indicated the smell of narcotics behind the gas and brake

pedals of the vehicle. One of the officers pulled back the floorboard carpet and found a

bag containing four smaller bags of white powder, one smaller bag of ten pills, and one

smaller bag of a black tar-like substance. Deputy Gagnon identified the pills as

alprazolam and performed field tests on the white powder and black tar-like substance,

identifying them as cocaine and heroin respectively.

Agent John Scott, Jr., a forensic scientist with the Tennessee Bureau of

Investigation, testified at trial for the State as an expert in the identification of controlled

substances. He tested the substances confiscated during the traffic stop on November 8,

2013, and authored a report documenting his findings. Agent Scott‟s analysis found 10

tablets of alprazolam, 1.09 grams of cocaine hydrochloride, 2.28 grams of cocaine base,

1.03 grams of marijuana, and 0.11 grams of heroin.

The State rested after calling Deputy Gagnon, Officer Johnson, and Agent Scott.

The defendant then moved for acquittal, arguing he did not destroy evidence in violation

of Tennessee Code Annotated section 36-16-503 because he spit the bag of marijuana out

in the presence of law enforcement officers, and the officers were then able to retrieve

-2-

and test the marijuana. The defendant further argued the State did not prove he possessed

cocaine, heroin, or alprazolam. The trial court denied the motion.

The defendant, who declined to testify at trial, called Dion Sanders and Christy

Harper as witnesses and recalled Deputy Gagnon. Mr. Sanders was a passenger in the

vehicle at the time of the stop and testified that the defendant fully cooperated with law

enforcement officers during their investigation. He did not know there were drugs in the

vehicle until he saw the defendant put a bag of marijuana in his mouth as they were being

stopped by Deputy Gagnon. Mr. Sanders testified that this was the first time he had

ridden in the vehicle with the defendant.

Ms. Harper owned the vehicle driven by the defendant at the time of the traffic

stop. Ms. Harper purchased the vehicle from a friend for the defendant to drive. The

vehicle was approximately thirteen years old at the time of purchase and remained in the

friend‟s body shop for a prolonged period of time after purchase so interior repairs could

be completed. Ms. Harper retrieved the vehicle from the auto body shop around October

20, 2013. Even though he had a suspended license, Ms. Harper permitted the defendant to

drive the vehicle for the first time on November 8, 2013.

After the defense rested, the trial court held a jury charge conference. The

defendant requested a jury instruction on renunciation, arguing he renounced any attempt

to tamper with the evidence when he spit the bag of marijuana out of his mouth. The trial

court denied the request. After hearing closing arguments and being charged, the jury

returned the following verdict: Count 1, tampering with evidence, guilty; Count 2,

possession of cocaine with intent to sell or deliver, not guilty; Count 3, simple possession

of marijuana, guilty; Count 4, possession of heroin, not guilty; Count 5, simple

possession of alprazolam, not guilty. At a subsequent sentencing hearing, the defendant

received a twelve-year sentence for tampering with evidence and a concurrent eleven-

month, twenty-nine day sentence for simple possession of marijuana. This timely appeal

followed.

On appeal, the defendant argues the trial court erred by failing to instruct the jury

on the affirmative defense of renunciation because the record contains insufficient

evidence to support the trial court‟s apparent conclusion that the defendant did not

abandon the concealment of the bag of marijuana when spitting it out of his mouth. The

State submits that, based on State v. Hawkins, 406 S.W.3d 121 (Tenn. 2013) and State v.

Elahu Hill, Jr., No. W2015-00688-CCA-R3-CD, 2015 WL 6522834 (Tenn. Crim. App.

Oct. 28, 2015), no perm. app. filed, the evidence was insufficient to support the

defendant‟s conviction of tampering with evidence, so the conviction should be reversed

and vacated. The defendant‟s conviction for simple possession of marijuana, however,

should be affirmed. We agree with the State.

-3-

Analysis

Sufficiency of the Evidence

Defendant submits this issue for appellate review: “The Trial Court erred by

failing to instruct the jury on the affirmative defense of renunciation.” In support of this

issue, the defendant argues:

The record contains no substantial evidence to support the trial court‟s

conclusion that Mr. Linsey did not abandon the concealment of the bag of

marijuana as he made it readily available to law enforcement as soon as he

was asked if there was any marijuana on him. The deputy testified that it

appeared as if it was a green plant like substance and was eventually tested

and verified that it was in fact marijuana. Though the substance was briefly

concealed, it was in no way destroyed or altered within the meaning of the

statute and therefore, the trial court erred in not allowing his defense of

abandonment.

By arguing the he renounced or abandoned any attempt to tamper with evidence when he

spit out the bag of marijuana in the presence of law enforcement, the defendant

essentially challenges the sufficiency of the evidence to support his conviction for

tampering with evidence, so we have treated his appeal as such. See Hawkins, 406

S.W.3d at 138.

When the sufficiency of the evidence is challenged, the relevant question of the

reviewing court is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also

Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier of

fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92

(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). All

questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the

trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts

in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

Our Supreme Court has stated the rationale for this rule:

-4-

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their

demeanor on the stand. Thus the trial judge and jury are the primary

instrumentality of justice to determine the weight and credibility to be

given to the testimony of witnesses. In the trial forum alone is there human

atmosphere and the totality of the evidence cannot be reproduced with a

written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 212 Tenn. 464,

370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with

which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a

convicted defendant has the burden of demonstrating that the evidence is insufficient.”

State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Guilt may be found beyond a reasonable doubt where there is direct evidence,

circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d 776,

779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977);

Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for

sufficiency of the evidence “„is the same whether the conviction is based upon direct or

circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting

State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact must

evaluate the credibility of the witnesses, determine the weight given to witnesses‟

testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331,

335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)).

Moreover, the jury determines the weight to be given to circumstantial evidence and the

inferences to be drawn from this evidence, and the extent to which the circumstances are

consistent with guilt and inconsistent with innocence are questions primarily for the jury.

Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

This Court, when considering the sufficiency of the evidence, shall not reweigh the

evidence or substitute its inferences for those drawn by the trier of fact. Id.

Tennessee Code Annotated section 39-16-503(a)(1) sets forth the following

definition of tampering with evidence:

(a) It is unlawful for any person, knowing that an investigation or

official proceeding is pending or in progress to:

(1) Alter, destroy, or conceal any record, document or thing with intent

to impair its verity, legibility, or availability as evidence in the investigation

or official proceeding[.]

-5-

Tenn. Code Ann. § 39-16-503(a)(1).

This statute requires the State to prove “timing, action, and intent” beyond a

reasonable doubt. Hawkins, 406 S.W.3d at 132 (quoting State v. Gonzales, 2 P.3d 954,

957 (Utah Ct. App. 2000)). “The „timing‟ element requires that the act be done only after

the defendant forms a belief that an investigation or proceeding „is pending or in

progress.‟” Id. (emphasis added); see also State v. Smith, 436 S.W.3d 751, 763 (Tenn.

2014). “The „action‟ element requires alteration, destruction, or concealment.” Hawkins,

406 S.W.3d at 132. To “conceal” a thing means “to prevent disclosure or recognition of”

a thing or “to place [a thing] out of sight.” Id. (citing State v. Majors, 318 S.W.3d 850,

859 (Tenn. 2010)). For “intent” to be established, the proof must show that through his

actions, the defendant intended “to hinder the investigation or official proceeding by

impairing the record‟s, document‟s or thing‟s „verity, legibility, or availability as

evidence.‟” Id. (quoting Tenn. Code Ann. § 39-16-503(a)(1)). Tampering with evidence

is a “specific intent” crime. Id. (internal citations omitted).

In State v. Hawkins, our Supreme Court considered whether abandonment of a

piece of evidence satisfies the elements of evidence tampering and concluded that, if the

abandoned evidence was not “altered or destroyed, and its discovery was delayed

minimally, if at all[,]” the elements have not been met. Id. at 131, 138. When considering

this issue of first impression, the court offered this analysis:

In drug cases, for example, convictions for tampering by concealment have

been upheld when a defendant swallows drugs and when a defendant

flushes drugs down a toilet as police approach and the drugs are recovered.

One defendant‟s conviction was upheld when he tossed the drugs out of his

moving vehicle, kept driving for a half mile, and the drugs were never

found. Another defendant‟s conviction was upheld when he tried to hide his

drugs in one pocket of a billiards table.

Conversely, in other drug cases involving alleged concealment, courts have

found mere abandonment when a defendant hides drugs in his socks or his

pocket, tosses drugs onto the roof of a garage while being pursued, drops

drugs off a roof in view of police, or throws drug evidence over a wooden

privacy fence while officers are in pursuit. Dropping a marijuana cigarette

into a sewer is mere abandonment, but dropping soluble drugs down a

sewer train could make them irretrievable and could support a tampering

conviction. Hiding drugs in one’s mouth without successfully swallowing

them also may not constitute tampering.

-6-

Id. at 135 (emphasis added) (internal citations omitted). Our Supreme Court declined to

adopt a stand-alone abandonment doctrine, because “[i]f the evidence is not actually

altered, concealed, or destroyed,” the elements of evidence tampering have not been met

and “the application of a separate abandonment doctrine would be redundant.” Id. at 138.

In State v. Elahu Hill, Jr., this Court considered whether the evidence was

sufficient to support a conviction for tampering with evidence where the defendant hid a

bag of marijuana in his mouth during a traffic stop but later spit it out in the presence of

the officers. Hill, 2015 WL 6522834, at *4. The bag was retrieved by the officers, sent to

the crime lab, tested positive for marijuana, and used as evidence at trial. Id. Based on

State v. Hawkins, this Court concluded the evidence presented was insufficient to support

the defendant‟s conviction for tampering with evidence because the defendant had not

“concealed” the marijuana within the meaning of the statute. Id.

Here, the tampering with evidence charge was based on the defendant‟s brief

placement of a bag of marijuana in his mouth. Accordingly, the State was required to

prove beyond a reasonable doubt that by placing the bag of marijuana in his mouth, the

defendant intended to impair its availability as evidence in the police investigation or at

trial. Deputy Gagnon admitted that the defendant spit a bag containing a green plant-like

substance out of his mouth in plain view after being asked whether he possessed

marijuana. Deputy Gagnon was able to retrieve the bag, and Agent Scott later identified it

as 1.03 grams of marijuana. The bag of marijuana was then used as evidence against the

defendant at trial. The defendant‟s actions in no way impaired the availability of the

marijuana to be used as evidence. The bag of marijuana was not altered or destroyed, and

its discovery was delayed minimally, if at all. Under the facts of this case, we conclude

the evidence presented was insufficient to support the defendant‟s conviction for

tampering with evidence. Therefore, we reverse and vacate the conviction.

While not directly challenged by the defendant, based on our review of the

evidence, we find the evidence sufficient to support the defendant‟s conviction for simple

possession of marijuana. To sustain a conviction for simple possession of marijuana, the

State was required to show that the defendant knowingly possessed a controlled

substance. Tenn. Code Ann. § 39-17-418(a). Marijuana is a Schedule VI controlled

substance. Tenn. Code Ann. § 39-17-415(a)(1).

Deputy Gagnon testified that when he approached the vehicle driven by the

defendant, he smelled burnt marijuana. Again, after asking the defendant if he had

marijuana, the defendant spit a bag containing a green plant-like substance onto the

ground in his presence. Agent Scott testified that the bag contained just over one gram of

marijuana. When viewed in the light most favorable to the State, this evidence is more

-7-

than sufficient to support the defendant‟s conviction for simple possession of marijuana.

This conviction is affirmed.

The defendant‟s issue regarding the renunciation jury instruction is pretermitted by

our aforementioned disposition. Accordingly, we will not consider it at this time.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the judgment of

conviction for simple possession of marijuana and reverse and vacate the judgment of

conviction for tampering with evidence.

____________________________________

J. ROSS DYER, JUDGE

-8-