State of Tennessee v. Gerald Lamont Byars

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 7, 2016

STATE OF TENNESSEE v. GERALD LAMONT BYARS

Appeal from the Circuit Court for Madison County

No. 15-211 Roy B. Morgan, Jr., Judge

No. W2016-00005-CCA-R3-CD - Filed February 27, 2017

Following a jury trial, the Defendant, Gerald Lamont Byars, was convicted of attempted

possession of 0.5 grams or more of cocaine with intent to sell, attempted possession of

0.5 grams or more of cocaine with intent to deliver, simple possession of marijuana, and

possession of drug paraphernalia. The jury also found that the two attempted cocaine

possession offenses constituted criminal gang offenses, and the Defendant received

enhanced punishment—a sixteen-year sentence, with the attempted cocaine possession

counts and the gang enhancement counts all being merged into a single conviction. He

now appeals as of right, arguing (1) that the evidence was insufficient to support his

attempted cocaine possession convictions and the gang enhancement violations; (2) that

the trial court erred by qualifying a Haywood County Sheriff‟s Officer as an expert in

gang activity; (3) that the gang enhancement statute, Tennessee Code Annotated section

40-35-121, is unconstitutional, entitling him to plain error relief; and (4) that his sixteen-

year sentence is excessive. Following our review of the record, we ascertain no error in

the guilt phase of the trial on the underlying attempted cocaine possession offenses in

Counts 1 and 2. However, because the criminal gang enhancement statute as employed

by the State in the guilt phase of the trial on Counts 5 and 6 violates the Due Process

Clause of the Fourteenth Amendment and is facially unconstitutional, plain error requires

us to reverse the judgments of the trial court in Counts 1, 2, 5, and 6, vacate and dismiss

the criminal gang enhancements in Counts 5 and 6, and remand for modification of the

judgments in Counts 1 and 2 and a new sentencing hearing on those counts. Because the

Defendant does not challenge his misdemeanor convictions or sentences in Counts 3 and

4, those judgments are affirmed.

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

in Part, Modified in Part, Reversed in Part, and Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE

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

George Morton Googe, District Public Defender; and Jeremy B. Epperson, Assistant

District Public Defender, for the appellant, Gerald Lamont Byars.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant

Attorney General; James G. (Jerry) Woodall, District Attorney General; and Jody S.

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

OPINION

FACTUAL BACKGROUND

This case arises from undercover surveillance of a residence at 109 Newton Street

in Jackson and the ultimate search of that residence on July 10, 2014. On April 27, 2015,

the Madison County Grand Jury returned a six count-indictment against the Defendant,

charging him with alternative counts of possession of 0.5 grams or more of cocaine with

intent to sell or deliver (Counts 1 and 2), a Class B felony; possession of marijuana

(Count 3), a Class A misdemeanor; possession of drug paraphernalia (Count 4), a Class A

misdemeanor; and two counts (Counts 5 and 6) of violation of the criminal gang

enhancement statute predicated on the underlying offenses in Counts 1 and 2, elevating

those offenses one conviction class. See Tenn. Code Ann. §§ 39-17-417, -418, -425(a)(1)

& 40-35-121(b). The Defendant proceeded to a trial by jury, where the following facts

were adduced during a bifurcated proceeding.

1. Guilt Phase. Investigator Tikal Greer with the Jackson Police Department

testified that he had been conducting surveillance at the 109 Newton Street address for

several days prior to July 10, 2014. During that time, Inv. Greer observed the

Defendant‟s comings and goings from that residence. Inv. Greer also determined that the

home‟s utilities were registered in the Defendant‟s name. Ultimately, based upon certain

observations, a search warrant was issued for the residence, and on July 10, 2014, at 8:00

a.m., officers executed that search warrant. Because no one answered the door, the

officers forced their way inside by ramming the door off the hinges. According to Inv.

Greer, it was then determined that the residence was unoccupied.

Upon searching the residence, officers found four individually wrapped bags of

cocaine and a small bag of marijuana on top of a kitchen cabinet. According to Inv.

Greer, the Defendant‟s “kitchen cabinet was pretty close to the ceiling, so they had to

stand on top of the actual cabinet to get to it.” Inv. Greer stated that testing later revealed

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that the bag of marijuana contained 0.6 grams and that the four bags of cocaine amounted

to 16.6 grams of “powder cocaine[.]”1

Inv. Greer testified that a digital scale and “a mixing tool” were found in the

kitchen drawer immediately below the drugs, and the scale had a white powdery

substance on it that field-tested positive for cocaine. Inv. Greer also observed a one

dollar bill in the drawer and that bill had “cocaine residue inside of it.” Inside the cabinet

directly below that drawer, officers retrieved two Pyrex measuring cups, which also field-

tested positive for cocaine. Additionally, plastic baggies were discovered “right beside”

the microwave on the kitchen counter. Inv. Greer explained that drug users “will

normally” put cocaine inside a Pyrex measuring cup “mix[ing] it with baking soda to

make crack” or “mixing it with other enhancements to actually cut it just to make more

cocaine.” He stated that drug traffickers might also use the Pyrex cup to “actually put the

cocaine in it and pour it on a digital scale to weigh it” during the resale process.

Moreover, a digital scale was “used for weighing purposes” when packaging narcotics,

according to Inv. Greer. Inv. Greer detailed the process of making “crack cocaine” for

the jury.

Based upon Inv. Greer‟s “training and experience,” all of these items found

together indicated a “resale” operation. According to Inv. Greer, the “street value” of

16.6 grams of powder cocaine was approximately $1600, and if that amount was

converted into crack cocaine, it had “six times” that value. However, the “small amount”

of marijuana was “consistent with personal use[,]” in Inv. Greer‟s opinion.

Mail was located throughout the residence with the Defendant‟s name on it—one

letter showed a recent postmark of June 5, 2014. Two medicine bottles that had the

Defendant‟s name on them were found alongside the digital scale, mixing tool, and dollar

bill in the kitchen drawer. Also, a belt with the Defendant‟s last name on it was found in

the master bedroom, and officers located a checkbook reflecting the Defendant as the

account holder. Two additional one-dollar bills with cocaine residue were found in other

locations inside the home. The Defendant‟s work ledger was discovered in the master

bedroom and showed his work schedule at Owens Corning Fiberglass.

After the search was conducted, the Defendant was arrested at Owens Corning.

The Defendant was in possession of approximately $783 at the time of his arrest.

While incarcerated in the county jail, the Defendant placed a phone call to his

mother. During that call, the Defendant said, “It was time to stop, anyway.” A recording

of the call was played for the jury. The Defendant placed a second call to a female that

was also recorded. During this conversation, the Defendant stated to the female that

1

A Tennessee Bureau of Investigation (“TBI”) forensic scientist subsequently testified that the weight of

the drugs without the packaging was 15.84 grams of cocaine and 0.45 grams of marijuana.

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“they took all [of his] money” he had “just got” but that he was still in possession of the

“money where [he] got paid yesterday.”

On cross-examination, Inv. Greer acknowledged that several of the items were

normal household items found in a kitchen. He also agreed that drug users, as well as

sellers, often owned digital scales to weigh their drugs. Furthermore, Inv. Greer

confirmed that the presence of the three one-dollar bills in the home indicated personal

cocaine usage.

That concluded the State‟s proof, and the Defendant presented testimony from

Monica Turner in his defense. Ms. Turner testified that she lived with the Defendant at

the 109 Newton Street address on July 10, 2014, when the search was conducted. She

claimed that one of the one-dollar bills found in the bathroom of the home belonged to

her and that she and the Defendant used the bill when they did cocaine. Ms. Turner

asserted that she had no knowledge of the drugs found inside the residence.

On cross-examination, Ms. Turner stated that she obtained the drugs from

“[d]ifferent places.” She also estimated that, in July 2014, she made approximately $9.75

per hour at her job and that the Defendant made $11.00 per hour at Owens Corning. She

testified regarding the household expenses and agreed that neither she nor the Defendant

would have sufficient funds to purchase $1600 worth of cocaine, the amount found inside

the home. Ms. Turner averred that, if that amount of cocaine was found in the residence,

she had “no idea” how it got there and that it must have belonged to the Defendant. She

also stated that any digital scales with cocaine residue on them, as well as any Pyrex

measuring cups, were the Defendant‟s and not hers. She claimed that, if she ever brought

cocaine into the house, she usually “finished it up[.]”

Thereafter, the jury convicted the Defendant of the lesser-included offense of

attempted possession of 0.5 grams or more of cocaine with intent to sell in Count 1; of

the lesser-included offense of attempted possession of 0.5 grams or more of cocaine with

intent to deliver in Count 2; as charged, of simple possession of marijuana in Count 3;

and as charged, of possession of drug paraphernalia in Count 4.

2. Gang Enhancement Phase. At the outset of this second phase, the trial court

conducted a jury-out hearing because the Defendant objected to Sergeant Shawn

Williams‟s testifying as an expert in street gangs. Sgt. Williams, with the Haywood

County Sheriff‟s Office (“HCSO”), was called to the stand and began by recounting his

employment history. Sgt. Williams stated that he was first hired by the Brownsville

Police Department (“BPD”) in February 1989 and worked for that agency for

approximately twenty-two and one-half years. During his time with the BPD, he

received training pertaining to gangs and narcotics law enforcement. He was also

involved in federal and state investigations, including the “OCDETF task force” from

1998 to 2005, a task force that was sponsored by the Federal Bureau of Investigation and

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“targeted the Black Gangster Disciple Nation street gang in Haywood County.” Sgt.

Williams stated that he had led and participated in “hundreds” of drug and gang

investigations “throughout [his] career” and that those investigations often involved the

execution of search warrants and use of confidential informants or “cooperating sources.”

According to Sgt. Williams, he first began investigating the Gangster Disciples when he

“was named the first gang investigator” for the BPD in October 1994. Sgt. Williams

confirmed that he retired from the BPD in August 2011, and then went to work for the

Mason City Police Department as a gang investigator for approximately six months

before taking his present job with the HCSO as “a patrol officer, a narcotics investigator

and gang investigator[.]” He agreed that his “primary focus in law enforcement ha[d]

been the investigation of street gangs.”

Regarding his résumé as a gang expert, Sgt. Williams detailed his extensive

training and certifications, his memberships in professional organizations, the offices he

had held in several gang investigators associations, and the occasions on which he had

provided group instruction on the topic. Sgt. Williams said that he had testified four

times in court “concerning the presence of street gangs” and also four times about

“someone‟s membership in a street gang[.]” According to Sgt. Williams, during his “law

enforcement experience and training,” he had become familiar with “the organizational

structure of street gangs,” “their style of dress,” “their symbols that they use,” and their

“tattoos.” Sgt. Williams estimated that, since 1994, seventy-five to eighty-five percent of

his work had dealt “with the investigation of, identification of, [and] the prosecution of

street gang members[.]”

On cross-examination, the defense asked Sgt. Williams why he retired from the

BPD. Sgt. Williams replied that he retired “because, number one, [he] was tired of the

politics, and number two, [he] was tired of being accused of and investigated for things

[he] didn‟t do.” Sgt. Williams confirmed that he had been investigated for “improper

disposal of sensitive items which were in evidence[.]” While there was never any finding

of criminal wrongdoing, according to Sgt. Williams, he was informed that the TBI found

that “several policies and procedures of the police department” had been violated. He

asserted that he was not told any specifics about what policies and procedures he had

violated due to his decision to voluntarily retire. Sgt. Williams also agreed that he had

received a written reprimand in September 2014 for “[i]nappropriate communication with

dispatch” based upon his use of “unprofessional language”; however, no further action

was taken, according to Sgt. Williams.

The trial court concluded that the defense could not ask Sgt. Williams about these

disciplinary incidents as impeachment evidence or as a method of attacking Sgt.

Williams‟s qualifications. The trial court reasoned as follows:

First of all, this inappropriate communication, I guess using

inappropriate words or responding back to dispatch, would certainly not go

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to credibility, truthfulness issue and I don‟t think has anything to do with

his qualifications as an expert . . . .

Now as far as the other matter, dealing with the TBI investigation,

I‟m looking at the press release. . . . It doesn‟t say what the BPD policies

and procedures were, it just says they‟ve been addressed. It clearly says

TBI didn‟t find [Sgt. Williams] violated criminal laws, and it said they just

uncovered several policy and procedures had been—had not been followed.

It doesn‟t talk about willfulness, intentional. It clearly rules out criminal.

....

The court is of the opinion that . . . it‟s not for impeachment

purposes, wouldn‟t be proper consideration. It really doesn‟t go to his

scientific, technical or otherwise specialized knowledge and training in this

area. I don‟t—with the lack of any further information, I don‟t find it

would be proper.

....

I‟m not going to allow it at this point due to the vagueness of the

whole situation. It‟s just not specific. It would be very misleading I think

to the trier of fact.

Sgt. Williams then gave testimony about how his expertise specifically pertained to the

Defendant‟s case. Thereafter, the trial court determined that Sgt. Williams had

specialized knowledge on street gangs, that his qualifications were sufficient to declare

him an expert in the area of gang activities, and that his testimony would substantially

assist the jury. That concluded the hearing out of the jury‟s presence.

Inv. Tikal Greer was recalled before the jury and identified some photographs he

had taken at the Defendant‟s residence. He testified that he photographed a different belt

that had been found on the bedroom dresser across from the aforementioned belt with the

Defendant‟s last name on it. This second belt was blue and white and had “DUES PAID”

printed on the belt strap and “BLAC” on the belt buckle. Inv. Greer stated that he

photographed this belt believing it to be “gang paraphernalia dealing with the Gangster

Disciples.”

Inv. Greer also observed the Defendant‟s tattoo on his right shoulder, which he

described as “a heart with wings on it, pitchfork, a crown” and had the initials “BOD” or

“BOS” above it. According to Inv. Greer, the tattoo was “associated with the Gangster

Disciples.” On cross-examination, Inv. Greer acknowledged that the tattoo “appeared

old.”

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Samuel Gilley testified that he had worked for the Jackson Police Department

almost eleven years, serving as a patrolman for four years, then on the “street crimes

unit” approximately one year, and then on “[t]he gang enforcement team” for six years.

He currently worked for Madison County Metro Narcotics, holding that position for only

a few months. Ofc. Gilley testified that he had received training in and had experience

dealing with street gangs. He also detailed his extensive knowledge, education, and

experience on the subject.

Ofc. Gilley confirmed that he was familiar with a street gang called the “Gangster

Disciples.” The Gangster Disciples was a national gang originating in Chicago, and Ofc.

Gilley had been investigating the local chapter of this gang since 2010. Ofc. Gilley

described the gang‟s organizational structure as similar to a “pyramid scheme” with the

“people at the very top” making the most money. According to Ofc. Gilley, the

“predominant function” of the Gangster Disciples had always been “narcotics

trafficking,” cocaine specifically, and “having membership to this organization

essentially is sending money back to the organization, the chairman.” In addition, Ofc.

Gilley said that Gangster Disciples engaged in other illegal activities associated with drug

sales:

[Y]ou‟re going to have beefs over territories to sell those drugs, you‟re

going to have shootings and homicides that come along with that. You‟re

going to have everything from robbery—You know, they‟re not going to

accept someone trying to sell drugs in their territory, so the first thing

they‟re going to do is rob them, take everything they have, tell them to get

out of there, you know, that‟s their turf.

Ofc. Gilley confirmed that the Gangster Disciples was the “most organized gang”

in Jackson and Haywood County, with a significant membership. There was a “close

association” between Gangster Disciples members in Jackson and Haywood County,

according to Ofc. Gilley. Ofc. Gilley was also familiar with specific individuals in these

areas, identifying Terrell Lamont Reed, Byron Purdy, William Arnold, Tommy

Champion, Michael Anthony Smith, and Marvin Sangster, whom Ofc. Gilley described

as “documented members” of the Gangster Disciples. Ofc. Gilley explained that

documented membership was based upon a ten-point scale system, where points are

awarded for certain behaviors. Each behavior or factor was given a point value, and if an

individual achieved ten points on the check list, then he or she was considered a gang

member. For example, according to Ofc. Gilley, Terrell Reed admitted to being a gang

member, which gave him nine points; Reed affiliated with other gang members, which

gave him “another couple of points”; and Reed had gang-related tattoos again giving him

“another couple of points,” placing Reed close to twenty points on a scale of ten.

Ofc. Gilley said that Reed was convicted on June 24, 2015, of possession of

cocaine with intent to sell and possession of a firearm by a convicted felon, and Reed

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pled guilty to gang enhancement at that time, specifically being a member of the

Gangster Disciples. Reed was also convicted of aggravated assault on August 26, 2011,

and sale of cocaine on May 2, 2007. According to Ofc. Gilley, Reed was “chief of

security for the governor of the State of Tennessee,” who was Purdy, and Purdy resided

in Jackson. The other individuals identified by Ofc. Gilley were also in “that higher

echelon” of Gangster Disciples membership.

Ofc. Gilley identified Michael Smith as “an associate” who, when not imprisoned,

had “served as enforcer and also chief security for the governor of the entire state.” Ofc.

Gilley described the duties of these positions: the enforcer does “whatever muscle work

needs to be done as far as shootings, assaults, anything like that”; and the chief of

security “keep[s] up with all the firearms for the gangs, make[s] sure that they know the

status the gang is on or if they‟re in a heat with someone, to make sure the right people

are armed.” Ofc. Gilley further testified that Smith had likewise admitted to being a

member of the Gangster Disciples, that Smith had “also done other things on the point of

scale to get him well above that [ten] mark[,]” and that Smith had been convicted of

possession of marijuana with intent to sell, unlawful possession of a firearm, and assault.

Regarding Tommy Champion, he had also served as enforcer for the Gangster

Disciples, had admitted affiliation with the Gangster Disciples, and had “met the

requirements of that same [ten]-point scale[,]” according to Ofc. Gilley. Champion had

convictions for possession of cocaine with intent to sell or deliver, possession of a

firearm during the commission of a dangerous felony, assault, and unlawful possession of

a firearm (two counts). Ofc. Gilley said that a firearm was a “common tool” for those

involved in the drug trade and the “gang lifestyle[.]”

Ofc. Gilley discussed how gangs use social media:

They use it for several things, to communicate with one another, also

they use it as a recruitment tool because, you know, everybody is letting

their kids on social media now. Gangster Disciples will actually begin

recruiting kids as young as [ten] years old. So it‟s a good tool for them to

use to get the word out.

Ofc. Gilley then identified two videos obtained from Facebook—one “network[ing]”

video in which Jeffrey Harris, a local rapper known as “Stack Plenty,” performed at the

gang‟s “home base,” a Jackson apartment complex; and another “video involving a

dispute between the Gangster Disciples and a rapper named Rick Ross[.]” According to

Ofc. Gilley, Rick Ross and the Gangster Disciples had “a nationwide beef” over Ross‟s

“using some depictions of some of [the gang‟s] symbols and the mention of their leader‟s

name in . . . one of his songs without [Ross‟s] paying what [the gang] observed to be

royalties for that back to them.” Both videos were played for the jury. In the videos,

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several of the aforementioned documented members are discernible, and participants can

be seen wearing gang paraphernalia, using slogans, and making hand gestures.

Ofc. Gilley next identified two Facebook photographs. The first photograph

depicted “A Gangster‟s Prayer,” which was a prayer common among gang members,

according to Ofc. Gilley. The second was a photograph of a professional basketball

player with the Chicago Bulls and included a statement congratulating the “Brothers of

the Struggle,” “basically [meaning] life, getting locked up for the things that are illegal

that you do and different things like that.” Ofc. Gilley said that gang members often

referred to each other as “Brothers of the Struggle” or “BOSS” rather than as gangsters.

There was also a reference in the photograph to “Growth and Development,” which was

another name for the Gangster Disciples, according to Ofc. Gilley. The phrase “United in

Peace” was also used, which Ofc. Gilley said referred to “an organization that was started

by the Gangster Disciples” that “claim[ed] to help stop gang violence.” The basketball

player can also be seen displaying a known gang sign of the Gangster Disciples—a

pitchfork.

On cross-examination, Ofc. Gilley was asked if it was possible to stop affiliating

with a gang, to which he responded affirmatively. Ofc. Gilley said that “normally” the

Gangster Disciples “will let you out if you have become older, had children and you want

to do it for family and/or religious reasons.” Ofc. Gilley continued, “With that being

said, you will still go to OG status where you‟re still protected by the gang, but you do

not have to participate in the active roles of committing crimes or anything like that.”

Finally, Ofc. Gilley confirmed that, if a gang member “snitched” on other gang member

about their drug activity, it could result in that person “being killed, among other things”

because it was viewed as “a pretty serious violation.”

Inv. Greer was recalled and verified that the two Facebook photos came from the

Defendant‟s Facebook account. On cross-examination, Inv. Greer confirmed that it was

possible for someone to place photographs on another person‟s Facebook account and

also that a Facebook account could be “hacked.”

Sgt. Williams was called to testify in front of the jury and, after providing his

qualifications, training, and expertise, was permitted to testify as a gang expert. He stated

that he was familiar with the Gangster Disciples—a street gang with a presence in forty-

two states, including “virtually every county in Tennessee[,]” according to Sgt. Williams.

He stated that the principal activity of the Gangster Disciples was “narcotics dealing,

specifically cocaine and heroin and marijuana[,]” but that enterprise also involved

“violent crimes, first degree murder, second degree murder, aggravated assault, simple

assault, rape and various and sundry other crimes, weapons trafficking.” Sgt. Williams

said that the Gangster Disciples in Haywood and Madison Counties were “virtually

interchangeable.” During his time investigating gangs in that area, Sgt. Williams became

familiar with the Defendant.

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Sgt. Williams recalled a conversation he had with the Defendant in April 2013.

The Defendant had been arrested, and Sgt. Williams spoke with him at the jail. Sgt.

Williams said that the Gangster Disciples controlled the Scott Street neighborhood and

that the Defendant had provided an address in that neighborhood. According to Sgt.

Williams, the Defendant “claimed credit for the calm that [the police] had seen for

several years in Brownsville and Haywood County in those areas controlled by the

Gangster Disciples.” Sgt. Williams explained:

For several years we had had incidents where rival gangs and groups

in Haywood County and City of Brownsville specifically would shoot at

each other and fight each other and that kind of stuff, and we were going

through a period at that time of calm where we hadn‟t had anything for

several years, and [the Defendant] claimed credit for the calm in that

neighborhood.

This claim by the Defendant indicated to Sgt. Williams that the Defendant held a position

of “some rank in the Gangster Disciples.” Moreover, the Defendant had admitted gang

membership in an interview conducted by Sgt. Williams several years earlier.

According to Sgt. Williams, in the gang culture, tattoos were “how gang members

let other gang members and other people that are not gang members know that they are

gang members, what gang they belong to, and they try to reflect respect between each

other and exhibit fear towards the general community[.]” Sgt. Williams testified that he

had observed the Defendant‟s tattoo. The Defendant had a tattoo identified as “the

gangster crest”—a heart with the letter “G” in the middle; on top of the heart was a three-

point crown; and on top of the crown were pitchforks and “the numbers 7-4[,]” signifying

“the letters „G‟ and „D‟ below it.”

Sgt. Williams was then shown the photograph of the blue and white belt found on

the Defendant‟s bedroom dresser. He was asked about the significance of the word

“BLAC” on the belt buckle. According to Sgt. Williams, the Gangster Disciples never

used the letters “C” and “K” together, and the Defendant was known “on the street” as

“both Hog and Crunchy Blac.” Also, the term “DUES PAID” that was printed on the belt

strap, Sgt. Williams explained, was “a prison term used by the Gangster Disciples to

show that a member, when he wears the belt, he has paid his dues for the month, and it . .

. indicates work that he‟s put in on the street from the street gang.”

The Defendant resided in and frequented areas in Brownsville controlled by the

Gangster Disciples, according to Sgt. Williams. Sgt. Williams also said that he had seen

the Defendant frequently in the company of several documented Gangster Disciples

members: Marvin Sangster, Randy Lanier, Randy Holloway, Jr., Melvin Taylor, Damont

Shaw, and Tracy Taylor.

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On cross-examination, Sgt. Williams agreed that the types of crimes he cited were

not exclusive to street gangs. He also confirmed that the Defendant‟s admission to gang

membership and the “majority of [his] observations” regarding the Defendant with other

gang members occurred over ten years ago. Sgt. Williams stated that an individual was

allowed to withdraw or “retire” to shield their children from the gang lifestyle or when

reaching a certain age. However, retirement meant:

[Y]ou don‟t have to participate in gang activities anymore, but as long as

you pay your dues, the gang will always be there to protect and they‟ll

always be there to help you, and if something kicks off, some war kicks off

with a rival gang, they do expect you to come back and participate.

Sgt. Williams said on redirect examination that most retired gang members did not

hang onto gang paraphernalia, wear gang colors or belts, and were no longer involved in

criminal activity. Because the Defendant was in possession of both cocaine and the belt,

Sgt. Williams believed he was an active participant in the Gangster Disciples. Moreover,

Sgt. Williams said that no one was ever “really out” of a street gang.

The forty-year-old Defendant testified that he did have contact with Sgt. Williams

several years prior, but he did not recall confessing to Sgt. Williams that he was a

member of the Gangster Disciples. The Defendant admitted that he was involved in the

Gangster Disciples but stated that his involvement with the gang ended before the birth of

his son, who was eighteen years old. He claimed that his gang tattoo was also “older than

[his] son.”

The Defendant said he did not know Terrell Reed, Tommy Champion, Michael

Smith, Byron Purdy, or Jeffrey Harris. He did acknowledge that he knew Marvin

Sangster but asserted that he had not seen Sangster in ten or fifteen years. The Defendant

also denied having been in the Gangster Disciples‟ “compound around Guardian Courts”

Apartments in Jackson. According to the Defendant, he had four kids and was about to

be a grandfather, and therefore, he was no longer an active member of the Gangster

Disciples, giving “up that lifestyle” for his family. The Defendant claimed that he “just

stopped” associating with the gang. Finally, the Defendant said he was not involved with

the videos shown to the jury and disagreed with “the behavior” displayed therein.

On cross-examination, the Defendant stated that he bought the sixteen grams of

powder cocaine found inside his apartment from “[s]omebody off the street[,]” although

he could not provide a name. He asserted that he often bought cocaine at the “Dollar

Store on Royal.” He disputed that the amount of cocaine in his apartment was worth

$1600, claiming that he only paid $450 for it. Regarding the digital scales found inside

his home, the Defendant professed that he used them to weigh his own cocaine to prevent

being cheated. He maintained that he did not “cook cocaine” and could not offer a

plausible explanation for why cocaine was found on the Pyrex measuring cups.

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The Defendant insisted that he did not sell drugs when he was a Gangster

Disciples, averring that the gang instead “[c]lean[ed] up the neighborhood” by taking out

garbage for the elderly, cutting their grass, and other “things of that nature[.]” According

to the Defendant, members of the Gangster Disciples participate in a wide array of

activities, with only “some” being involved in the sale of narcotics. The Defendant

acknowledged that the belt found on his dresser was a “Gangster Disciple belt” and

agreed that he went by the nickname of “Hog or Crunchy Blac.” According to the

Defendant, the belt did not have a “K” after “BLAC” simply because there was not

enough room on the buckle; it had nothing to do with gang tenets. He also asserted that

the phrase “DUES PAID” on the belt strap referenced an old song and had no gang

connotation. According to the Defendant, he “never paid any dues.” He claimed that the

phrase could also mean “time‟s up” or that one was through with the gang.

After his arrest in this case, the Defendant asked someone to lie to his employer

about why he was arrested—rather than drugs, to claim it was “just some old fine,

warrant, anything, something old.” Despite this admitted fabrication, which was

documented on one of the phone call recordings from jail, the Defendant professed that

he was testifying truthfully at trial because he was under oath.

The Defendant could not recall ever taking credit for the “calm in that particular

area” during his conversation with Sgt. Williams. He confirmed that the photo of the

professional basketball player was from his Facebook account, although he claimed it

was sent to him from someone else and that he did not purposely post it to his timeline

himself. He had no recollection of the photo regarding “A Gangster‟s Prayer.” Although

he had “thrown” gang signs in the past, he asserted that he no longer engaged in that

practice. He was able to demonstrate a hand sign for the jury and said that he had

displayed a pitchfork before.

After deliberation, the jury found that the gang enhancement statute applied to the

Defendant. Specifically, the jury found that the Defendant was guilty of criminal gang

offenses as charged in Counts 5 and 6. Further, the jury found that the Defendant was a

criminal gang member because (1) the Defendant resided in or frequented a particular

criminal gang‟s area, adopted their style or dress, their use of hand signs or their tattoos,

and associated with known criminal gang members; and (2) the Defendant was identified

as a criminal gang member by physical evidence such as photographs or other

documentation.

3. Sentencing. At the sentencing hearing, the trial court enhanced the Defendant‟s

sentence to one classification higher for his attempted cocaine possession convictions in

Counts 1 and 2, elevating those both from Class C to Class B felonies, pursuant to

subsection (b) of Tennessee Code Annotated section 40-35-121. The trial court found the

Defendant to be a Range II, multiple offender for the Class B felony convictions, which

placed the Defendant in a sentencing range of twelve to twenty years. See Tenn. Code

12

Ann. § 40-35-112(b)(2). In setting the length of the Defendant‟s sentences to the

midpoint of the range, sixteen years, the trial court considered two enhancement factors:

(1) the Defendant‟s previous history of criminal convictions in addition to those

necessary to establish the appropriate range; and (2) the Defendant had previously failed

to comply with conditions of a sentence involving release into the community. See Tenn.

Code Ann. § 40-35-114(1) & (8).

The Defendant had two other felony convictions in federal court in addition to the

two used to establish his range—a January 6, 2013 conviction for escape, receiving a

fifteen-month sentence followed by two years of supervised release (Western District of

Tennessee); and a November 13, 2007 conviction for being a felon in possession of a

firearm, receiving a seventy-two-month sentence followed by two years of supervised

release (Eastern District of Missouri). The State also documented thirteen misdemeanor

convictions in Haywood County—reckless driving (convicted on July 12, 2011); driving

on a suspended license (convicted on March 12, 1996, October 10, 1995, and December

13, 1994); driving on a revoked license “with priors” (convicted on November 14, 1996);

disorderly conduct (convicted on October 10, 1995); evading arrest (convicted on

November 14, 1996, October 24, 1995, and October 10, 1995); assault (convicted on June

21, 1994, and May 31, 1994); disobeying a stop sign (convicted on November 14, 1996);

and “threatening a police official” (convicted on December 13, 1994). Additionally, the

Defendant was convicted of possession with intent to distribute cocaine on November 14,

1996, in Haywood County and received a six-year suspended sentence. He was serving

this suspended sentence when, in federal court (Western District of Tennessee), he was

convicted on May 11, 1999, of possession with intent to distribute cocaine and received a

twenty-seven-month sentence followed by two years of supervised release.2 According

to the presentence report, the Defendant‟s six-year sentence in Haywood County was

“revoked to serve” on March 1, 1999, after he was declared an absconder, which was his

second violation of that community corrections sentence.

Inv. Greer also testified at the sentencing hearing. Inv. Greer confirmed that,

while this case was pending, the Defendant provided information to the authorities which

led to the discovery of narcotics on two occasions—on one occasion, officers recovered a

gun, 90.3 grams of powder cocaine, and 12.5 grams of crack cocaine, and several

vehicles and cash were seized; and on a separate occasion, an additional 6 grams of

powder cocaine, drug paraphernalia, and “some items from that residence” were seized.

According to Inv. Greer, both individuals involved with the narcotics seizures were

members of the Gangster Disciples. Inv. Greer agreed that the Defendant “exposed

himself” to harm by “snitching on” these other members, possibly “end[ing] up dead.”

On cross-examination, Inv. Greer said that, because the Defendant had knowledge of two

people associated with the Gangster Disciples in possession of cocaine, the Defendant

was likely still associated with that gang and involved in the “drug trade” himself.

2

The Defendant disputed that the federal offense occurred while he was on state probation.

13

The Defendant testified that he was concerned for his own welfare if sent to jail.

According to the Defendant, the gang was already aware that he had informed on other

members. The Defendant averred that he talked with Inv. Greer in hopes of staying with

his family and not going to jail.

The Defendant argued for two mitigating factors: (1) the Defendant‟s criminal

conduct neither caused nor threatened serious bodily injury; and (2) the Defendant

assisted the authorities in uncovering offenses committed by other persons or in detecting

or apprehending other persons who had committed the offenses. See Tenn. Code Ann. §

40-35-133(1) & (9). The trial court found that only one mitigating factor applied, that the

Defendant‟s criminal conduct neither caused nor threatened serious bodily injury, and did

not give any credit to the Defendant for his cooperation with the authorities.

The trial court then merged Counts 1 and 2 and imposed a sentence of sixteen

years as a Range II, multiple offender for the Class B felony cocaine convictions. The

trial court further sentenced the Defendant to eleven months and twenty-nine days each

for the simple possession of marijuana and possession of drug paraphernalia convictions

(Counts 3 and 4); those sentences to be served concurrently with one another and with the

sixteen-year sentence. After the trial court denied his motion for new trial, the Defendant

filed a timely notice of appeal.3

ANALYSIS

I. Guilt Phase

On appeal, with regard to the guilt phase, the Defendant challenges the sufficiency

of the evidence supporting his convictions for attempted possession of 0.5 grams or more

of cocaine with intent to sell or deliver in Counts 1 and 2. Although he does not contest

that he possessed cocaine, he contends it was for his personal use, noting the presence of

one-dollar bills in the residence, Inv. Greer‟s testimony that digital scales are used by

drug users as well as sellers, and Ms. Turner‟s testimony that the Defendant used cocaine.

The State responds that any discrepancies in the proof are within the province of the jury,

and the Defendant, therefore, cannot prevail in his challenge to the sufficiency of the

evidence in this regard.

An appellate court‟s standard of review when a defendant questions the

sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that the jury

has resolved all conflicts in the testimony and drawn all reasonable inferences from the

3

A transcript of the motion for new trial hearing is not included in the appellate record.

14

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness

credibility, conflicts in testimony, and the weight and value to be given to evidence were

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury‟s verdict.” Id.; State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct

evidence, circumstantial evidence, or a combination of [both] direct and circumstantial

evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The

standard of proof is the same, whether the evidence is direct or circumstantial. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the

convicting evidence “is the same whether the conviction is based upon direct or

circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)). The duty of this court “on appeal of a conviction is not to contemplate all

plausible inferences in the [d]efendant‟s favor, but to draw all reasonable inferences from

the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

The jury found the Defendant guilty in Count 1 of attempted possession of 0.5

grams or more of cocaine with intent to sell and in Count 2 of attempted possession of 0.5

grams or more of cocaine with intent to deliver, Class C felonies. As alternate theories of

the same offense, the trial court merged the two convictions.

Our criminal statutes provide that it is an offense to knowingly possess a

controlled substance with the intent to sell or deliver the controlled substance. Tenn.

Code Ann. § 39-17-417(a)(4). The Code further classifies cocaine as a Schedule II

controlled substance. Tenn. Code Ann. § 39-17-408(b)(4). As relevant here, a person

commits criminal attempt who, acting with the kind of culpability otherwise required for

the offense, “[a]cts with intent to complete a course of action or cause a result that would

constitute the offense, under the circumstances surrounding the conduct as the person

believes them to be, and the conduct constitutes a substantial step toward the commission

of the offense.” Tenn. Code Ann. § 39-12-101(a)(3). A violation of Tennessee Code

Annotated Section 39-17-417(a)(4) is a Class B felony if the amount of the cocaine

possessed is more than 0.5 grams. Tenn. Code Ann. § 39-17-417(c)(1). A conviction for

criminal attempt of an offense results in one classification lower than the most serious

crime attempted, in this case, making the Defendant‟s convictions Class C felonies.

Tenn. Code Ann. § 39-12-107(a).4

We conclude that the evidence was sufficient for a reasonable juror to find the

Defendant guilty of attempted cocaine possession with intent to sell or deliver. The proof

regarding intent in this case, as in most cases, was largely circumstantial. However, in

4

Later elevated to Class B felonies based upon the gang enhancement violations.

15

light of Inv. Greer‟s testimony and the amount of cocaine that was found, the jury could

reasonably infer that the drugs were for resale. See Tenn. Code Ann. § 39-17-419 (“It

may be inferred 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.”). Such “other relevant facts” that can give rise to an inference of intent to

sell or deliver include the absence of drug paraphernalia, the presence of a large amount

of cash, the packaging of the drugs, and the street value of the drugs. See State v. Belew,

348 S.W.3d 186, 191-92 (Tenn. Crim. App. 2005) (citing State v. Chearis, 995 S.W.2d

641, 645 (Tenn. Crim. App. 1999) (finding sufficient evidence to support the jury‟s

verdict of intent to deliver when the defendant possessed 1.7 grams of crack cocaine, no

drug paraphernalia, and 5.1 grams of baking soda); State v. Logan, 973 S.W.2d 279, 281

(Tenn. Crim. App. 1998) (finding sufficient evidence of intent to sell in support of

conviction when the defendant possessed a large amount of cash and several small bags

of cocaine); State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (finding that the

absence of drug paraphernalia and the manner of packaging of drugs supported an

inference of intent to sell); State v. Matthews, 805 S.W.2d 776, 782 (Tenn. Crim. App.

1990) (finding that testimony concerning amount and street value of drugs was

admissible to prove the defendant‟s intent); State v. Charles Benson, No. M2003-02127-

CCA-R3-CD, 2004 WL 2266801, at *8 (Tenn. Crim. App. Oct. 8, 2004) (finding that the

absence of drug paraphernalia and testimony of value and amount of 3.3 grams of

cocaine sufficient for the jury to infer the defendant‟s intent to sell and deliver it); State v.

William Martin Frey, No. M2003-01996-CCA-R3-CD, 2004 WL 2266799, at *8 (Tenn.

Crim. App. Oct. 6, 2004) (finding that testimony of 1.8 grams of cocaine, a “stack” of

cash, and absence of drug paraphernalia constituted sufficient evidence to support the

jury's inference of intent to sell)).

Here, Inv. Greer found sixteen grams of powder cocaine inside the Defendant‟s

residence, which he testified had a street value of approximately $1600. This cocaine

was packaged into four small bags. Plastic baggies were found in the residence,

alongside digital scales and Pyrex measuring cups that field-tested positive for cocaine

residue. Inv. Greer described the process of turning powder cocaine into crack cocaine

and how these items were used in that process. Based upon Inv. Greer‟s “training and

experience,” all of these items found together indicated a “resale” operation. Moreover,

according to Inv. Greer, this quantity of cocaine, if converted into crack cocaine, had six

times the street value. The Defendant was also in possession of a large sum of cash,

$783, upon his arrest; however, he only made $11 per hour at his job. He further claimed

in a recorded call from the jail that he had more money in his possession. In another call

to his mother, the Defendant stated, “It was time to stop, anyway.” While some drug

paraphernalia was found inside the home, and Ms. Turner stated that she and the

Defendant both used cocaine, the jury was free to disregard the Defendant‟s assertion that

the cocaine was solely for his personal use. See, e.g., State v. Xavier Kenta Lewis, No.

M2005-02062-CCA-R3-CD, 2006 WL 2380614, at *8 (Tenn. Crim. App. Aug 16, 2006)

16

(“[T]he jury obviously chose not to accredit the defendant‟s testimony that he had bought

the cocaine for his own personal use.”). The facts, taken together, were more than

sufficient to allow a jury to reach the conclusion that the Defendant attempted to commit

the crime of possession of a controlled substance with intent to sell or deliver it. The

Defendant is not entitled to relief on this issue.

II. Gang Enhancement Phase

During the second phase of the trial, regarding Counts 5 and 6, the jury found that

the underlying attempted cocaine possession offenses were criminal gang offenses

pursuant to Tennessee Code Annotated section 40-35-121 and subject to enhanced

punishment. Under Tennessee Code Annotated section 40-35-121(b), “[a] criminal gang

offense committed by a defendant who was a criminal gang member at the time of the

offense shall be punished one (1) classification higher than the classification established

by the specific statute creating the offense committed.” Tenn. Code Ann. § 40-35-121(b)

(2014). As applicable to this case, a “criminal gang offense” is defined as follows: “[t]he

commission or attempted commission, facilitation of, solicitation of, or conspiracy to

commit [p]ossession of a controlled substance . . . with intent to sell, deliver, or

manufacture, as defined in § 39-17-417(a)(4)[.]” Tenn. Code Ann. § 40-35-

121(a)(3)(B)(xxv) (2014). Moreover, a

“[c]riminal gang” means a formal or informal ongoing organization,

association or group consisting of three (3) or more persons that has: (A)

[a]s one (1) of its activities the commission of criminal acts; and (B) [t]wo

(2) or more members who, individually or collectively, engage in or have

engaged in a pattern of criminal gang activity.

Tenn. Code Ann. § 40-35-121(a)(1) (2014). The statute describes a “pattern of criminal

gang activity” as “prior convictions for the commission or attempted commission of,

facilitation of, solicitation of, or conspiracy to commit” the following:

(i) Two (2) or more criminal gang offenses that are classified as felonies; or

(ii) Three (3) or more criminal gang offenses that are classified as

misdemeanors; or

(iii) One (1) or more criminal gang offenses that are classified as felonies

and two (2) or more criminal gang offenses that are classified as

misdemeanors; and

(iv) The criminal gang offenses are committed on separate occasions; and

(v) The criminal gang offenses are committed within a five-year period[.]

Tenn. Code Ann. § 40-35-121(a)(4)(A) (2014). Finally, a “criminal gang member” is

identified as “a person who is a member of a criminal gang,” as defined above, and “who

meets two (2) or more of the following criteria”:

17

(A) Admits to criminal gang involvement;

(B) Is identified as a criminal gang member by a parent or guardian;

(C) Is identified as a criminal gang member by a documented reliable

informant;

(D) Resides in or frequents a particular gang‟s area, adopts their style or

dress, their use of hand signs or their tattoos and associates with known

criminal gang members;

(E) Is identified as a criminal gang member by an informant of previously

untested reliability and the identification is corroborated by independent

information;

(F) Has been arrested more than once in the company of identified criminal

gang members for offenses that are consistent with usual criminal gang

activity.

(G) Is identified as a criminal gang member by physical evidence such as

photographs or other documentation[.]

Tenn. Code Ann. § 40-35-121(a)(2) (2014).

The Defendant raises the following issues with regard to his criminal gang

enhancement offenses: (1) the trial court erred in admitting testimony from Sergeant

Shawn Williams as a gang expert; (2) the evidence is insufficient to support violations of

the gang enhancement statute; and (3) the statute violates the Due Process Clause of the

Fourteenth Amendment, entitling him to plain error relief. We will address each issue in

turn.

A. Expert Testimony

The Defendant claims that the trial court erred by allowing Sgt. Williams to testify

as an expert in street gangs because Sgt. Williams lacked sufficient qualifications to give

such testimony. Furthermore, he submits that “the trial court failed to consider the

disciplinary issues of Sgt. Williams with his current and past places of employment when

deeming him an expert witness.” The State contends that the trial court properly

exercised its discretion by allowing Sgt. Williams to testify as an expert in the field of

gang activity.

Tennessee Rule of Evidence 702 provides, “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.”

An expert may base his opinion upon facts or data imparted to or perceived by the expert

prior to or at a hearing, and the facts or data need not be admissible if they are the type of

facts or data reasonably relied upon by experts in the particular field. Tenn. R. Evid.

703. The trial court shall disallow testimony in the form of an opinion if the underlying

18

facts or data indicate a lack of trustworthiness. Id. Moreover, expert testimony must be

both relevant and reliable before it may be admitted. McDaniel v. CSX Transp., 955

S.W.2d 257, 265 (Tenn. 1997). “Questions regarding the qualifications, admissibility,

relevancy, and competency of expert testimony are matters left within the broad

discretion of the trial court.” State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). This

court will not overturn the trial court‟s ruling regarding the admissibility of expert

testimony absent an abuse of discretion. Id.

First, it is clear that gang activity is a recognized area of expertise. See State v.

Justin Mathis, No. W2005-02903-CCA-R3-CD, 2007 WL 2120190, at *9 (Tenn. Crim.

App. July 20, 2007) (citing United States v. Hankey, 203 F.3d 1160, 1169 (holding that a

police officer was qualified to testify as “gang expert”); Jackson v. State, 197 S.W.3d

468, 471 (Ark. 2004) (concluding same); People v. Williams, 753 N.E.2d 1089, 1094 (Ill.

App. Ct. 2001) (concluding same); State v. Montea Wilson, No. W2000-00748-CCA-R3-

CD, 2002 WL 925255 (Tenn. Crim. App. May 3, 2002) (reflecting that a correctional

employee was qualified at trial as an expert on gang affiliation)); see also State v. Bonds,

502 S.W.3d 118, 143-44 (Tenn. Crim. App. 2016), perm. app. denied (Tenn. 2016).

Moreover, we disagree with the Defendant‟s argument that Sgt. Williams was not

qualified to testify as an expert on street gangs. See, e.g., Mathis, 2007 WL 2120190, at

*9 (concluding same under similar facts). Our supreme court has observed that an expert

witness “may acquire the necessary expertise through formal education or life

experiences.” State v. Reid, 91 S.W.3d 247, 302 (Tenn. 2002). “However, the witness

must have such superior skill, experience, training, education, or knowledge within the

particular area that his or her degree of expertise is beyond the scope of common

knowledge and experience of the average person.” Id. Sgt. Williams testified that he

began investigating the Gangster Disciples in October 1994 when he “was named the first

gang investigator” for the BPD. Moreover, “throughout [his] career,” Sgt. Williams had

led and participated in “hundreds” of drug and gang investigations, which included the

OCDETF task force from 1998 to 2005, a task force that “targeted the Black Gangster

Disciple Nation street gang in Haywood County.” Sgt. Williams estimated that, since

1994, seventy-five to eighty-five percent of his work dealt “with the investigation of,

identification of, [and] the prosecution of street gang members[.]”

Regarding his expertise with criminal gangs, Sgt. Williams detailed his extensive

training and certifications, his memberships in professional organizations, the offices he

had held in gang investigators associations, and the occasions on which he provided

group instruction on the topic. Sgt. Williams also had testified in court before

“concerning the presence of street gangs” and about “someone‟s membership in a street

gang[.]” According to Sgt. Williams, he was familiar with “the organizational structure

of street gangs,” “their style of dress,” “their symbols that they use,” and their “tattoos.”

It was clear that Sgt. Williams‟s “primary focus in law enforcement ha[d] been the

investigation of street gangs.”

19

The Defendant argues that “the trial court failed to consider” Sgt. Williams‟s

disciplinary issues in deeming him qualified as a gang expert. This assertion is not

supported by the record. Here, the trial court found that the instance of improper

communication with dispatch did not touch upon Sgt. Williams‟s scientific, technical, or

specialized knowledge or character for truthfulness. The trial court also found that the

results of the TBI investigation into Sgt. Williams‟s violation of BPD‟s policies and

procedures were too vague and speculative to be admitted as impeachment evidence or as

evidence impacting his qualifications and credibility as an expert witness. See, e.g., State

v. Larkin, 443 S.W.3d 751, 812 (Tenn. Crim. App. 2013) (finding no merit to “the

proposition that an expert witness is „untruthful‟ when he or she omits from his or her CV

a reprimand that is not related to the litigation at issue or that does not, in and of itself,

impact the expert‟s qualifications and/or credibility”). We conclude that the trial court

did not abuse its discretion by determining that Sgt. Williams was qualified to testify as a

gang expert.

B. Sufficiency

The Defendant argues that his gang enhancement convictions under section 40-35-

121(b) were not supported by sufficient evidence. Specifically, he contends, “at best, the

proof only established his involvement in the Gangster Disciples [twenty] years or more

prior to the allegations of this matter, not at the time of the alleged offenses[,]” noting

that Sgt. Williams‟s “observations” of the Defendant “were from 1998-2005.” The State

again replies that any discrepancies in the proof are within the province of the jury, and

the Defendant, therefore, cannot prevail in his challenge to the sufficiency of the

evidence in this regard.

The State relied on the evidence presented during the first phase of the trial to

prove that the underlying offenses were criminal gang offenses as delineated by section

40-35-121(a)(3)(B)(xxv) (2014) (enumerating the commission or attempted commission

of “possession of a controlled substance . . . with intent to sell, deliver, or manufacture, as

defined in [section] 39-17-417(a)(4)” as a “criminal gang offense”). The evidence clearly

established that the Defendant was guilty of attempted possession of 0.5 grams or more

of cocaine with intent to sell and attempted possession of 0.5 grams or more of cocaine

with intent to deliver, as recounted above, satisfying the statutory definition of a criminal

gang offense.

The State also introduced ample evidence that the Defendant was a member of a

criminal gang known as the Gangster Disciples. According to Ofc. Gilley, there was a

“close association” between Gangster Disciples members in Jackson and Haywood

County. Ofc. Gilley identified Terrell Lamont Reed, Byron Purdy, William Arnold,

Tommy Champion, Michael Anthony Smith, and Marvin Sangster, as “documented

members” of the Gangster Disciples from this area. Criminal gang offense convictions

for Reed, Smith, and Champion were introduced into evidence.

20

Sgt. Williams testified that the principal activity of the Gangster Disciples was

“narcotics dealing, specifically cocaine and heroin and marijuana[,]” but that their

activities also involved “violent crimes, first degree murder, second degree murder,

aggravated assault, simple assault, rape and various and sundry other crimes, weapons

trafficking.” The Defendant was found in possession of cocaine and various items during

the July 10, 2014 search of his residence, which reflected an intent to attempt to sell or

deliver. Moreover, Sgt. Williams said that he had seen the Defendant in the company of

several documented Gangster Disciples members: Marvin Sangster, Randy Lanier,

Randy Holloway, Jr., Melvin Taylor, Damont Shaw, and Tracy Taylor.

Furthermore, the jury concluded, based upon the following criteria, that the

Defendant was a “criminal gang member”: (1) the Defendant resided in or frequented a

particular criminal gang‟s area, adopted their style or dress, their use of hand signs or

their tattoos, and associated with known criminal gang members; and (2) the Defendant

was identified as a criminal gang member by physical evidence such as photographs or

other documentation. See Tenn. Code Ann. § 40-35-121(a)(2)(D) & (G). The

Defendant‟s blue and white belt with the phrases “BLAC” and “DUES PAID” exhibited

characteristic colors and expressions of the Gangster Disciples. The belt was found on

the Defendant‟s dresser during the July 10, 2014 search. Sgt. Williams testified that most

members did not hang on to gang paraphernalia, wear gang colors or belts, or continue to

engage in criminal activity after leaving the gang. The Defendant also had a tattoo on his

right shoulder, which exhibited Gangster Disciples emblems. In April 2013, just a little

over a year prior to the search in this case, the Defendant resided in a neighborhood under

the Gangster Disciples‟ control, and during an interview with Sgt. Williams, the

Defendant took credit for the calm in the area, which indicated a position of “some rank”

in the gang to Sgt. Williams. The Defendant had, also some years prior, admitted to Sgt.

Williams that he was a Gangster Disciples member.

Ofc. Gilley said that gangs use social media as “recruitment tool[.]” Two videos

from Facebook were played for the jury—one by Jeffrey Harris, a local rapper known as

“Stack Plenty,” that was filmed at a Jackson apartment complex, the gang‟s “home base”;

and another “video involving a dispute between the Gangster Disciples and a rapper

named Rick Ross[.]” Additionally, two photographs were retrieved from the Defendant‟s

Facebook account—one depicting a professional basketball player with the Chicago Bulls

displaying a Gangster Disciples hand sign and using their gang sayings and the other

imparting “A Gangster‟s Prayer.” The Defendant also demonstrated a gang hand sign for

the jury.

Based upon the foregoing, we conclude that there was sufficient evidence for the

jury to conclude that the Defendant was an active member of the Gangster Disciples. The

jury was free to disregard his claim that he had retired from the gang. Accordingly, we

conclude that the evidence sufficiently established violations of the gang enhancement

statute. He is not entitled to relief on this issue.

21

C. Constitutionality of the Statute

The Defendant, citing State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016),

perm. app. denied (Tenn. 2016), argues that Tennessee Code Annotated section 40-35-

121 (2014)5 is overbroad, and facially unconstitutional, because the statute requires no

connection between the underlying crime and alleged gang membership in order for the

enhancement to apply. The State responds by arguing that this issue is waived because

the Defendant did not challenge the constitutionality of the statute at any time during the

proceedings in the trial court.

The Defendant concedes that he did not raise the issue in the trial court and that

the issue is reviewable on appeal only for plain error. The State cites to State v. William

Jermaine Stripling, No. E2015-01554-CCA-R3-CD, 2016 WL 3462134, at *5 (Tenn.

Crim. App. June 16, 2016), arguing that the Stripling court “suggest[s] that Stripling‟s

failure to attack the constitutionality of Tenn[essee] Code Ann[otated] [section] 40-35-

121 in a pretrial motion would have resulted in waiver had the State made waiver

arguments on appeal.” Accordingly, because the State is asserting waiver on appeal in

this case, they maintain that we should not address the Defendant‟s claim. In Stripling,

the defendant did not file a pre-trial motion challenging the constitutionality of the gang

enhancement statute, but instead, he raised the issue for the first time at the sentencing

hearing and later in his motion for new trial. 2016 WL 3462134, at *5. The panel first

stated that usually the failure to raise a constitutional challenge to a statute in a pre-trial

motion results in a waiver of the issue on appeal. Id. However, because the State did not

raise the issue of waiver when the Defendant argued the constitutionality of the statute at

the sentencing hearing or on appeal, the Stripling court addressed the merits of the

Defendant‟s claim. Id. (citing State v. Smith, 48 S.W.3d 159, 162 n.1 (Tenn. Crim. App.

2000)).

We find nothing in this court‟s analysis in Stripling that obviates the “plain error”

doctrine in its entirety. Our supreme court has held that “questions not raised in the trial

court will not be entertained on appeal and this rule applies to an attempt to make a

constitutional attack upon the validity of a statute for the first time on appeal unless the

statute involved is so obviously unconstitutional on its face as to obviate the necessity for

any discussion.” Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) (citations

omitted). The Tennessee Rules of Criminal Procedure were adopted and approved by the

General Assembly in 1978, and the drafters of the rules provided for the recognition of

“plain error” in criminal cases. State v. Adkisson, 899 S.W.2d 626, 637 (Tenn. Crim.

App. 1994). Indeed, this is precisely the situation the plain error doctrine was designed to

address. See, e.g., State v. Marvin Davis, No. W2013-00656-CCA-R3-CD, 2014 WL

1775529, at *4-9 (Tenn. Crim. App. May 1, 2014) (analyzing a defendant‟s challenge to

the constitutionality of Tennessee Code Annotated section 24-7-123, which provides for

5

The statute has since been amended.

22

the admissibility of the video recording of a forensic interview of a child under the age of

thirteen, utilizing the plain error doctrine).

The plain error doctrine states that, “[w]hen necessary to do substantial justice, an

appellate court may consider an error that has affected the substantial rights of an accused

at any time, even though the error was not raised in the motion for a new trial or assigned

as error on appeal.” Tenn. R. App. P. 36(b). In determining whether plain error review is

appropriate, the following factors must be established:

(a) the record . . . clearly establish[es] what occurred in the trial court;

(b) a clear and unequivocal rule of law [has] been breached;

(c) a substantial right of the accused [has] been adversely affected;

(d) the accused did not waive the issue for tactical reasons; and

(e) consideration of the error is “necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). On appeal, the defendant has the burden of

establishing that these five factors are met. State v. Gomez, 239 S.W.3d 733, 737 (Tenn.

2007) (citing State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). The appellate court

need not consider all five factors if any single factor indicates that relief is not warranted.

Smith, 24 S.W.3d at 283.

The Defendant argues that the statute is unconstitutionally overbroad because it

requires no nexus between the criminal activity and the Defendant‟s gang membership in

order for the enhancement to apply. We have previously examined this argument in

Bonds, 502 S.W.3d 118, and Stripling, 2016 WL 3462134. In Bonds, this court noted

that the General Assembly clearly had the authority to enact laws proscribing the harmful

effect of criminal gangs. 502 S.W.3d at 156. However, the court concluded that

Tennessee Code Annotated section 40-35-121(b) was not reasonably related to that

purpose and therefore did not satisfy the requirements of substantive due process. Id. at

156-57. In so concluding, the panel reasoned,

It simply cannot be maintained that a statute ostensibly intended to deter

gang-related criminal conduct through enhanced sentencing is reasonably

related to that purpose where the statute in question is completely devoid of

language requiring that the underlying offense be somehow gang-related

before the sentencing enhancement is applied. Without a nexus

requirement, [s]ection 40-35-121(b) directly advances only the objective of

harsher treatment of criminal offenders who also happen to be members of

a criminal gang. Because [s]ection 40-35-121(b) fails to even obtusely

target gang-related criminal activity, it lacks a reasonable relationship to

achieving the legitimate legislative purpose of deterring criminal gang

activity and therefore violates the principles of substantive due process.

23

Id. at 157.

The Bonds court further determined that the statute violated substantive due

process principles because it “imposes mandatory punishment on an eligible defendant by

imputing to him responsibility for the criminal activity of the gang as a collective without

requiring the defendant‟s knowledge of and intent to promote such activity.” 502 S.W.3d

at 158; see also Scales v. United States, 367 U.S. 203, 224-25 (1961) (“In our

jurisprudence guilt is personal, and when the imposition of punishment on a status or on

conduct can only be justified by reference to the relationship of that status or conduct to

other concededly criminal activity . . . that relationship must be sufficiently substantial to

satisfy the concept of personal guilt in order to withstand attack under the Due Process

Clause.”). The Stripling court agreed that Tennessee Code Annotated section 40-35-

121(b) violates substantive due process principles. 2016 WL 3462134, at *7-8.

The State does not dispute these holdings on appeal but argues that no clear and

unequivocal rule of law was breached at the time of the Defendant‟s sentencing in

November 2015, noting that both Bonds and Stripling were not decided until 2016. The

Defendant, relying on State v. Cecil, 409 S.W.3d 599 (Tenn. 2013), submits that the legal

principles announced in Bonds and Stripling should apply to him because his case was in

the “appellate pipeline” at the time these decisions were issued.

In Cecil, our supreme court held that the absence of the jury instruction required

by State v. White, 362 S.W.3d 559 (Tenn. 2012),6 when warranted, results in

constitutional error. Cecil, 409 S.W.3d at 610 (citing State v. Faulkner, 154 S.W.3d 48,

60 (Tenn. 2005)) (noting that the failure to properly instruct the jury pursuant to White is

a “failure to instruct the jury on a material element of an offense,” resulting in

constitutional error of due process dimensions). Moreover, the Cecil court made it clear

that the requirement of a White jury instruction applied to cases then in the “appellate

pipeline[,]” regardless of whether the issue was raised in the trial court. Cecil, 409

S.W.3d at 608 (citing Lease v. Tipton, 722 S.W.2d 379, 379 (Tenn. 1986) (per curiam)

(adopting the “pipeline approach,” which applies a new legal principle “to the litigants at

bar, to all actions pending on the date the decision announcing the change becomes

final[,] and to all causes of action arising thereafter”)).

We agree with the Defendant that, pursuant to the “pipeline approach,” the legal

principles outlined in Bonds and Stripling are applicable to his convictions imposed

pursuant Tennessee Code Annotated section 40-35-121. Moreover, if neither of these

6

In State v. White, our supreme court held that the question of whether a kidnapping was “essentially

incidental” to an accompanying offense is a question of fact for a properly instructed jury. 362 S.W.3d

559, 577 (Tenn. 2012). This finding by a jury, along with a reviewing court‟s “assess[ment] [of] the

sufficiency of the convicting evidence,” is sufficient to protect the defendant‟s due process rights. Id. at

577-78. To facilitate this determination, the White court delineated a specific jury instruction. Id. at 580-

81 (footnote omitted).

24

cases existed, we fail to see how we would be constrained to uphold a statute that was “so

obviously unconstitutional on its face as to obviate the necessity for any discussion.”

Lawrence, 655 S.W.2d at 929 (citations omitted); Davis, 2014 WL 1775529, at *4-9. As

discussed above, the plain error doctrine provides this court with an avenue to grant relief

in such a situation.

In accordance with Bonds and Stripling, without a requirement that the offense be

related to the Defendant‟s criminal gang membership, we fail to comprehend how

Tennessee Code Annotated section 40-35-121(b) is reasonably related to the goal of

deterring criminal gang activity. The statute unconstitutionally abridges substantive due

process, thus violating a clear and unequivocal rule of law. We are also convinced that

all of the other factors for plain error relief are present—the record clearly establishes

what occurred in the trial court; a substantial right of the Defendant has been adversely

affected; the Defendant did not waive the issue for tactical reasons; and consideration of

the error is necessary to do substantial justice. See Smith, 24 S.W.3d at 282.

Accordingly, the Defendant‟s convictions for violating the gang enhancement statute in

Counts 5 and 6 are reversed and dismissed.

III. Sentencing

On appeal, the Defendant argues that the trial court imposed an excessive sentence

that was contrary to law. The State responds that the effective sixteen-year sentence

imposed by the trial court was consistent with the purposes and principles of the

Sentencing Act and that the Defendant has failed to overcome the presumption of

reasonableness afforded that decision or show that the trial court abused its discretion.

Before a trial court imposes a sentence upon a convicted criminal defendant, it

must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to sentencing

alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)

evidence and information offered by the parties on the enhancement and mitigating

factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any

statistical information provided by the Administrative Office of the Courts as to

Tennessee sentencing practices for similar offenses; and (g) any statement the defendant

wishes to make in the defendant‟s own behalf about sentencing. Tenn. Code Ann. § 40-

35-210(b). 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). Moreover, appellate courts may not disturb the sentence even if

we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.

2007). 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).

25

In accordance with the broad discretion now afforded a trial court‟s sentencing

decision, “misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as amended

in 2005.” Bise, 380 S.W.3d at 706. 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. Those purposes and principles include “the imposition of a

sentence justly deserved in relation to the seriousness of the offense,” Tennessee Code

Annotated section 40-35-102(1), a punishment sufficient “to prevent crime and promote

respect for the law,” Tennessee Code Annotated section 40-35-102(3), and consideration

of a defendant‟s “potential or lack of potential for . . . rehabilitation,” Tennessee Code

Annotated section 40-35-103(5). Carter, 254 S.W.3d at 344.

Furthermore, our supreme court has held that “the abuse of discretion standard,

accompanied by a presumption of reasonableness, applies to consecutive sentencing

determinations.” State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). A trial court may

order multiple offenses to be served consecutively if it finds by a preponderance of the

evidence that a defendant fits into at least one of the seven categories in section 40-35-

115(b). Tenn. Code Ann. § 40-35-115(b). This court must give “deference to the trial

court‟s exercise of its discretionary authority to impose consecutive sentences if it has

provided reasons on the record establishing at least one of the seven grounds listed in

Tennessee Code Annotated Section 40-35-115(b).” Pollard, 432 S.W.3d at 861.

Moreover, “[a]ny one of these grounds is a sufficient basis for the imposition of

consecutive sentences.” Id. at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn.

2013)). “So long as a trial court properly articulates reasons for ordering consecutive

sentences, thereby providing a basis for meaningful appellate review, the sentences will

be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing

Tenn. R. Crim. P. 32(c)(1); Bise, 380 S.W.3d at 705). When imposing consecutive

sentences, the court must still consider the general sentencing principles that each

sentence imposed shall be “justly deserved in relation to the seriousness of the offense,”

“no greater than that deserved for the offense committed,” and “the least severe measure

necessary to achieve the purposes for which the sentence is imposed.” Tenn. Code Ann.

§§ 40-35-102(1), -103(2), -103(4); State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

In asserting that his sixteen-year sentence is excessive, the Defendant does not

contest the trial court‟s application of any one of the enhancement factors, and the record

abundantly supports the application of the factors (1) and (8). Instead, in his minimal

argument, the Defendant claims that the trial court “erred in sentencing him based on the

mitigating factors submitted in this case” because both mitigating factors (1) and (9)

should have been applied to him. However, we question whether use of mitigating factor

(1) was appropriate here. There was testimony that the Defendant was involved in a

criminal gang with its “predominant function” being narcotics trafficking and that a

multitude of other criminal activities, some violent in nature, accompanied this

26

enterprise; thus, it is unlikely that the Defendant‟s criminal conduct neither caused nor

threatened serious bodily injury, making mitigating factor (1) inapplicable under these

facts. Conversely, we agree with the Defendant that the evidence supports application of

mitigating factor (9) because he did provide assistance to the authorities in uncovering

offenses committed by other persons. Inv. Greer testified at the sentencing hearing that

the Defendant gave details in two other cases, which led to the seizure of drugs, vehicles,

currency, and weapons. According to Inv. Greer, the Defendant placed himself in grave

danger by furnishing this information. We make these notations for the trial court to

consider upon resentencing. Because Tennessee Code Annotated section 40-35-121(b)

violates substantive due process for lack of a nexus between the underlying offenses and

the Defendant‟s gang affiliation, we reverse the judgments of the trial court in Counts 1

and 2 and vacate the enhanced sentences contained therein. The case is remand for

modification of those judgments to Class C felonies and for a new sentencing hearing.7

See, e.g., Stripling, 2016 WL 3462134, at *10; Bonds, 502 S.W.3d at 167 (both cases

remanding for resentencing).

CONCLUSION

In accordance with the foregoing, we conclude that there was no error during the

guilt phase of the trial on the Defendant‟s underlying convictions for attempted

possession of 0.5 grams or more of cocaine with intent to sell and attempted possession

of 0.5 grams or more of cocaine with intent to deliver. However, because Tennessee

Code Annotated section 40-35-121(b) violates the Due Process Clause of the Fourteenth

Amendment, the criminal gang enhancements in Counts 5 and 6 are vacated, and those

judgments are reversed and dismissed. The judgments in Counts 1 and 2 are reversed and

remanded for modification to reflect convictions for Class C felonies and to remove

reference to the gang enhancement statute. The enhanced sentences in Counts 1 and 2 are

vacated, and the case is remanded to the trial court for resentencing on those counts and

judgment forms reflecting proper merger. The Defendant does not challenge his

misdemeanor convictions or sentences in Counts 3 and 4, and those judgments are

affirmed.

_________________________________

D. KELLY THOMAS, JR., JUDGE

7

We also note that separate judgments were not entered in Counts 1 and 2 for attempted possession of 0.5 grams or

more of cocaine with intent to sell and for attempted possession of 0.5 grams or more of cocaine with intent to

deliver. Upon remand, after resentencing, the trial court shall enter separate judgment forms for these convictions in

accordance with the Tennessee Supreme Court‟s recent decision in State v. Berry, 503 S.W.3d 360, 364-65 (Tenn.

2015).

27