State of Tennessee v. Michael Dewayne Hall

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 26, 2016

STATE OF TENNESSEE v. MICHAEL DEWAYNE HALL

Appeal from the Circuit Court for Blount County

Nos. C0021744, C0021745 Tammy M. Harrington, Judge

No. E2015-02173-CCA-R3-CD – Filed May 4, 2017

The Defendant, Michael Dewayne Hall, was convicted by a Blount County Jury of sale or

delivery of cocaine under 0.5 grams in the drug-free zone of a public park, a Class C

felony, and sale or delivery of cocaine over 0.5 grams in the drug-free zone of a public

park, a Class B felony. As a career offender, he received an effective sentence of thirty

years in the Tennessee Department of Correction. On appeal, the Defendant claims: (1)

the trial court improperly admitted a map into evidence at trial; (2) the trial court

improperly denied his motion to dismiss the indictment; (3) the evidence is insufficient to

sustain his convictions; and (4) the trial court improperly acted as thirteenth juror to

approve the jury’s verdict. We conclude that the trial court properly admitted the map,

denied the motion to dismiss, and acted as thirteenth juror, and that the evidence is

sufficient to sustain the Defendant’s convictions. However, after a plain error review, the

duplicitous nature of the Defendant’s convictions for “sale or delivery” of cocaine

constitutes reversible error and violates the Defendant’s fundamental and substantial right

to a unanimous jury verdict. Accordingly, we reverse, vacate, and dismiss the

Defendant’s convictions.

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

Vacated and Dismissed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

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

Ashley Morris Bentley, Maryville, Tennessee, for the Defendant-Appellant, Michael

Dewayne Hall.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Senior

Counsel; Michael W. Flynn, District Attorney General; and Matthew L. Dunn, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

This appeal stems from two controlled drug purchases completed by an informant

working for the Fifth Judicial Drug Task Force of the Blount County Sheriff’s Office.

The Defendant was indicted by the Blount County Grand Jury for his involvement in both

purchases, which occurred within a drug-free zone. A jury trial began on May 15, 2014,

at which time the following evidence was adduced.

Trial. Officer Rusty Aycocke testified that a confidential informant (“CI”) was

used to conduct two controlled drug purchases from the Defendant on September 10,

2012, and December 19, 2012. Prior to each purchase, Officer Aycocke searched the CI

and his vehicle, provided him with marked money to purchase drugs, and equipped him

with a recording device. Officer Aycocke followed the CI and observed him enter a

house on 270 East Lincoln. After the CI arrived at the house, the Defendant left and then

returned a short time later. Officer Aycocke believed that the Defendant left the house

for his supply of crack cocaine, and then returned to provide the drugs to the CI. After

the purchase was completed, the CI met Officer Aycocke at a prearranged location and

gave him the crack cocaine that he purchased from the Defendant. Officer Aycocke

testified that the CI obtained 0.84 grams of crack cocaine from the Defendant during the

September purchase, 0.31 grams of crack cocaine during the December purchase, and

that both samples tested positive for cocaine during a field test.

Officer Aycocke later viewed two videos of the CI during each controlled

purchase, which were admitted as exhibits at trial. Officer Aycocke also identified

multiple still photographs taken from the videos, including: a photograph of the

Defendant’s face, a photograph of the Defendant’s reaching hand, a photograph of the

Defendant’s and the CI’s hands together, a photograph of a hand holding a crack cocaine

rock, and a photograph showing a crack cocaine rock on top of a dresser in the

Defendant’s bedroom.

On cross-examination, Officer Aycocke stated that he had worked with this

particular CI on over thirty controlled drug purchases and that the CI received $100 for

his participation in each purchase. Officer Aycocke testified that the Defendant was

arrested in December 2012, following the second controlled drug purchase, and that none

of the marked bills or crack cocaine were on the Defendant’s person at that time. Officer

Aycocke acknowledged that he was unable to follow the Defendant when he left the

residence during both the September and December purchases to determine where he

went to obtain the drugs.

The CI testified that he had worked with the Fifth Judicial Drug Task Force for

approximately two years and had known the Defendant for approximately three years.

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For each drug purchase, he initiated contact with the Defendant and went to 270 East

Lincoln, where the Defendant resided, to conduct the exchange. The CI testified that the

Defendant normally did not have the drugs at home, and that after receiving the money,

he would leave the house to get the drugs. The CI admitted that he had a drug problem,

that he had previously smoked crack cocaine with the Defendant, and that he had visited

270 East Lincoln as many as “six, eight times in a night.”

Ray Boswell, a Geographic Information Systems Manager for the City of

Maryville, prepared a map of 270 East Lincoln, the Defendant’s house, where the

controlled drug purchases occurred. The map showed that the house was within 1,000

feet of two nearby parks, the Richard Williams Park and the Oldfield Community Park.1

Jacob White, a forensic scientist for the Tennessee Bureau of Investigation, testified that

the rock-like substances recovered from the informant after both controlled drug

purchases tested positive for cocaine.

The State rested, and the Defendant did not offer any proof. The jury returned a

guilty verdict on all counts, and the trial court affirmed the verdict as the thirteenth juror

and set the case for a sentencing hearing. After sentencing, the Defendant filed a motion

for a new trial. The trial court denied the motion, and the Defendant filed a timely notice

of appeal.

On November 3, 2016, after the parties submitted their initial briefs, we directed

the circuit court clerk to supplement the record and instructed the parties to file

supplemental briefs, explaining the effect of State v. Angela E. Isabell, No. M2002-

00584-CCA-R3-CD, 2003 WL 21486982 (Tenn. Crim. App. June 27, 2003), and State v.

Lindsey, 208 S.W.3d 432 (Tenn. Crim. App. 2006) on the present appeal. See Tenn. R.

App. P. 24(e) (“If necessary, the appellate or trial court my direct that a supplemental

record be certified and transmitted.”); see Tenn. R. App. P. 36(b) (allowing appellate

courts to raise issues sua sponte affecting the substantial rights of a party); State v.

Caudle, 388 S.W.3d 273, 279 (Tenn. 2012) (stating that an order of supplementation may

be the proper remedy for any deficiencies in the record). The supplemental record was

filed on December 22, 2016, and supplemental briefing was completed on March 20,

2017.

ANALYSIS

The Defendant challenges the introduction of specific evidence at trial, the denial

of his motion to dismiss the indictment, the sufficiency of the evidence, and the trial

1

The parties and witnesses also occasionally referred to the Oldfield Community Park as the

“Oldfield Mini Park” or the “Oldfield Public Park.” To avoid confusion, we refer to this park only as the

“Oldfield Community Park.”

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court’s role as thirteenth juror. However, before addressing these issues, we are

constrained to address what we perceive to be flaws contained in the indictments, jury

instructions, and verdict forms as plain error. The duplicitous nature of the Defendant’s

convictions for “sale or delivery” of controlled substances is a constitutional error

affecting the Defendant’s substantial right to a unanimous jury verdict and reviewable

under plain error analysis. For the reasons outlined below, we must reverse, vacate, and

dismiss the Defendant’s convictions.

I. Plain Error. 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 a party 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 order for this court to find plain error, “(a) the record must clearly establish

what occurred in the trial court; (b) a clear and unequivocal rule of law must have been

breached; (c) a substantial right of the accused must have 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)). “[T]he

presence of all five factors must be established by the record before this Court will

recognize the existence of plain error, and complete consideration of all the factors is not

necessary when it is clear from the record that at least one of the factors cannot be

established.” Id.

Here, it is clearly established in the record that the Defendant was erroneously

charged with two separate and distinct offenses in the same indictment. The Defendant

was indicted for two counts of sale or delivery of cocaine, one count under 0.5 grams and

one count more than 0.5 grams. The trial court instructed the jury that, in order to find

the Defendant guilty, the jury must find beyond a reasonable doubt “that the [D]efendant

delivered or sold a Schedule II controlled substance.” Moreover, the verdict forms reflect

that the jury found the Defendant “[g]uilty of [s]ale or [d]elivery” and the State argued

during closing arguments that the Defendant “delivered or sold” the controlled substance.

We conclude that the record adequately establishes what occurred at trial for purposes of

plain error review.

Additionally, the rule of law which governs this issue clearly and unambiguously

supports a finding that the Defendant’s substantial right to a unanimous jury verdict was

adversely affected. See State v. Brown, 823 S.W.2d 576, 585 (Tenn. Crim. App. 1991)

(“[T]he unanimity requirement is a fundamental right and not contingent upon a request

being made.”). This court held in State v. Angela E. Isabell that delivery and sale of a

controlled substance are separate offenses and should not be charged in the same count of

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an indictment. 2003 WL 21486982, at *3-4. In Angela E. Isabell, the defendant was

charged with “sale or delivery” of a controlled substance. Id. at *3. In reversing the

convictions, this court explained:

The sentencing commission comments following Tennessee Code

Annotated section 39-17-417 explain that “[t]he commission wished to

make it clear that each of these acts [, i.e. the manufacture of a controlled

substance, the delivery of a controlled substance, and the sale of a

controlled substance,] was a separate offense.” See T.C.A. § 39-17-

417(a)(1)-(3). Generally, it is impermissible to charge two distinct offenses

in a single count [of an] indictment. See State v. Jefferson, 529 S.W.2d

674, 678 (Tenn. 1975). In other words, “all crimes arising from the same

incident that are not lesser included offenses of another crime charged in

the indictment must be charged in separate counts.” State v. Gilliam, 901

S.W.2d 385, 389 (Tenn. Crim. App. 1995). Accordingly, if the indictments

underlying the offenses had charged the offenses in separate alternative

counts; e.g., count one the sale of crack cocaine, count two the delivery of

crack cocaine; the indictment would not be faulty. We agree with the

appellant that the indictments impermissibly charged two separate offenses

within a single count.

Moreover, in Tennessee a criminal accused enjoys a constitutional

right to a jury trial when she faces confinement or a fine of more than fifty

dollars. See State v. Lemacks, 996 S.W.2d 166, 169 (Tenn. 1999). “This

constitutional right necessarily includes the right to a unanimous jury

verdict before a conviction of a criminal offense may be imposed.” Id. at

169-70. Notably,

[q]uestions regarding jury unanimity generally arise in cases

where the prosecution presents evidence to the jury that tends

to show more than one criminal offense, but the underlying

indictment is not specific as to the offense for which the

accused is being tried.

Id. at 170. Importantly, the right to unanimity protects against the

possibility of a “patchwork” verdict. See State v. Forbes, 918 S.W.2d 431,

446 (Tenn. Crim. App. 1995). In other words, the appellant is entitled to be

convicted of the sale of a controlled substance or the delivery of a

controlled substance; she cannot be convicted of the sale or delivery of a

controlled substance based upon the same set of facts under a single count

of an indictment.

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Angela E. Isabell, 2003 WL 21486982, at *3; See 9 David L. Raybin, Tennessee Practice,

Criminal Practice and Procedure § 16:16 (2008). This court went on to note in Angela E.

Isabell that a verdict form which reflects that the jury found a defendant guilty of “sale or

delivery” is “unclear as to what offense the jury unanimously convicted the appellant”

and, thus, “[t]he jury’s true decision is a matter of speculation . . . [a]ccordingly, we must

reverse the appellant’s conviction due to the lack of unanimity in the verdict.” Id. at *4

(internal citations omitted).

The record reflects that neither party nor the trial court raised this issue at any time

and, therefore, the Defendant did not waive the issue for a tactical reason. See Id. at *4

(noting that the appellant did not raise the unanimity issue at trial but unanimity is a

“fundamental right . . . not contingent upon a request being made.”); but see State v.

Lindsey, 208 S.W.3d 432 (Tenn. Crim. App. 2006) (finding that, although the indictment

erroneously charged that the defendant did “sell and, or deliver” cocaine, the defendant’s

motion to dismiss the indictment was waived because defense counsel made a tactical

decision not to raise the issue until after jeopardy had attached). Therefore, the

consideration of this issue is necessary to prevent a miscarriage of justice. See Adkisson,

899 S.W.2d at 643.

Moreover, the State has failed to distinguish Angela E. Isabell from the facts of

this case. The State acknowledges this court’s holding in Angela E. Isabell and that an

indictment which charges “sale or delivery” is duplicitious, but argues that plain error

relief is not warranted here “because the proof of delivery on both counts is

overwhelming, and no reasonable juror could have found sale without also finding

delivery.” The State also attempts to distinguish Angela E. Isabell because it conceded

error in that case. In our view, the facts in Angela E. Isabell are identical to the case at

bar. Therefore, we are unpersuaded by the State’s argument.

Based on the above, we conclude that plain error exists, which requires the

Defendant’s convictions to be reversed, vacated, and dismissed. Nevertheless, in light of

potential future appellate review, we will address the Defendant’s remaining issues raised

on appeal as follows.

II. Introduction of Map at Trial. The Defendant contends that he should be

granted a new trial because the trial court erred in admitting the State’s map into evidence

and because he was prejudiced by this error. Specifically, the Defendant argues that he

was prejudiced because “the defense had never been provided the objectionable

discovery and . . . this same discovery was used in the [S]tate’s case-in-chief to secure the

[d]rug-[f]ree [z]one classification.” In response, the State argues that the Defendant has

not shown that the admission of the map prejudiced his defense.

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Tenn. R. Crim. P. 16(a)(1)(F) states the following regarding the disclosure of

evidence by the State:

Upon a defendant’s request, the state shall permit the defendant to inspect

and copy or photograph books, papers, documents, photographs, tangible

objects, buildings, or places, or copies or portions thereof, if the item is

within the state’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case-in-chief at trial; or

(iii) the item was obtained from or belongs to the defendant.

Rule 16 also states that in the event that a party fails to comply with a discovery

request, the trial court may “order that party to permit the discovery or inspection,” “grant

a continuance,” “prohibit the party from introducing the undisclosed evidence,” or “enter

such other order as it deems just under the circumstances.” Tenn. R. Crim. P.

16(d)(2)(A)-(D). “A trial court has wide discretion in fashioning a remedy for

non-compliance with a discovery order, and the sanction should fit the circumstances of

the case.” State v. Downey, 259 S.W.3d 723, 737 (Tenn. 2008) (citing State v. Collins,

35 S.W.3d 582, 585 (Tenn. Crim. App. 2000)). The defense has the burden of showing

“the degree to which the impediments to discovery hindered trial preparation and defense

at trial.” State v. Brown, 836 S.W.2d 530, 548 (Tenn. 1992). “Generally speaking, the

exclusion of the evidence is a drastic remedy and should not be implemented unless there

is no other reasonable alternative.” State v. Smith, 926 S.W.2d 267, 270 (Tenn. Crim.

App. 1995) (citing State v. House, 743 S.W.2d 141, 147 (Tenn. 1987)). Additionally,

this court has previously held that “evidence should not be excluded except when it is

shown that a party is actually prejudiced by the failure to comply with the discovery

order and that the prejudice cannot be otherwise eradicated.” State v. Garland, 617

S.W.2d 176, 185 (Tenn. Crim. App. 1981).

The Defendant was convicted of violating Tennessee Code Annotated section 39-

17-417 for the knowing sale or delivery of a controlled substance. The Drug-Free Zone

Act provides in pertinent part that “[a] violation of [section] 39-17-417 . . . that occurs . . .

within one thousand feet . . . of the real property that comprises a . . . recreational center

or park shall be punished one (1) classification higher than is provided in [section] 39-17-

417(b)-(i) for such violation.” See T.C.A. § 39-17-432(b)(1). A drug-free zone violation

is not a separate offense and is not an essential element of the drug offense; rather, the

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violation allows for increased punishment for a defendant’s conviction. State v. Tate,

No. E2014-01191-CCA-R3-CD, 2015 WL 2400718, *6 (Tenn. Crim. App. May 20,

2015) (holding that a single sale of cocaine that occurred in two overlapping drug-free

zones resulted in a single conviction, not two separate convictions). “Both the caption of

the [Drug-Free Zone] Act and the policy statement set forth in the subsection (a) of the

Act reflect the purpose of the legislature, not to create a new offense, but rather to create

[drug-free zones] by enhancing penalties for violations of T.C.A. § 39-17-417 occurring

inside the zones.” State v. Smith, 48 S.W.3d 159, 168 (Tenn. Crim. App. 2000).

Here, the Defendant made a discovery request to the State and, as part of the

State’s response to the discovery request, the Defendant received a map showing one

park, the Richard Williams Park, located within 1,000 feet of the location of the drug

exchange. At trial, the State introduced a new map which was not produced during

discovery. The new map showed two parks, the Richard Williams Park and the Oldfield

Community Park, both located within 1,000 feet of the exchange.

After considering argument from counsel and examining both maps, the trial court

admitted the State’s new map into evidence. The trial court found that the Defendant was

on notice of the second park’s existence because the park was discussed during the

preliminary hearing. The trial court also noted that the indictments did not specify which

park was being qualified as a drug-free zone, and that the Defendant did not request a bill

of particulars requiring the State to specify which park was being used to determine the

drug-free zone for each offense.

The Defendant argues that “the difference in the maps was detrimental to [his]

defense because the parks were what was [sic] needed to establish the [d]rug-[f]ree

[z]one requirement of [the Defendant’s] subsequent sentencing.” He further argues that

he “had prepared the defense based on the only park on the only map provided to [him]

as a part of discovery” and that, as a result, “[his] trial preparation and trial defense had

been hindered.” However, the Defendant failed to present any evidence, testimony, or

authority challenging the drug-free zone classification of either park at trial or sentencing.

Moreover, the plain language of the Drug-Free Zone Act indicates only one park is

necessary to establish a “drug-free zone.” Because the Defendant has failed to show the

degree that the delayed disclosure of this evidence hindered his defense or any resulting

prejudice, he is not entitled to relief. See Brown, 836 S.W.2d at 548.

III. Denial of Motion to Dismiss. The Defendant also contends that the trial

court erred by denying his motion to dismiss the indictments. The Defendant does not

challenge specific findings of the trial court; however, he claims that his sentences are

unconstitutional and grossly disproportionate because they subject him to “cruel and

unusual punishment” under the Eighth Amendment of the United States Constitution and

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Article I, Section 16 of the Tennessee Constitution. The Defendant also argues that the

shorter sentences he received for his prior felony convictions should be considered as part

of the proportionality analysis. The State argues that the trial court did not err by denying

the Defendant’s motion to dismiss the indictments because his prior sentences do not

impact the proportionality review and because the Defendant’s current sentences do not

raise an inference of gross disproportionality.

To be clear, our law requires a career offender to serve the maximum sentence for

the offense, which in this case was a sentence of thirty years for the Class B felony and a

sentence of fifteen years for the Class C felony. See T.C.A. §§ 40-35-108(c), 40-35-

112(c)(2), 40-35-112(c)(3). Accordingly, the trial court did not err by sentencing the

Defendant to the mandatory maximum sentence.

The Defendant acknowledges the mandatory maximum sentence required by law

to be imposed in this case and does not challenge his status as a career offender. He

argues instead that his sentence is unconstitutional in comparison to previous sentences

he received for prior felony convictions. He asserts that “going from Range I, split

confinement sentences to being required to serve 30 years at 100% is grossly

disproportionate.”

As an initial matter, the record does not contain copies of the transcripts from the

sentencing hearing or the motion for new trial hearing, both of which are necessary for

this court to conduct meaningful appellate review of this issue. It is the duty of the

Defendant to prepare a record which conveys a fair, accurate, and complete account of

what transcribed in the trial court with respect to the issues which form the basis of the

appeal. Tenn. R. App. P. 24(b); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App.

1987). In the absence of an adequate record on appeal, this court must presume that the

trial court’s rulings were supported by sufficient evidence. Vermilye v. State, 584

S.W.2d 226, 230 (Tenn. Crim. App. 1979). Based on our review of the limited record

before us, however, the Defendant is not entitled to relief. In his brief, the Defendant

makes bare assertions that his sentences “have not been graduated and proportionate” and

were “grossly disproportionate . . . to the crime.” Significantly, he does not avail himself

of the twenty-four-hour merger rule, see T.C.A § 40-35-108(b)(4), or provide any other

basis for determining that his thirty-year sentence was disproportionate to his offense.

We have previously rejected an Eighth Amendment “cruel and unusual punishment”

sentencing challenge in a factually similar case and noted that “the severity of the

appellant’s punishment is the direct result not merely of an isolated instance of

possession inside a [drug-free zone] . . . but of a pattern of drug dealing evidenced by [the

appellant’s] seven prior convictions of felony drug offenses and his consequent status as

a career offender.” Smith, 48 S.W.3d at 172 (holding that an effective sentence of sixty

years of incarceration in accordance with the Drug-Free Zone Act and the defendant’s

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career offender status for possession of 0.5 grams or more of cocaine with intent to sell

was not cruel and unusual punishment). Moreover, this court upheld the constitutionality

of increased sentences for career offenders, despite disparities between their current and

previous sentences. See State v. Artez L. Moreis, No. W2002-00474-CCA-R3-CD, 2003

WL 1860537, at *10-11 (Tenn. Crim. App. Apr. 2, 2003) (holding that a career

offender’s fifteen-year sentence was not cruel and unusual punishment when his prior

sentences ranged from three to eight years). Based on his uncontested status as a career

offender, the Defendant was properly sentenced to the mandatory maximum sentence.

His sentence does not constitute cruel and unusual punishment, and he is not entitled to

relief.

IV. Sufficiency of the Evidence. The Defendant next challenges the sufficiency

of the evidence supporting his convictions for the sale or delivery of a controlled

substance. He contests the sufficiency of the video evidence depicting the exchange, and

claims that “[t]he only evidence that ties the Defendant to the crack cocaine is the

confidential informant.” The State responds that a rational juror could conclude that the

Defendant provided cocaine to the CI in a drug-free zone, and that the jury “did not

exceed the scope of its fact finder ability by finding that [the] [i]nformant was a credible

witness.”

When considering the sufficiency of the evidence on appeal, the State is entitled to

the strongest legitimate view of the evidence and all reasonable inferences which may be

drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing

State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the

sufficiency of the evidence, the standard of review applied by this court is “whether, after

reviewing 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). Similarly, Rule 13(e) of the Tennessee

Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by

trial court or jury shall be set aside if the evidence is insufficient to support the finding by

the trier of fact beyond a reasonable doubt.” “Because a verdict of guilty removes the

presumption of innocence and raises a presumption of guilty, the criminal defendant

bears the burden on appeal of showing that the evidence was legally insufficient to

sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

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

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,

691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). 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)

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(quoting Hanson, 279 S.W.3d at 275). 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)). When

considering the sufficiency of the evidence, this court shall not substitute its inferences

for those drawn by the trier of fact. Id.

The Defendant was convicted of sale or delivery of cocaine within 1,000 feet of a

park on two separate occasions. In order to sustain the convictions for these offenses, the

State was required to prove beyond a reasonable doubt that the Defendant knowingly sold

or delivered cocaine. See T.C.A. § 39-17-417(a)(2)-(3). A violation of subsection (a)

with respect to 0.5 grams or more of cocaine is a Class B felony, and a violation of

subsection (a) with respect to 0.5 grams or less of cocaine is a Class C felony. Id. §§ 39-

17-417(c)(1), 39-17-417(c)(2)(A). In addition, the Drug-Free Zone Act states that a

violation of T.C.A. § 39-17-417 “that occurs on the grounds or facilities of any school or

within one thousand feet (1,000) of the real property that comprises a public or private

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

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

than is provided in § 39-17-417(b)-(i) for such violation.” Id. § 39-17-432(b)(1). It is

significant to note that the heightened classification, however, did not subject the

Defendant to additional incarceration. Id. § 39-17-432(b)(3) (stating that defendants are

only subject to additional fines for drug sales occurring within 1,000 feet of parks); See

State v. Ronald Turner, E2016-00790-CCA-R3-CD, 2017 WL 1379999, at *1-10 (Tenn.

Crim. App. Apr. 13, 2017) (As of the date this opinion was filed, no permission to appeal

to the Tennessee Supreme Court has been filed).

Viewed in the light most favorable to the State, we conclude that there was

sufficient evidence to support the Defendant’s convictions. The proof established that

Officer Aycocke thoroughly searched the CI before both controlled drug purchases.

Officer Aycocke followed the CI to 270 East Lincoln and observed him enter the

Defendant’s house. When the CI left the Defendant’s house, Officer Aycocke again

followed the CI and continuously observed him until he arrived at a prearranged location.

After each exchange, the CI promptly turned over drugs to Officer Aycocke, which were

later determined to be crack cocaine. Both Officer Aycocke and the CI testified about

each exchange and the procedures that were followed. Video recordings and still images

from both purchases were admitted into evidence and shown to the jury. The jury also

heard testimony that both controlled drug purchases occurred within 1,000 feet of two

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public parks.

In challenging the sufficiency of the convicting evidence, the Defendant is

essentially attacking the credibility of the CI and the weight of the video evidence

presented at trial. However, the jury determines the weight and credibility to be given to

the testimony of witnesses and reconciles all conflicts in the evidence. Bollin v. State,

405 S.W.2d 768, 771 (Tenn. 1966). Moreover, we note that “our duty on appeal of a

conviction is not to contemplate all plausible inferences in the Defendant’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). Based on the evidence, a rational juror could conclude

beyond a reasonable doubt that the Defendant knowingly sold or delivered cocaine within

a drug-free zone. Accordingly, the Defendant is not entitled to relief.

V. Thirteenth Juror. The Defendant similarly argues that the trial court failed to

properly weigh the evidence in its role as the thirteenth juror. The State disagrees.

Tennessee Rule of Criminal Procedure 33(d) states that “the trial court may grant a

new trial following a verdict of guilty if it disagrees with the jury about the weight of the

evidence.” See State v. Carter, 896 S.W.2d 119, 122 (Tenn. 1995) (holding that the trial

court has a duty to serve as the thirteenth juror). Only if the record contains statements

by the trial judge indicating disagreement with the jury’s verdict or evidencing the trial

judge’s refusal to act as the thirteenth juror may an appellate court reverse the trial

court’s judgment. Id. Otherwise, appellate review is limited to sufficiency of the

evidence pursuant to Rule 13(e) of the Tennessee Rules of Appellate Procedure. State v.

Burlison, 868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). If the reviewing court finds

that the trial judge has failed to fulfill his or her role as thirteenth juror, the reviewing

court must grant a new trial. State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995).

The record shows that the trial court agreed with the jury’s verdict as the thirteenth

juror. Therefore, this issue is not subject to appellate review.

CONCLUSION

After a thorough review of the record, we reverse and vacate the Defendant’s

convictions and remand to the trial court for dismissal of the charges.

_________________________________

CAMILLE R. McMULLEN, JUDGE

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