State of Tennessee v. Christopher D. Linsey

01/24/2018

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 17, 2018

STATE OF TENNESSEE v. CHRISTOPHER D. LINSEY

Appeal from the Circuit Court for Montgomery County

No. CC15-CR-544 William R. Goodman, III, Judge

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No. M2017-00059-CCA-R3-CD

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In May 2015, the Montgomery County Grand Jury indicted the Defendant, Christopher

D. Linsey, for possession of 0.5 grams or more of cocaine with the intent to sell or

deliver, simple possession of marijuana, possession of drug paraphernalia, and resisting

arrest. Following a jury trial, the Defendant was convicted as charged, and the trial court

sentenced the Defendant, as a Range III persistent offender, to a total effective sentence

of twenty-three years. On appeal, he contends that the evidence presented at trial was

insufficient to support his conviction for possession of 0.5 grams or more of cocaine with

the intent to sell or deliver, and he challenges his sentence as excessive. Upon review,

we affirm the judgments of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and TIMOTHY L. EASTER, J., joined.

Gregory D. Smith (on appeal); and Melissa King, Clarksville, Tennessee (at trial), for the

appellant, Christopher D. Linsey.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior

Counsel; John W. Carney, District Attorney General; and Dan Brollier, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

On February 24, 2015, Officer Jack Williams of the Clarksville Police Department

(CPD) responded to a call of a “possible trespasser” at a residence on Wesley Drive in

Clarksville. Upon arrival, Officer Williams met with the caller, David Reed, III, and

walked around Mr. Reed’s property looking for evidence of the trespasser. While

walking through the back yard of Mr. Reed’s residence, Officer Williams noticed the

smell of burnt marijuana. Although Mr. Reed said that he did not smell anything, other

officers on the scene stated that they too smelled marijuana. Officer Williams walked

toward the house next door, and the smell of burnt marijuana became stronger. Finding

no evidence of a trespasser, the officers left Mr. Reed’s residence.

Later that evening, Officer Williams and two other officers conducted a knock and

talk at the residence next door to Mr. Reed’s. As he approached the front door, Officer

Williams again smelled the odor of marijuana and noticed someone looking out the front

window at him. At that time, the owner of the residence, Tiffany Holliday, came out of

the house and quickly closed the front door behind her. When Ms. Holliday asked what

the officers were doing there, Officer Williams asked her about the smell of marijuana

and asked for consent to search the house, which Ms. Holliday denied. Officer Williams

asked, “Who else [is] in the residence?” Ms. Holliday stated that her brother, Timothy

Holliday, and her five children were inside. Officer Williams asked if he could step

inside the house to speak with her, but Ms. Holliday stated that “she could bring

everybody outside” and told the officer that her friend “Crook” was also in the residence.

Officer Williams again asked to step inside to talk because the weather was “below

freezing” and he did not want her to bring her children outside in the cold weather, and

Ms. Holliday allowed the officers into the residence. Once inside, Officer Williams

could smell the odor of burnt marijuana and asked Ms. Holliday to gather the occupants

of the residence into the living room. The Defendant and four other men came out of a

“bonus room,” which was a converted garage at the back of the residence. Officer

Williams obtained consent from Ms. Holliday for a “protective sweep” of the residence to

ensure that no one else was inside the home. He then contacted the CPD’s “on-call drug

agent,” Agent Robert DelGiorno, and advised him of the situation. Agent DelGiorno said

that he would apply for a search warrant and requested that Officer Williams wait with

the occupants of the residence in the living room.

Based on his discussions with Officer Williams, Agent DelGiorno prepared an

application for a search warrant, which was granted by a judge. The search warrant

covered not only the residence but also included a search of the individuals inside the

residence, including the Defendant. Agent DelGiorno and three other drug agents—Will

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Evans, Griffie Briggs, and Lon Chaney—arrived at Ms. Holliday’s residence with a

search warrant. Agent DelGiorno initially spoke to Ms. Holliday and explained to her

that he had a search warrant. He then instructed the other agents to search the residence.

While searching the bonus room, the agents looked under the chairs and couches in the

room. Agent Evans found a small baggie containing a “white powdery substance,” which

had been “stuffed” in the side of a couch. The agents also found a “marijuana grinder,” a

digital scale, and five or six marijuana “roaches.”1 In the back bedroom, a second digital

scale was recovered. Agent DelGiorno took photographs of the contraband, and he

conducted a field test of the roaches, which indicated that the roaches contained

marijuana. Agent DelGiorno stated that the baggies found in the jacket worn by the

Defendant were commonly used in the distribution or sale of narcotics, specifically crack

cocaine and marijuana. One of the digital scales was found in the bonus room. He

testified that digital scales are commonly used to weigh narcotics.

After the agents completed their search of every room except the living room,

Agent DelGiorno asked Officer Williams to move the occupants to the bonus room.

Before moving the Defendant, Officer Williams briefly searched him and found nothing

on the Defendant’s person. However, Officer Williams then searched a jacket lying on

top of a table that the Defendant had been wearing when officers first arrived. Officer

Williams found “multiple clear plastic baggies” in a front pocket of the jacket. Based on

his training, Officer Williams knew that the baggies were commonly used to package

narcotics and turned them over to Agent DelGiorno. He then escorted the Defendant to

the bonus room.

Because of the number of potential defendants at the residence, Agent DelGiorno

decided to conduct strip searches2 of the occupants before transporting anyone to the

police department. Agent DelGiorno and Agent Chaney conducted a strip search of the

Defendant first. They instructed the Defendant to remove one piece of clothing at a time

until he was “completely disrobed.” At this time, Agent Evans entered the bonus room

and “saw [a] plastic baggie protruding from [the Defendant’s] butt cheeks.” Agent Evans

knew from his training that defendants commonly conceal narcotics between their butt

cheeks. He told the Defendant, “. . . I can see it sticking out of your butt cheeks, just go

ahead and pull it out for us.” Agent DelGiorno also saw the baggie and reached over to

detain the Defendant, but the Defendant pulled away from Agent DelGiorno and lunged

towards the back door. Hearing “a commotion,” Agent Briggs and Officer Williams

entered the bonus room and saw the Defendant on the ground with three officers

1

Agent DelGiorno testified at trial that a “roach” was the remnant of a marijuana blunt or

cigarette.

2

According to Agent DelGiorno, a strip search required the removal of “all the outer clothing of

the person and checking the genitals and the buttocks of the person” and was conducted in order to look

for concealed contraband.

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attempting to handcuff the Defendant. The Defendant had “locked up his hands up

against his body so the agents could not put his hands into handcuffs.” Additionally, the

Defendant’s “buttocks area was clenched very tightly and then he was kicking . . . his

lower extremity of his legs.” After a short struggle, the Defendant was placed into

handcuffs, and Agent Briggs observed “a small bag containing a white crystalline

substance[,]” laying on the ground in the area of the couch that had just been searched.

Agent Briggs photographed and collected the baggie and the Defendant’s cell phone.

The officers helped the Defendant put back on his clothes, but they “duck taped his

pants” at the ankles because they believed that “there may still be contraband inside his

butt cheeks.” The Defendant was then transported to the jail, where another strip search

was conducted.

The evidence recovered in the execution of the search warrant was sent to the

Tennessee Bureau of Investigation (TBI) Crime Laboratory for testing. Special Agent

William Stanton analyzed the small baggie containing a white crystalline substance that

was found on the ground under the couch after the Defendant’s strip search. Agent

Stanton determined that the substance inside the baggie contained cocaine base and

weighed 1.98 grams.3

CPD Detective Deborah Kolofsky obtained a search warrant for the Defendant’s

cell phone. Detective Kolofsky performed a forensic examination of the cell phone and

prepared an extraction report, which included text messages sent from and received by

the Defendant’s cell phone. Agent Chaney, who in the course of his work as a narcotics

agent was familiar with “street slang” associated with drug sales, reviewed the extraction

report provided by Detective Kolofsky. Upon review, he identified several text message

exchanges that contained slang words associated with the drug trade. In one exchange,

the Defendant received a text message that stated, “Bring me a 40 of the new when we

get there. If not, long.” Agent Chaney testified at trial that the request for “a 40” meant

that a buyer wanted four-tenths of a gram of crack cocaine for forty dollars. There was a

second message several days later from the same person again stating, “Bring me a 40[.]”

Agent Chaney explained that it was typical for drug customers to request the same

amount from a dealer each time. Another text message sent to the Defendant contained

the phrase “loud 900.” According to Agent Chaney, “‘Loud’ is a common slang term for

high-grade marijuana and nine hundred would indicate a half pound price for that.”

Another incoming message asked the Defendant, “What you letting[sic] 3 5 go for?”

Agent Chaney explained that the term “3 5” referred to the weight of an eight-ball, which

was commonly used in the selling of marijuana and cocaine. In another exchange, an

3

Agent Stanton testified at trial that the second baggie found inside the couch had a gross weight

of 0.77 grams, but the substance inside the bag was not analyzed based on TBI protocols. It does not

appear that the Defendant was charged with an offense based on this evidence.

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incoming message asked the Defendant, “You got some smoke?” According to Agent

Chaney, “smoke” referred to marijuana. Finally, the extraction report contained an

exchange in which the Defendant asked, “How was it?” The Defendant received a

response that said, “It wasn’t bad. It wasn’t any p***y work.” Agent Chaney stated that

the term “work” referred to crack cocaine.

Agent Chaney was familiar with the street value of crack cocaine in Clarksville

based on his training and experience. He testified that crack cocaine is priced on a ten-

scale, with a tenth (0.1) of a gram costing ten dollars. He stated that in Clarksville the

most common and popular order for crack cocaine a twenty dollar crack rock—or 0.2

grams. Agent Chaney said that possessing 2.0 grams was “generally indicative of sales

where they can break that rock up and sell [twenty] rocks out of it.” He stated that the

1.98 grams of crack cocaine found in the Defendant’s possession had a street value of

about $200. Agent Chaney also testified that the baggies found in the Defendant’s jacket

were consistently used in drug transactions and, specifically, in the sale of crack cocaine.

Based on this evidence, a jury convicted the Defendant of possession of 0.5 grams or

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

possession of drug paraphernalia, and resisting arrest on November 24, 2015.

At a sentencing hearing conducted December 17, 2015, the State introduced a

copy of the Defendant’s presentence report and certified judgments of conviction

establishing the Defendant’s prior convictions for the following felony offenses:

Conviction Offense Classification Date of

Conviction

Tampering with evidence Class C felony 04/22/2015

Possession of more than 0.5 grams of cocaine Class B felony 09/18/2003

for resale

Possession of more than 0.5 ounces of Class E felony 09/18/2003

marijuana for resale

Aggravated robbery Class B felony 10/13/2000

Theft of property over $1,000 Class D felony 04/09/1998

Aggravated burglary Class C felony 04/09/1998

Possession of cocaine with intent to deliver Class C felony 05/25/1994

The presentence report also indicated that the Defendant had misdemeanor

convictions for simple possession of marijuana, simple possession of cocaine, violation

of open container law, contributing to the delinquency of a minor, evading arrest, and

vandalism up to $500. The Defendant acknowledged to the presentence report writer that

he began smoking marijuana at the age of eleven and said that he smoked “every[ ]day.”

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The Defendant filed a written statement with the trial court. The Defendant’s

wife, Christie Harper, testified that she and the Defendant were married on April 20,

2015, but that they had been together “[o]ff and on” for the past fourteen years. She

stated that the Defendant had never attended drug rehabilitation but that it was something

she and the Defendant often talked about. She believed that the Defendant could be

successfully rehabilitated if he completed an in-patient drug program. She stated that the

Defendant had been “in and out of jail and prison” but that he needed drug rehabilitation.

She stated that the Defendant had a daughter, and he was already serving a twelve-year

sentence.

In sentencing the Defendant, the trial court found that the Defendant was a Range

III persistent offender based upon the judgments entered by the State and that the

sentence range for possession of 0.5 grams or more of cocaine with the intent to sell or

deliver was twenty to thirty years. Accordingly, the trial court found that the Defendant

was not eligible for probation for this offense. The trial court found that no mitigating

factors applied but that several enhancement factors applied. Specifically, the trial court

concluded that the Defendant had a previous history of criminal convictions or criminal

behavior in addition to that necessary to establish the appropriate range; the Defendant,

before trial or sentencing, had failed to comply with the conditions of a sentence

involving release into the community; and that at the time that the felony was committed

the Defendant was released on bail or pretrial release. Based on these factors, the trial

court sentenced the Defendant to serve twenty-three-years’ incarceration for possession

of 0.5 grams or more of cocaine with the intent to sell or deliver; eleven months and

twenty-nine days for possession of marijuana; eleven months and twenty-nine days for

possession of drug paraphernalia; and six months for resisting arrest. The trial court

ordered all counts to run concurrently with one another but consecutively to the

Defendant’s twelve-year sentence in a prior case.

No motion for new trial was filed following the entry of the Defendant’s

judgments of conviction on December 21, 2015. On November 23, 2016, counsel for the

Defendant filed a motion to withdraw from the Defendant’s case, which the trial court

granted on December 12, 2016. On January 12, 2017, the Defendant filed a pro se

“notice of delayed appeal” with this court and requested that the court appoint counsel

and waive the timeliness requirement under Rule 4 of the Tennessee Rules of Appellate

Procedure. In an order filed May 1, 2017, this court remanded the matter to the trial court

to determine whether the Defendant remained indigent and, if so, to appoint counsel.4

This court also agreed to waive the thirty-day deadline for the filing of a notice of appeal

in the interest of justice. See Tenn. R. App. P. 4(a). This appeal follows.

4

The record reflects that on May 11, 2017, the trial court appointed counsel to represent the

Defendant in this appeal.

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II. Analysis

A. Sufficiency of the Evidence

On appeal, the Defendant challenges the sufficiency of the evidence as it relates to

his conviction for possession of 0.5 grams or more of cocaine with the intent to sell or

deliver. He argues that “[w]hile evidence clearly indicated that [he] possessed a single

rock of crack cocaine, there is no indication or evidence that the rock of crack in [the

Defendant’s] rectum was meant for commercial use.” In other words, the State did not

establish the Defendant’s intent to sell or deliver the crack cocaine. The State responds

that the evidence is sufficient to sustain the Defendant’s conviction for possession of over

0.5 grams of cocaine with intent to sell or deliver. We agree with the State.

Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This

court will not reweigh the evidence. Id. Our standard of review “is the same whether the

conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). The defendant bears the burden of proving why the evidence was

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221

S.W.3d 514, 521 (Tenn. 2007).

It is an offense to knowingly possess a controlled substance with intent to

manufacture, deliver, or sell. Tenn. Code Ann. § 39-17-417(a)(4) (2015). A violation of

this section with respect to 0.5 grams or more of cocaine, a Schedule II controlled

substance, Tenn. Code Ann. § 39-17-408(b)(4) (2015), is a Class B felony. Tenn. Code

Ann. § 39-17-417(c)(1) (2015). A conviction for this offense may be had upon either

actual or constructive possession. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).

Constructive possession is the ability to reduce an object to actual possession. State v.

Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991) (quoting State v. Cooper, 736

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S.W.2d 125, 129 (Tenn. Crim. App. 1987)). With regard to a determination of intent to

sell or deliver, proof of intent usually consists of circumstantial evidence and the

inferences that can be reasonably drawn from that evidence. See Hall v. State, 490

S.W.2d 495, 496 (Tenn. 1973); State v. Washington, 658 S.W.2d 144, 146 (Tenn. Crim.

App. 1983) (observing that a jury may derive a defendant’s intent from both direct and

circumstantial evidence). It is permissible for the jury to infer from the amount of a

controlled substance or substances possessed by the defendant, along with other relevant

facts surrounding the arrest, that the controlled substance or substances were possessed

with the purpose of selling or delivering. Tenn. Code Ann. § 39-17-419 (2015).

In the present case, the evidence showed that during a strip search of the

Defendant, Agent Evans and Agent DelGiorno saw a plastic baggie in between the

Defendant’s butt cheeks. When the agents requested that the Defendant remove the item,

he resisted and lunged for the back door. Following a short struggle while agents

attempted to handcuff the Defendant, Agent Briggs observed “a small bag containing a

white crystalline substance,” laying on the ground in the area of the couch that had just

been searched. A forensic scientist with the TBI analyzed the substance and determined

that it was cocaine base and that it weighed 1.98 grams. Agent Chaney testified that 1.98

grams of crack cocaine had a street value of approximately $200. Agent Chaney further

testified that that possessing 2.0 grams was “generally indicative of sales where they can

break that rock up and sell [twenty] rocks out of it.” Agents also discovered items

commonly used in the drug trade, including additional plastic baggies inside a jacket

worn by the Defendant and a digital scale located in the bonus room where the Defendant

had been when Officer Williams first arrived. Finally, Agent Chaney testified that many

of the text messages retrieved from the Defendant’s cell phone indicated that the

Defendant was selling or delivering drugs. When viewed in the light most favorable to

the State, the evidence overwhelmingly supports the Defendant’s conviction for

possession of 0.5 grams or more of cocaine with intent to sell or deliver.

B. Sentencing

The Defendant also asserts that the trial court’s imposition of a twenty-three-year

sentence consecutive to his prior twelve-year sentence was excessive because both an

enhancement factor and consecutive sentencing factor relied upon by the trial court were

based upon a felony conviction that was later overturned on appeal. According to the

Defendant’s brief, he was on bail in Montgomery County Circuit Court case number

41400689 when he committed the instant offenses. The Defendant was subsequently

convicted of tampering with evidence and simple possession of marijuana arising out of

the prior case; however, his conviction for tampering with evidence was overturned on

appeal. See State v. Christopher Demotto Linsey, No. M2015-01851-CCA-R3-CD, 2016

WL 5416369, at *5 (Tenn. Crim. App. Sept. 27, 2016), no perm. app. filed. The

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Defendant argues that because two of the three enhancement factors relied upon by the

trial court involved the Defendant’s “not complying with the terms of bond/release into

the community” and his conviction for tampering with evidence was overturned, he is

entitled to resentencing. The State responds that the trial court properly sentenced the

Defendant to twenty-three years’ incarceration and properly ordered the sentence to be

served consecutively to the Defendant’s prior sentence. We again agree with the State.

When the record clearly establishes that the trial court imposed a sentence within

the appropriate range after a “proper application of the purposes and principles of our

Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of

discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,

707 (Tenn. 2012). The party challenging the sentence on appeal bears the burden of

establishing that the sentence was improper. Tenn. Code Ann. § 40-35-401 (2015),

Sentencing Comm’n Cmts.

To facilitate meaningful appellate review, the trial court must state on the record

the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code

Ann. § 40-35-210(e) (2015); Bise, 380 S.W.3d at 706. While the trial court should

consider enhancement and mitigating factors, such factors are advisory only. See Tenn.

Code Ann. § 40-35-114 (Supp. 2015); see also Bise, 380 S.W.3d at 699 n.33, 704; State

v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). We note that “a trial court’s weighing of

various mitigating and enhancement factors [is] left to the trial court’s sound discretion.”

Carter, 254 S.W.3d at 345. In other words, “the trial court is free to select any sentence

within the applicable range so long as the length of the sentence is ‘consistent with the

purposes and principles of [the Sentencing Act].’” Id. at 343. A trial court’s

“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. “[Appellate courts are] bound by a trial court’s decision as to

the length of the sentence imposed so long as it is imposed in a manner consistent with

the purposes and principles set out in sections -102 and -103 of the Sentencing Act.”

Carter, 254 S.W.3d at 346.

In determining a specific sentence within a range of punishment, the trial court

should consider, but is not bound by, the following advisory guidelines:

(1) The minimum sentence within the range of punishment is the

sentence that should be imposed, because the general assembly set the

minimum length of sentence for each felony class to reflect the relative

seriousness of each criminal offense in the felony classifications; and

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(2) The sentence length within the range should be adjusted, as

appropriate, by the presence or absence of mitigating and enhancement

factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c) (2015).

1. Sentence Length

In this case, the trial court properly applied the principles and purposes of

sentencing and explained its reasoning on the record. As such, we review the trial court’s

sentencing decision for an abuse of discretion with a presumption of reasonableness.

The trial court sentenced the Defendant, as a Range III persistent offender, to a

term of twenty-three years. On appeal, the Defendant does not challenge the trial court’s

finding that he is a Range III offender. Possession of 0.5 grams or more of cocaine with

intent to sell or deliver is a Class B felony, see Tenn. Code Ann. § 39-17-417(c)(1), and

as a Range III persistent offender, the Defendant’s sentence range was twenty to thirty

years. Tenn. Code Ann. § 40-35-112(c)(2). In determining the specific sentence within

the range of punishment, the trial court found that no mitigating factors applied but that

several enhancement factors applied. Specifically, the trial court found that the

Defendant had a previous history of criminal convictions or criminal behavior, in

addition to those necessary to establish the appropriate range; the Defendant, before trial

or sentencing, had failed to comply with the conditions of a sentence involving release

into the community; and that at the time that the felony was committed the Defendant

was released on bail or pretrial release.

The evidence presented at the sentencing hearing supports these enhancement

factors. Both the presentence report and the certified judgments of conviction clearly

demonstrate that the Defendant has a previous history of criminal convictions beyond that

necessary to establish the Defendant’s sentencing range. See Tenn. Code Ann. § 40-35-

114(1). Additionally, the presentence report indicates that, at the time that the felony was

committed in the instant case, the Defendant was on bail and awaiting trial for multiple

offenses committed on November 8, 2013. See Tenn. Code Ann. § 40-35-114(13)(A).

Specifically, the Defendant was charged in case number 41400689 with tampering with

evidence, possession of over 0.5 grams of cocaine for resale, simple possession of

marijuana, possession of heroin, and simple possession of alprazolam. Christopher

Demotto Linsey, 2016 WL 5416369, at *1. After trial, a jury found the Defendant guilty

of felony tampering with evidence and simple possession of marijuana, for which he

received an effective twelve-year sentence. Id. In an opinion filed after the Defendant’s

sentencing hearing in the instant case, this court found that the evidence was insufficient

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to support the Defendant’s conviction for tampering with evidence but affirmed the

simple possession conviction. Id. at *5.

The Defendant contends that, once his conviction for tampering with evidence was

reversed, enhancement factor 13 no longer applied. That section of the code states in

part: “[A]t the time the felony was committed, one (1) of the following classifications

was applicable to the defendant: Released on bail or pretrial release, if the defendant is

ultimately convicted of the prior misdemeanor or felony.” Tenn. Code Ann. § 40-35-

114(13)(A) (emphasis added). In this case, although the felony conviction was

overturned, the Defendant’s misdemeanor conviction for simple possession was not.

Accordingly, the trial court properly applied enhancement factor 13.

The final enhancement factor relied upon by the trial court was that the Defendant,

before trial or sentencing, failed to comply with the conditions of a sentence involving

release into the community. See Tenn. Code Ann. § 40-35-114(8). At the sentencing

hearing, the prosecutor announced that the Defendant had violated probation on five

separate occasions. Although this information was not contained in the presentence

report, the Defendant acknowledged in his statement to the trial court that he had “been

on probation a couple of times and [] didn’t do so good[.]” We also note that this court

has previously affirmed the trial court’s revocation of the Defendant’s community

corrections sentence, which he was serving for aggravated robbery, aggravated burglary,

and theft of property over $1,000. State v. Christopher Demotto Linsey, No. M2003-

02420-CCA-R3-CD, 2004 WL 3044900, at *1 (Tenn. Crim. App. Dec. 30, 2004), perm.

app. denied (Tenn. Mar. 28, 2005). Thus, we conclude that the trial court appropriately

considered enhancement factor 8.

The Defendant has not shown that the trial court abused its discretion when

imposing a twenty-three-year sentence for possession of 0.5 grams or more of cocaine

with intent to sell or deliver and is not entitled to relief.

2. Mandatory Consecutive Sentence

Tennessee Code Annotated section 40-20-111(b) provides that if a defendant

commits a felony while released on bail and is convicted of both offenses, the trial judge

has no discretion as to whether the sentences shall run concurrently or cumulatively but

must order that the sentences run cumulatively. Tenn. Code Ann. § 40-20-111(b).

Similarly, Tennessee Rule of Criminal Procedure 32(c)(3)(C), which mandates

consecutive sentences when a defendant commits a felony while released on bail and is

eventually convicted of both offenses, provides:

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(3) Mandatory Consecutive Sentences. When a defendant is

convicted of multiple offenses from one trial or when the defendant has

additional sentences not yet fully served as the result of convictions in the

same or other courts and the law requires consecutive sentences, the

sentence shall be consecutive whether the judgment explicitly so orders or

not. This rule shall apply:

...

(C) to a sentence for a felony committed while the

defendant was released on bail and the defendant is convicted

of both offenses[.]

Tenn. R. Crim. P. 32(c)(3)(C).

At the time the Defendant committed the offenses in this case, he was on bail for

the offenses committed in case number 41400689. The Defendant was convicted of a

felony offense in this case, i.e., possession of over 0.5 grams of cocaine with intent to sell

or deliver, and was convicted of tampering with evidence and simple possession in case

number 41400689. Thus, the trial court was required by law to order that the

Defendant’s twenty-three-year sentence run consecutively to his prior twelve-year

sentence. See Tenn. Code Ann. § 40-20-111(b); Tenn. R. Crim. P. 32(c)(3)(C).

Although the Defendant’s tampering with evidence conviction was later overturned,

neither Tennessee Code Annotated section 40-20-111(b) nor Rule 32(c) specifies that the

prior conviction must be a felony conviction. The Defendant is not entitled to relief.

III. Conclusion

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

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ROBERT L. HOLLOWAY, JR., JUDGE

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