State of Tennessee v. Gregory Gill

02/11/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2018

STATE OF TENNESSEE v. GREGORY GILL

Appeal from the Circuit Court for Madison County

No. 16-423 Roy B. Morgan, Jr., Judge

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No. W2018-00331-CCA-R3-CD

___________________________________

After a jury trial, Gregory Gill, Defendant, was convicted of two counts of possession of

cocaine with intent to sell or deliver, two counts of possession of marijuana with intent to

sell or deliver, four counts of unlawful possession of a firearm with the intent to go armed

during the commission of or attempt to commit a dangerous felony, one count of

unlawful possession of a firearm after being convicted of a felony involving the

attempted use of force, violence, or a deadly weapon, one count of possession of drug

paraphernalia, and one count of evading arrest. The trial court sentenced Defendant to a

total effective sentence of thirty-eight years in the Tennessee Department of Correction.

On appeal, Defendant asserts that: (1) the trial court erred in denying his motion to

suppress; (2) the evidence was insufficient for a rational trier of fact to have found him

guilty beyond a reasonable doubt; (3) the trial court erred in allowing the State to cross-

examine a defense witness about his pending criminal charges; and (4) the trial court

imposed an excessive sentence. After a thorough review of the facts and applicable case

law, we affirm.

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 ROBERT W.

WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

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

Public Defender, for the appellant, Gregory Gill.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant

Attorney General; Jody Pickens, District Attorney General; and Lee Sparks, Assistant

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

OPINION

I. Factual and Procedural Background

On October 3, 2016, the Madison County Grand Jury indicted Defendant on the

following charges:

Count Charged offense

One Possession of 0.5 grams or more of cocaine with the intent to sell

Two Possession of 0.5 grams or more of cocaine with the intent to deliver

Three Possession of more than 0.5 ounce of marijuana with the intent to sell

Four Possession of more than 0.5 ounce of marijuana with the intent to

deliver

Five Unlawful possession of a firearm with the intent to go armed during the

commission of or attempt to commit a dangerous felony

Six Unlawful possession of a firearm with the intent to go armed during the

commission of or attempt to commit a dangerous felony

Seven Unlawful possession of a firearm with the intent to go armed during the

commission of or attempt to commit a dangerous felony

Eight Unlawful possession of a firearm with the intent to go armed during the

commission of or attempt to commit a dangerous felony

Nine Unlawful possession of a firearm after being convicted of a felony

involving the attempted use of force, violence, or a deadly weapon

Ten Possession of drug paraphernalia

Eleven Evading arrest

Motion to suppress hearing

Defendant filed a motion to suppress the results of Sergeant Samuel Gilley’s

warrantless search of his vehicle. He argued that Investigators Scott Cornelison and

Kristi Foster “exercised a show of authority in attempting to take Defendant into custody

despite having no evidence that . . . Defendant was committing a crime or was about to

commit a crime.”

Sergeant Gilley testified that he worked for the Jackson Police Department

(“JPD”) in the narcotics unit. On March 23, 2016, Sergeant Gilley received a description

of Defendant from the U.S. Marshals Service and learned that there was an outstanding

arrest warrant from Texas for Defendant for third degree felony assault strangulation or

suffocation. Sergeant Gilley also received a description of the vehicle that Defendant

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was driving. He encountered the vehicle, a blue Chrysler 200 with Colorado tags,1 at the

intersection of Lane Avenue and Highland. Sergeant Gilley, along with Investigators

Cornelison and Foster, followed the rental vehicle north on Highland. The rental vehicle

eventually turned into the parking lot of the Old Hickory Mall (“the Mall”). The rental

vehicle drove by the entrance to the Mall, and a passenger exited the vehicle. Sergeant

Gilley observed that the passenger did not match Defendant’s description. The rental

vehicle then continued into the parking lot and parked. Sergeant Gilley observed

Defendant get out of the driver’s side of the vehicle, put his hood over his head, and walk

towards the entrance to the Mall. Sergeant Gilley pulled his vehicle in front of the Mall

to let Investigators Cornelison and Foster, who were wearing plain clothes with a vest

marked “police,” exit the vehicle. Sergeant Gilley stayed in the vehicle so that he could

pursue Defendant if necessary. Defendant turned around, observed Investigators

Cornelison and Foster walking towards him, and “took off running through the [M]all.”

Investigators Cornelison and Foster pursued Defendant through the Mall. Sergeant

Gilley drove to the parked rental vehicle. When he exited his vehicle and approached the

rental vehicle, he “could smell marijuana coming from the vehicle.” Sergeant Gilley

shined a light into the rental vehicle and observed “a clear plastic cup laying in the back

floorboard” that contained “broken down marijuana[.]” Sergeant Gilley described the

smell as “a pungent marijuana odor.”2 Sergeant Gilley asked a patrol unit to unlock the

rental vehicle, and Sergeant Gilley then searched it. During the search, Sergeant Gilley

found “some packaged marijuana for resale, some packaged crack cocaine, digital scales,

[and a] firearm in the passenger compartment of the vehicle.” He stated that the

packaged marijuana weighed approximately thirty grams and that the packaged cocaine

weighed ten or eleven grams. Sergeant Gilley found the firearm, a semi-automatic Glock

handgun, under the driver’s seat. When Sergeant Gilley searched the rental vehicle’s

trunk, he found a bag that contained clothing, drug paraphernalia, baggies, and scales.

Sergeant Gilley also found Defendant’s identification in the trunk.

On cross-examination, Sergeant Gilley agreed that the marijuana in the cup was a

residual amount. Sergeant Gilley identified a receipt that was found in the rental vehicle

that had “Dreds” written on it. Sergeant Gilley explained that the Glock handgun was

under the driver’s seat with the handle facing the front of the seat. The handgun had a

laser sight attached that was plugged into a USB charger in the cigarette lighter.

1

At trial, Sergeant Gilley testified that a female rented the vehicle from Enterprise.

2

Sergeant Gilley explained that he identified the odor as marijuana based on his years of work as

a law enforcement officer as well as “over 300 hours . . . of specialized training in narcotics

identification[.]”

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Sergeant Richard Newbill testified that he worked for the JPD in the gang unit.

He also worked as an officer on the Gulf Coast Fugitive Task Force.3 On March 23,

2016, Sergeant Newbill assisted Sergeant Gilley in attempting to apprehend Defendant at

the Mall. Sergeant Gilley observed a vehicle that he believed contained Defendant, a

known fugitive.4 Sergeant Newbill learned from Sergeant Gilley that Defendant had left

the vehicle and was running away, so Sergeant Newbill headed to the Mall to assist.

Sergeant Newbill pursued Defendant to a nearby apartment complex. Sergeant Newbill

and other officers located Defendant under a vehicle in the parking lot of the apartment

complex. Defendant was taken into custody, and Sergeant Newbill searched Defendant’s

person incident to that arrest.

On cross-examination, Sergeant Newbill explained that he had a description of the

vehicle that Defendant may have been using, and Sergeant Gilley first observed a vehicle

that fit the description south of the Mall. On redirect examination, Sergeant Newbill

explained that, prior to executing the arrest warrants for Defendant, he viewed a

photograph of Defendant. At the time of the arrest, Sergeant Newbill was able to identify

Defendant based on the photograph and based on Sergeant Gilley’s physical description

of Defendant.

Investigator Cornelison testified that he worked in the Jackson-Madison County

Metro Narcotics Unit. On March 23, 2016, Investigator Cornelison was working with

Investigator Foster and Sergeant Gilley to apprehend Defendant for the purpose of

arresting him on active warrants. The law enforcement officers “were following up on

some information received on a vehicle and two male subjects possibly selling drugs, not

at the [M]all but at another location.” The officers “conducted surveillance and followed

[the rental] vehicle to the [M]all.” Investigator Cornelison observed Defendant exit the

vehicle and walk toward the Mall. Investigator Cornelison pulled his vehicle in front of

the Mall, exited the vehicle, and attempted to catch up to Defendant. Defendant turned

around, observed that Investigator Cornelison was following him, and “took off running.”

Investigator Cornelison yelled, “Stop. Stop. Police.”

The trial court credited the testimony of Sergeant Gilley, Sergeant Newbill, and

Investigator Cornelison. The trial court found that the law enforcement officers “had

prior knowledge” about Defendant’s active warrants from Texas because the U.S.

3

At trial, Sergeant Newbill explained that the Task Force was a “task force through the United

States Marshals Service where [law enforcement officers] apprehend fugitives from justice subject to

arrest warrants.”

4

Sergeant Newbill explained that the Task Force obtained its own warrants and relied on

“collateral” leads from other task forces. The Task Force received a collateral lead from the U.S.

Marshals Task Force in Texas about warrants issued for Defendant on the charges of “felony assault,

strangulation and suffocation.”

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Marshals Office distributed a photograph and description of Defendant along with the

warrants. The trial court concluded that the search incident to Defendant’s arrest was

proper and denied the motion to suppress as to the search of Defendant’s person. The

trial court found that Sergeant Gilley smelled an odor emanating from the rental vehicle

that he believed to be marijuana and observed a substance in the rental vehicle that he

believed to be marijuana “based on his education, training, and experience[.]” The trial

court held that Sergeant Gilley had probable cause to search the rental vehicle based on

his observations and smelling of marijuana. The trial court concluded that:

considering all of this, still the potential of someone else coming back, the

mobility of the vehicle, the reduced expectation of privacy, the probable

cause having been established from plain view and smell, . . . the motion to

suppress should be denied under the circumstances, and any items found in

the vehicle certainly could be offered during the course of the trial of the

matter.

Jury trial

The State’s proof

At trial, Investigator Cornelison testified similarly to his testimony at the

suppression hearing. Additionally, he testified that, after he made contact, Defendant ran

from the Mall’s front entrance “all the way down to . . . two jewelry stores[.]” Defendant

then ran towards the entrance of J.C. Penney’s salon, and Investigator Cornelison lost

sight of Defendant. When Investigator Cornelison realized that he was not going to be

able to apprehend Defendant, he transmitted information on Defendant’s location to the

other law enforcement officers via radio. Investigator Cornelison was present when

Defendant was apprehended at a nearby apartment complex. On cross-examination,

Investigator Cornelison stated that he observed at least two people in the rental vehicle

when he and the other law enforcement officers first spotted the vehicle.

Sergeant Newbill testified similarly to his testimony at the suppression hearing.

He also stated that, after Defendant ran from Investigator Cornelison in the Mall, law

enforcement officers began canvassing the area around J.C. Penney and a nearby

apartment complex. Officers observed Defendant “running between two cars[,]” but they

were unable to apprehend him. Officers expanded their search perimeter and brought in a

helicopter and canine officers to assist in the search. Officers finally apprehended

Defendant under a vehicle in the parking lot of the apartment complex. Officers arrested

Defendant, searched his person, and found keys to a Chrysler vehicle.

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Andrea Hays testified that she worked as a detention facility specialist for the

Madison County Sheriff’s Office. Ms. Hays previously composed a report about an

incident that occurred at the Madison County Jail on March 24, 2016. On that date,

Defendant informed Ms. Hays that another inmate, Rondarious Bond, stole $1,100 from

him. Ms. Hays informed Captain Wilson, who arranged for a corrections officer and the

maintenance professional, Tony Campbell, to search the plumbing of a toilet. Mr.

Campbell pushed a steel rod into “a clean-out six-inch pipe” behind the toilet and pulled

out a potato chip bag. He found $1,070 in cash wrapped in cellophane inside the potato

chip bag.

Sergeant Gilley testified similarly to his testimony at the suppression hearing. He

also testified that when he searched the trunk of the rental vehicle, he found a blue

backpack that contained a jar with Defendant’s driver’s license, a small plastic bag with a

small amount of cocaine, a set of digital scales, and a rolled up dollar bill. Sergeant

Gilley found .40-caliber ammunition in both the center console and the blue backpack.

He also found a Gander Mountain receipt dated March 17, 2016, for a Crimson Trace

laser sight and a second receipt showing that the buyer returned the Crimson Trace laser

sight and then purchased a Genesis laser sight and protection plan.

Sergeant Gilley testified that he directed investigators to go to the Madison County

Jail and recover money that had been found in a cell. Sergeant Gilley identified a CD

that contained the audio recording of the visitation room at the Madison County Jail from

March 24, 2016. The audio recording was played for the jury. Sergeant Gilley identified

the male voice on the recording as that of Defendant. Approximately forty-five minutes

into the recording, Defendant described his interaction with law enforcement during the

offenses and mentioned that he “lost [his] phone in the woods” and that “they took . . .

almost eleven hundred dollars, some soft, some weed, that damn glock[.]” Defendant

described the gun as “a forty” and “the twenty-two glock” with “a beam” and

“extendo[.]” Sergeant Gilley explained that “extendo” referred to an extended firearm

magazine and that “beam” referred to a laser sight on a firearm. He also explained that

“soft” referred to powder cocaine and “weed” referred to marijuana.

Sergeant Gilley testified that individuals frequently used plastic bags and digital

scales to measure out and package controlled substances for illegal sale and distribution.

He estimated that the marijuana found in the rental vehicle was worth between $500 and

$600 and that the cocaine was worth between $1,000 to $3,000. Sergeant Gilley stated

that drug dealers frequently carried weapons to discourage individuals from stealing

proceeds of drug sales or the controlled substance. Sergeant Gilley testified that, in his

opinion, the amount of cocaine that was recovered from the rental vehicle was not

consistent with personal use because cocaine users do not carry cocaine around. Instead,

cocaine users generally purchase smaller amounts and use the drug rather than carry the

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drug with them. Sergeant Gilley testified similarly that the amount of marijuana

recovered in the rental vehicle was not consistent with personal use because “most

marijuana users that [law enforcement] run into are not going to run around with over a

half ounce of marijuana on them because they know a half ounce or more of marijuana is

a felony.” Sergeant Gilley stated that the fact that Defendant had over $1,000 in his

possession in the Madison County Jail indicated that Defendant had recently sold some

drugs.

On cross-examination, Sergeant Gilley testified that drug users frequently used a

rolled-up dollar bill to snort cocaine, and he agreed that finding a rolled-up bill in the

same vicinity of drugs would indicate that the drugs were for personal use. He agreed

that Defendant could have learned that law enforcement recovered cocaine, marijuana,

and a firearm during the offenses from his arraignment hearing and other legal

proceedings that occurred prior to the visitation recording. During redirect examination,

Sergeant Gilley stated that drug traffickers use rental vehicles to “move drugs around”

because they will not lose ownership of the rental car through forfeiture if arrested on

drug charges. He also explained that drug traffickers do not rent vehicles under their

name because “obviously they don’t want to leave anything that ties back to them[.]”

Brian Simpson testified that he was a manager at Gander Mountain. In March

2016, Mr. Simpson spoke with Sergeant Gilley about a customer’s transaction. Mr.

Simpson recognized Defendant from a transaction at Gander Mountain; Defendant came

into the store around 9:00 p.m. and purchased a laser sight. Defendant left the store but

returned approximately twenty minutes later to return the laser sight and purchase a

different laser sight. Mr. Simpson recalled that he installed the new laser sight on

Defendant’s firearm, a Glock. Mr. Simpson identified the two receipts that were found in

the rental vehicle as coming from the transactions that Defendant had at Gander

Mountain. He noted that the receipts showed that Defendant paid for both laser sights

with cash.

Special Agent Peter Hall testified that he worked for the Tennessee Bureau of

Investigation (“TBI”) as a forensic scientist. Special Agent Hall tested one bag of

marijuana that was recovered from the rental vehicle; the substance weighed 17.06

grams. He also testified that the gross weight5 of the second bag of marijuana was 15.57

grams. Special Agent Hall tested the powder substance that officers recovered from the

rental vehicle and confirmed that it was cocaine hydrochloride; the gross weight of this

bag of cocaine was 3.42 grams.

5

Special Agent Hall explained that the gross weight of a substance included the bag containing

the substance.

-7-

The State and Defendant stipulated that Defendant had previously been convicted

of a felony that involved the use or attempted use of force, violence, or a deadly weapon.

Defendant’s proof

Brendan Tyler Burns testified that, on March 23, 2016, he went to get a haircut on

Lane Avenue. He explained that he was driving a vehicle that was rented for him by a

female friend, “Dannie Ray.” After Mr. Burns’ haircut, Defendant, who had also gotten a

haircut, drove Mr. Burns in the rental vehicle to the Mall. When they arrived at the Mall,

Defendant dropped Mr. Burns off at the entrance of the Mall and parked the rental

vehicle. As Defendant was walking into the Mall, Mr. Burns observed an officer enter

behind Defendant and yell Defendant’s name. Defendant “took off running.” Mr. Burns

said that the officer did not approach him, so he left the Mall, went across the street, and

got a ride from his girlfriend because Defendant had the keys to the rental vehicle.

Mr. Burns explained that he owned a backpack found in the front seat of the rental

vehicle and “some powder” and “some weed” in the middle console of the passenger

compartment. He stated that he also owned several backpacks that were in the trunk of

the rental vehicle. He noted that Defendant put a backpack in the trunk when they drove

together to the Mall. Mr. Burns thought that Defendant’s backpack was green and stated

that he owned the black backpack and the blue backpack. He also admitted that he had

plastic sandwich baggies in one of his backpacks in the trunk, but he denied that there

were any drugs in the trunk. He also denied that he owned the firearm that was found in

the rental vehicle; however, he admitted that he gave Defendant some bullets. Mr. Burns

explained that he borrowed Defendant’s driver’s license because he did not have a

driver’s license and needed identification “to do something[.]” However, he later stated

that he used Defendant’s driver’s license to separate powder cocaine for snorting. He

stated that he put Defendant’s license in “a little jar [that he] used to have weed in[.]”

Additionally, he owned the wrapped-up dollar bill, which he said he used to snort powder

cocaine with his friends, and a set of digital scales. Mr. Burns explained that the vehicle

rental agreement had “dreads” written on it because he used to wear his hair in dreads, so

the female friend that rented the vehicle for him wrote “dreads” instead of his name. He

stated that he was not charged with any criminal offenses related to his possession of the

items found in the rental vehicle. He asserted that Defendant was unaware that Mr.

Burns had drugs and scales in the rental vehicle.

On cross-examination, Mr. Burns admitted that he was a drug dealer. He agreed

that he was living in the same jail cell in the Madison County Jail as Defendant from

September 2016 through December 2016. Mr. Burns memorialized his version of the

events underlying the offenses at issue in writing and sent it in a letter to defense counsel

on November 11, 2016. He agreed that he was incarcerated in the same cell in the

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Madison County Jail as Defendant from February 24, 2017, to April 4, 2017. He wrote

his version of the events in an affidavit on March 18, 2017. He agreed that he had not

shared the details of his version of events with anyone other than Defendant and defense

counsel prior to completing the affidavit. He also asserted that he did not discuss

Defendant’s criminal charges with Defendant while they were incarcerated together. Mr.

Burns agreed that he was currently incarcerated on the charge of first degree murder and

attempted aggravated robbery of a TBI special agent.

Lilly Gill testified that she was Defendant’s mother. Approximately a week

before the current offenses, Ms. Gill gave Defendant about $600 to help him pay living

expenses until he found a job. Amy Cooper testified that Defendant was her boyfriend.

Around the time of the offenses, Ms. Cooper gave Defendant approximately $700.

Defendant waived his right to testify and rested his case.

The State’s rebuttal proof

Sergeant Gilley testified that the passenger who got out of the rental vehicle at the

Mall entrance “was definitely 100 percent not Brendan Burns.” Sergeant Gilley

described the passenger as a “short, black-skinned” man with “shoulder-length

microbraids[.]” He testified that he was familiar with Mr. Burns prior to the offenses at

issue. Sergeant Gilley identified the lease agreement of the rental vehicle and stated that

the name of the lessee was “Olivia Vaulx.” He also noted that the jar that contained

Defendant’s driver’s license also contained several other cards of similar shape and

material that could also have been used for separating cocaine. On cross-examination,

Sergeant Gilley stated that the rental vehicle stopped “right in front of [him]” and that he

“looked at the passenger.”

Captain Brian Wilson testified that he worked as the assistant jail administrator at

the Madison County Jail. He stated that Defendant and Mr. Burns were in the same

housing area, A201, from August 11, 2016, through April 4, 2017. He also testified that

Defendant and Mr. Burns were housed in the same cell during the following dates:

August 11, 2016, through September 1, 2016; September 12, 2016, through September

21, 2016; September 24, 2016, through December 26, 2016; and February 24, 2017,

through April 4, 2017.

The jury found Defendant guilty as charged on all counts.

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Sentencing hearing

The trial court admitted the presentence report and certified copies of Defendant’s

prior judgments into evidence. In 2004, Defendant entered a best interest plea to two

counts of aggravated assault. Defendant also pled guilty to aggravated robbery in 2004.

In 2016, Defendant was convicted of driving on a suspended license. The trial court

stated that it had considered “the evidence presented at trial and the evidence presented

today and arguments of counsel and presentence report, exhibits[,]” “[t]he sentencing

guidelines or principles[,]” “the nature and characteristics of the criminal conduct

involved, [and] the enhancing and mitigating factors argued by counsel.” The trial court

noted that the State and Defendant agreed that Defendant was a Range II offender.

The trial court found that Defendant had a previous history of criminal convictions

or criminal behavior, in addition to those needed to establish Defendant’s sentencing

range; the trial court applied this factor to all of Defendant’s convictions. The trial court

found that Defendant possessed or employed a firearm during the commission of the

offense and applied this factor to counts one through four. The trial court also found that

Defendant was released on bond during the commission of the offenses because evidence

in the presentence report showed that Defendant was on bond on charges from Texas at

the time he committed the current offenses. The trial court found that Defendant’s

criminal conduct neither caused nor threatened serious bodily injury and stated that this

factor favored Defendant. The trial court ordered Defendant to serve the following

sentences:

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Count Sentence Release eligibility percentage Alignment

One Eighteen years Thirty-five percent

Two Eighteen years Thirty-five percent Merged with count

one

Three Four years Thirty-five percent Consecutive to

count one

Four Four years Thirty-five percent Merged with count

three

Five Eight years Three years at 100% and five Consecutive to

years at thirty-five percent count three

Six Eight years Three years at 100% and five Merged with count

years at thirty-five percent five

Seven Eight years Three years at 100% and five Merged with count

years at thirty-five percent five

Eight Eight years Three years at 100% and five Merged with count

years at thirty-five percent five

Nine Eight years Thirty-five percent Consecutive to

count five

Ten Eleven months and Seventy-five percent Concurrent with

twenty-nine days count one

Eleven Eleven months and Seventy-five percent Concurrent with

twenty-nine days count one

The trial court noted that, by statute, counts five through eight were to be served

consecutively to counts one through four. Regarding count nine, the trial court

determined that Defendant was “a professional criminal who has knowingly devoted [his]

life to criminal acts as a major source of livelihood.” The trial court based this finding on

the current case as well as Defendant’s “whole criminal history[.]” The trial court also

found that Defendant was “an offender whose record of criminal activity [wa]s

extensive” and that Defendant was “a dangerous offender whose behavior indicate[d]

little or no regard for human life and no hesitation about committing a crime in which the

risk to human life [wa]s high[.]” The trial court found that “[t]he circumstances

surrounding the commission of the offense[s] [were] aggravated” and that “the aggregate

length of the sentence reasonably relate[d] to the offense[s] of which . . . Defendant [was]

convicted.” Thus, Defendant received a total effective sentence of thirty-eight years in

the Tennessee Department of Correction. Defendant filed a timely motion for new trial,6

which the trial court denied. Defendant now timely appeals.

6

Defendant prematurely filed his motion for new trial before the judgments were entered.

However, we will address Defendant’s issues on the merits because the State did not raise this issue on

appeal and we discern no prejudice to the State. See State v. Siliski, 238 S.W.3d 338, 374 (Tenn. Crim.

App. 2007).

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II. Analysis

Motion to suppress

Defendant asserts that the trial court should have granted the motion to suppress

Investigator Cornelison’s search of the rental vehicle and seizure of evidence. He argues

that Investigator Cornelison had no evidence that he was committing or was about to

commit a crime. He also points out that he was arrested at a different location than the

rental vehicle, and thus, Investigator Cornelison could not search the rental vehicle as a

search incident to Defendant’s arrest. The State responds that “[t]he search was properly

conducted pursuant to the automobile exception to the warrant requirement” and that

“Sergeant Gilley had probable cause to search the car when he smelled the odor of

marijuana emanating from the vehicle and when he could see, in plain view, a cup with

marijuana in it sitting on the floorboard.”

When reviewing a motion to suppress, this court is bound by the trial court’s

findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence, and

resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing

party is entitled to the strongest legitimate view of the evidence and all reasonable

inferences that may be drawn therefrom. Id. We review the trial court’s conclusions of

law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005).

The United States and Tennessee constitutions protect citizens from unreasonable

searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; State v. Binette, 33

S.W.3d 215, 218 (Tenn. 2000). Generally, “under both the federal and state

constitutions, a warrantless search or seizure is presumed unreasonable, and evidence

discovered as a result thereof is subject to suppression unless the State demonstrates that

the search or seizure was conducted pursuant to one of the narrowly defined exceptions to

the warrant requirement.” State v. Yeargan, 958 S.W.2d 525, 629 (Tenn. 1997).

In State v. Saine, the Tennessee Supreme Court set out the following standard for

the automobile exception to the Fourth Amendment’s warrant requirement:

The “automobile exception” to the warrant requirement permits an

officer to search an automobile if the officer has probable cause to believe

that the automobile contains contraband. The rationale for the automobile

exception is two-fold. First, it is often impractical for officers to obtain

search warrants in light of the inherent mobility of automobiles. Second,

individuals have a reduced expectation of privacy in their automobiles. If

the officer has probable cause to believe that the automobile contains

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contraband, the officer may either seize the automobile and then obtain a

warrant or search the automobile immediately.

297 S.W.3d 199, 207 (Tenn. 2009) (internal citations omitted). The supreme court also

held that “the automobile exception does not require a separate finding of exigency under

the Tennessee Constitution.” Id. This court has previously held that “[t]he detection of

the odor of marijuana [i]s sufficient to allow the subsequent warrantless search of the

automobile[.]” Hicks v. State, 534 S.W.2d 872, 874 (Tenn. Crim. App. 1975); see also

State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976).

The Supreme Court of the United State explained in United States v. Ross, 456

U.S. 798, 824 (1982), that “[t]he scope of a warrantless search of an automobile” is

“defined by the object of the search and the places in which there is probable cause to

believe that it may be found.” In State v. David C. Volz, No. 01C01-9604-CC-00171,

1997 WL 719050, at *5 (Tenn. Crim. App. Nov. 19, 1997), perm. app. denied (Tenn.

Aug. 3, 1998), this court applied Ross and reversed the trial court’s suppression of

evidence obtained during a warrantless search of the defendant’s vehicle. Officers found

marijuana in a backpack in the trunk of the defendant’s vehicle. Id. This court held that

officers had probable cause to unzip the backpack in the trunk under the automobile

exception based on information from a confidential informant that individuals in the

vehicle would be at a particular location for a period of time for the purpose of

conducting drug transactions. Id.

The plain view doctrine, another exception to the Fourth Amendment’s prohibition

against warrantless searches, originated in Coolidge v. New Hampshire, 403 U.S. 443,

465 (1971) (plurality opinion), wherein the United States Supreme Court held that “under

certain circumstances the police may seize evidence in plain view without a warrant.” In

Tennessee, the plain view doctrine applies when:

(1) the officer did not violate constitutional mandates in arriving at the

location from which the evidence could plainly be seen; (2) the officer had

a lawful right of access to the evidence; and (3) the incriminating character

of the evidence was “immediately apparent,” i.e., the officer possessed

probable cause to believe that the item in plain view was evidence of a

crime or contraband.

State v. Coulter, 67 S.W.3d 3, 43 (Tenn. Crim. App. 2001) (citing Minnesota v.

Dickerson, 508 U.S. 366, 375 (1993); Soldal v. Cook County, Illinois, 506 U.S. 56, 65-66

(1992); Horton v. California, 496 U.S. 128, 136-37 (1990); Arizona v. Hicks, 480 U.S.

321, 326-27 (1987)); see also State v. Cothran, 115 S.W.3d 513, 524-25 (Tenn. Crim.

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App. 2003) (recognizing that both the United States Supreme Court and Tennessee courts

no longer require that seized items be inadvertently discovered).

Here, the trial court found that Sergeant Gilley smelled an odor emanating from

the rental vehicle that he believed to be marijuana and observed a substance in the rental

vehicle that he believed to be marijuana “based on his education, training, and

experience[.]” Thus, the trial court concluded that Sergeant Gilley had probable cause to

search the rental vehicle based on his plain view observation and smelling of marijuana.

The trial court also relied on the automobile exception for denying the motion to suppress

the results of the search of the rental vehicle because it considered Defendant’s reduced

expectation of privacy in the vehicle, the possibility that Defendant or his passenger

could have returned to the vehicle, and the fact that the vehicle was inherently mobile.

We conclude that the trial court did not abuse its discretion by denying

Defendant’s motion to suppress because the warrantless search of the rental vehicle was

supported by both the automobile exception and the plain view exception. Sergeant

Gilley recognized the odor of marijuana emanating from the rental vehicle based on his

years of experience as a law enforcement officer. The “pungent marijuana odor” gave

Sergeant Gilley sufficient probable cause to search the rental vehicle, including the trunk,

under the automobile exception because he reasonably believed that the vehicle contained

a controlled substance, marijuana. See David C. Volz, 1997 WL 719050, at *5; see also

State v. Tywan Garcia Armstrong, No. M2008-02837-CCA-R3-CD, 2010 WL 987207, at

*6 (Tenn. Crim. App. Mar. 18, 2010) (concluding that an officer had probable cause to

search the entire vehicle for “marijuana, guns, and any evidence of the undercover drug

buy” under the automobile exception because the officer smelled marijuana), no perm.

app. filed.

Additionally, under the plain view exception, Sergeant Gilley did not violate any

constitutional mandates by approaching the rental vehicle in the Mall parking lot. When

Sergeant Gilley arrived at the vehicle, he shone a light into the vehicle and observed “a

clear plastic cup laying in the back floorboard of the vehicle” that contained “broken

down marijuana[.]” Lastly, the incriminating nature of the contraband, the appearance of

marijuana, was “immediately apparent” to Sergeant Gilley based on his experience as a

law enforcement officer who had previously dealt with controlled substances. Thus,

Sergeant Gilley had probable cause to search the rental vehicle based on the marijuana in

plain view in the vehicle. See State v. Bryan Herman Dowdy, No. W2000-01011-CCA-

R3-CD, 2001 WL 91732, at *5 (Tenn. Crim. App. Jan. 26, 2001) (concluding that

officers had probable cause to search the defendant’s vehicle because they could see beer

bottles in plain view in the vehicle), no perm. app. filed. Defendant is not entitled to

relief on this ground.

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Sufficiency of the evidence

Defendant argues that the State failed to introduce evidence sufficient to prove the

element of possession beyond a reasonable doubt in counts one through nine. He asserts

that the jury was confused about the element of possession based on the question that the

jury submitted to the trial court during jury deliberation. The State contends that the

evidence was sufficient to support Defendant’s convictions on all charges.

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).

Possession of cocaine and marijuana with the intent to sell or deliver

It is a criminal offense for a person to knowingly “[p]ossess a controlled substance

with intent to manufacture, deliver or sell the controlled substance.” Tenn. Code Ann. §

39-17-417(a)(4) (2016). Cocaine is a Schedule II controlled substance. Tenn. Code Ann.

§ 39-17-408(b)(4) (2016). Possession of cocaine weighing 0.5 grams or more with the

intent to sell or deliver the substance is a Class B felony. Tenn. Code Ann. § 39-17-

417(c)(1) (2016). Marijuana is a Schedule VI controlled substance. Tenn. Code Ann. §

39-17-415(a)(1) (2016). Possession of one-half ounce to ten pounds of marijuana with

the intent to sell or deliver is a Class E felony. Tenn. Code Ann. § 39-17-417(g)(1)

(2016).

Possession “may be either actual or constructive.” State v. Shaw, 37 S.W.3d 900,

903 (Tenn. 2001). When a person “knowingly has direct physical control over a thing, at

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a given time, [that person] is then in actual possession of it.” State v. Edmondson, 231

S.W.3d 925, 928 (Tenn. 2007) (quoting BLACK’S LAW DICTIONARY 1163 (6th ed.

1990)). When a person knowingly has “the power and the intention at a given time to

exercise dominion and control over an object, either directly or through others[,]” that

person has constructive possession over the object. United States v. Craig, 522 F.2d 29,

32 (6th Cir. 1975) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.

1973)); see also State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981).

“Knowing” refers to a person who acts knowingly with respect to the

conduct or to circumstances surrounding the conduct when the person is

aware of the nature of the conduct or that the circumstances exist. A person

acts knowingly with respect to a result of the person’s conduct when the

person is aware that the conduct is reasonably certain to cause the result.”

Tenn. Code Ann. § 39-11-302(b) (2016). “Proof that a possession is knowing will

usually depend on inference and circumstantial evidence.” State v. Brown, 915 S.W.2d 3,

7 (Tenn. Crim. App. 1995). “The mere presence of a person in an area where drugs are

discovered is not, alone, sufficient to support a finding that the person possessed the

drugs.” State v. Cooper, 736 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). The jury may infer

“from the amount of a controlled substance or substances possessed by an offender, along

with other relevant facts surrounding the arrest, that the controlled substance or

substances were possessed with the purpose of selling or otherwise dispensing.” Tenn.

Code Ann. § 39-17-419 (2016).

Initially, we will address Defendant’s contention that the jury was confused about

the element of possession because the jury asked the trial court a question during

deliberation. The jury’s question said, “If more than one person is in a vehicle and drugs

are found, is the driver automatically the owner?” Both the State and defense counsel

agreed that the trial court properly instructed the jury on possession, so the trial court

instructed the jury to review the instructions on possession. On appeal, we must presume

that the jury followed the trial court’s instructions. See State v. Lawson, 695 S.W.2d 202,

204 (Tenn. Crim. App. 1985). Any attempt to divine the meaning behind the jury’s

deliberations is not appropriate for our review of the sufficiency of the evidence. See

State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015) (quoting United States v. Zane, 495 F.2d

- 16 -

683, 690 (2nd Cir. 1974)) (recognizing “the sanctity of the jury’s deliberations and the

strong policy against probing into its logic or reasoning”).

Special Agent Hall testified that the marijuana in one bag recovered from the

rental vehicle weighed 17.06 grams and that the gross weight of the second bag of

marijuana was 15.57 grams. Additionally, he testified that the gross weight of the

cocaine was 3.42 grams. Sergeant Gilley estimated that the marijuana found in the rental

vehicle was worth between $500 and $600 and that the cocaine was worth between

$1,000 and $3,000. Sergeant Gilley stated that drug dealers frequently carried weapons

to discourage individuals from stealing proceeds of drug sales or the controlled

substance. Sergeant Gilley testified that, in his opinion, the amount of cocaine that was

recovered from the rental vehicle was not consistent with personal use because cocaine

users do not carry cocaine around. Instead, cocaine users generally purchase smaller

amounts and use the drug rather than carry the drug with them. Sergeant Gilley testified

that, similarly, the amount of marijuana recovered in the rental vehicle was not consistent

with personal use because “most marijuana users that [law enforcement] run[s] into are

not going to run around with over a half ounce of marijuana on them because they know

a half ounce or more of marijuana is a felony.”

Officers also recovered a firearm, three sets of scales, and plastic baggies from the

rental vehicle. Further, Defendant informed Ms. Hays that another inmate stole $1,100

from him at the Madison County Jail, and Mr. Campbell later found $1,070 in a toilet

pipe in the jail. Sergeant Gilley testified that individuals frequently use plastic bags and

digital scales to measure out and package controlled substances for illegal sale and

distribution. Sergeant Gilley also stated that the fact that Defendant had over $1,000 in

his possession in the Madison County Jail indicated that Defendant had recently sold

some drugs. When the evidence is viewed in the light most favorable to the State, we

conclude that the State presented sufficient evidence for a rational juror to find Defendant

guilty of possessing cocaine and marijuana with the intent to sell or distribute the

controlled substances beyond a reasonable doubt. Defendant is not entitled to relief on

this ground.

Unlawful possession of a firearm

Defendant was also convicted of four counts of unlawful possession of a firearm

with the intent to go armed during the commission of or attempt to commit a dangerous

felony and one count of unlawful possession of a firearm after being convicted of a

felony involving the attempted use of force, violence, or a deadly weapon.

“It is an offense to possess a firearm with the intent to go armed during the

commission of or attempt to commit a dangerous felony.” Tenn. Code Ann. § 39-17-

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1324(a) (2016). Dangerous felonies include “a felony involving the sale, manufacture,

distribution or possession with intent to sell, manufacture or distribute a controlled

substance.” Tenn. Code Ann. § 39-17-1324(i)(1)(L) (2016). “A person commits an

offense who unlawfully possesses a firearm, as defined in [section] 39-11-106, and[] . . .

[h]as been convicted of a felony involving the use or attempted use of force, violence, or

a deadly weapon[.]” Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2016). “Crime of

violence” includes aggravated robbery. Tenn. Code Ann. § 39-17-1301(3) (2016).

We conclude that there was sufficient evidence for a rational juror to find

Defendant guilty of possessing a firearm during the commission of a dangerous felony,

i.e., the possession of more than one-half gram of cocaine and one-half ounce to ten

pounds of marijuana with the intent to sell or deliver, in counts five through eight. We

have previously concluded that the evidence was sufficient to support Defendant’s

convictions for possession of marijuana and cocaine with the intent to sell or deliver.

Sergeant Gilley observed Defendant exit the driver’s seat of the rental vehicle in the Mall

parking lot. Later, Sergeant Gilley found a Glock handgun with a laser sight under the

driver’s seat when he searched the rental vehicle. Additionally, Mr. Simpson testified

that Defendant purchased a laser sight at Gander Mountain in March. Mr. Simpson

recalled that he assisted Defendant by installing the laser sight onto a Glock handgun.

When viewed in the light most favorable for the state, this evidence is sufficient for a

rational juror to have found that Defendant possessed the Glock handgun that was found

in the rental vehicle.

Further, it was within the province of the jury to infer that Defendant possessed

the Glock firearm with the intent to go armed while he was selling or delivering

controlled substances. As we have set out above, the jury could have inferred that

Defendant was selling or had recently sold drugs based on the quantity of the cocaine and

marijuana found in the vehicle, the drug paraphernalia such as baggies and scales that

officers recovered from the vehicle, as well as Defendant’s report that another inmate

stole over $1,000 in cash from him while in the Madison County Jail. Additionally,

Sergeant Gilley testified that drug dealers frequently carry firearms when they engage in

the sale or delivery of controlled substances to protect themselves.

The evidence was also sufficient for a rational juror to find Defendant guilty of

possessing the Glock firearm while having been previously convicted of aggravated

robbery. Prior to trial, Defendant and the State stipulated that Defendant was convicted

of aggravated robbery in 2004. As we have previously stated, it was the jury’s

prerogative to infer that Defendant, as the driver of the vehicle, possessed the Glock

firearm that was found under the driver’s seat. Defendant is not entitled to relief on this

ground.

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Possession of drug paraphernalia

To convict Defendant of possession of drug paraphernalia, the State must have

established the following essential elements: “(1) that the defendant possessed an object;

(2) that the object possessed was classifiable as drug paraphernalia; and (3) that the

defendant intended to use that object for at least one of the illicit purposes enumerated in

the statute.” State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001) (citing Tenn. Code Ann. §

39-17-425(a)(1)). The “illicit purposes” outlined in section 39-17-425(a)(1) include the

following, in pertinent part: to “process, prepare, test, analyze, pack, repack, store,

contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a

controlled substance[.]” Tenn. Code Ann. § 39-17-425(a)(1) (2016). In Ross, the

supreme court determined that the evidence was sufficient for a rational juror to have

found that the defendant used “electronic scales and plastic sandwich bags” as drug

paraphernalia. Ross, 49 S.W.3d 846.

Similarly, we conclude that the evidence was sufficient for a rational juror to have

found Defendant guilty of possession of drug paraphernalia beyond a reasonable doubt

based on his possession of three sets of scales and plastic baggies in the rental vehicle.

Sergeant Gilley testified that individuals frequently use plastic bags and digital scales to

measure out and package controlled substances for illegal sale and distribution. We have

previously concluded that the evidence was sufficient for a rational juror to have found

Defendant guilty beyond a reasonable doubt of possession of marijuana and cocaine with

the intent to sell or deliver. Based on the evidence and Sergeant Gilley’s testimony, it

was within the province of the jury to infer that Defendant possessed the scales and

baggies for the purpose of measuring and bagging the controlled substances for the

purposes of selling or delivering the substances. Further, it was the jury’s prerogative as

the factfinder to discredit Mr. Burns’ testimony and to find that Defendant possessed the

scales and baggies. We will not overturn the jury’s factual findings on appeal. Bland,

958 S.W.2d 659. Defendant is not entitled to relief on this ground.

Evading arrest

“[I]t is unlawful for any person to intentionally conceal themselves or flee by any

means of locomotion from anyone the person knows to be a law enforcement officer if

the person[] . . . [k]nows the officer is attempting to arrest the person[.]” Tenn. Code

Ann. § 39-16-603(a)(1)(A) (2016). Investigator Cornelison testified that he and the other

officers were looking for Defendant to execute an arrest warrant from Texas. The

officers located Defendant at the Mall. As Defendant walked into the Mall, Investigator

Cornelison “walked in behind him attempting to catch up to him[.]” Defendant turned

around, observed that Investigator Cornelison was following him, and “he took off

running.” Investigator Cornelison yelled, “Stop. Stop. Police.” Additionally,

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Investigators Cornelison and Foster wore vests marked “police” when they attempted to

arrest Defendant on the active Texas warrants. This evidence is sufficient for a rational

juror to have found Defendant guilty of evading arrest beyond a reasonable doubt.

Defendant is not entitled to relief on this ground.

The State’s impeachment of Mr. Burns

Defendant also argues that the trial court erred in allowing the State to impeach

Mr. Burns’s credibility under Tennessee Rule of Evidence 608(b) by questioning him on

cross-examination about Mr. Burns’s pending criminal charges. He states that “[t]he

actions of the State in informing the jury of [Defendant]’s incarceration, questioning Mr.

Burns about murdering a TB1 agent during a drug transaction, and invoking prejudice

with the jury by mentioning the fact that the TBI agent had children eliminated any

chance [Defendant] had to receive a fair trial.” The State responds that “[t]he trial court

properly allowed the State to impeach Mr. Burns’s testimony by asking him about his

pending first-degree murder charge” and that, “[a]lternatively, any error that resulted

from the State’s questioning was harmless.”

During the State’s cross-examination of Mr. Burns, the State asked Mr. Burns if he

sold drugs and if he was good friends with Defendant. Mr. Burns responded

affirmatively to both questions. Mr. Burns also agreed that he had been previously

incarcerated with Defendant. Defense counsel objected when the State asked Mr. Burns

if he was incarcerated pending his trial for the first degree murder of a TBI agent. During

a jury-out hearing, the State argued that it could impeach Mr. Burns’s credibility because

the allegations of attempted aggravated robbery and first degree murder were specific

acts of conduct that were probative of Mr. Burns’s character for untruthfulness under

Tennessee Rule of Evidence 608(b). Defense counsel argued that the State could not

impeach Mr. Burns on pending charges. The State informed the trial court of its theory

that Mr. Burns testified that he owned the contraband in the rental vehicle because Mr.

Burns “face[d] little to no repercussions because of the nature of the charges he face[d].”

The trial court examined Rule 608 and noted that the objection related to the testimony of

a fact witness, not Defendant or a character witness. The trial court found that the State

had established a reasonable factual basis for the inquiry into Mr. Burns’s alleged specific

acts of conduct.7 The trial court also held that the State could cross-examine Mr. Burns

on “the ability of . . . Defendant and [Mr. Burns] to communicate on a regular basis

regarding the issue of [Mr. Burns]’s testimony.”

7

The State’s evidence of Mr. Burns’s alleged criminal acts was based on a video recording from

the TBI agent’s dash camera. The recording depicts Mr. Burns’s alleged attempted aggravated robbery

and murder of the TBI agent during a controlled drug buy.

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After the trial court viewed the State’s video evidence of Mr. Burns’s alleged

attempted aggravated robbery and first degree murder, the trial court stated the following:

The [c]ourt having again reviewed 608(b) and the criteria that must

be considered by the [c]ourt for purposes of allowing impeachment and

questioning regarding the prior bad acts, the [c]ourt finds that the cross-

examination will be proper under the circumstances that the alleged acts

that have been brought before the [c]ourt dealing with the attempted

aggravated robbery resulting in the death of an individual in this case

certainly have probative value of untruthfulness. They deal with dishonesty

and deceit when it comes to the attempted aggravated robbery. The

shooting was just a result of that as part of the factual circumstances that

occurred just in the chain of events. So I’ll allow cross-examination.

During a later exchange in the State’s cross-examination of Mr. Burns, the State

asked Mr. Burns why he was currently incarcerated. Mr. Burns responded “[f]or first

degree murder[,]” and the State asked, “And that’s the first degree murder of a TBI

special agent, isn’t it?” Mr. Burns agreed. The State then asked Mr. Burns if the murder

occurred while he attempted to sell drugs to the TBI agent. Defense counsel objected on

the ground that the State had previously asked Mr. Burns about his current incarceration,

and Mr. Burns had answered the question. The trial court ruled that the State could “ask,

and then move on.” Mr. Burns agreed that he attempted to sell drugs to the TBI agent

and then pulled his gun and attempted to rob the agent. The agent pulled out his gun and

Mr. Burns shot him.

Tennessee Rule of Evidence 608(b) provides the following:

(b) Specific Instances of Conduct. Specific instances of conduct of a

witness for the purpose of attacking or supporting the witness’s character

for truthfulness, other than convictions of crime as provided in Rule 609,

may not be proved by extrinsic evidence. They may, however, if probative

of truthfulness or untruthfulness and under the following conditions, be

inquired into on cross-examination of the witness concerning the witness’s

character for truthfulness or untruthfulness or concerning the character for

truthfulness or untruthfulness of another witness as to which the character

witness being cross-examined has testified. The conditions which must be

satisfied before allowing inquiry on cross-examination about such conduct

probative solely of truthfulness or untruthfulness are:

(1) The court upon request must hold a hearing outside the

jury’s presence and must determine that the alleged conduct has

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probative value and that a reasonable factual basis exists for the

inquiry;

(2) The conduct must have occurred no more than ten years

before commencement of the action or prosecution, but evidence of

a specific instance of conduct not qualifying under this paragraph (2)

is admissible if the proponent gives to the adverse party sufficient

advance notice of intent to use such evidence to provide the adverse

party with a fair opportunity to contest the use of such evidence and

the court determines in the interests of justice that the probative

value of that evidence, supported by specific facts and

circumstances, substantially outweighs its prejudicial effect[.]

Tenn. R. Evid. 608(b)(1)-(2).

During a jury-out hearing, the trial court found that the evidence of Mr. Burns’s

alleged attempted aggravated robbery and first degree murder charges was probative of

Mr. Burns’s character for truthfulness or untruthfulness. The trial court found that there

was a factual basis for the State’s impeachment of Mr. Burns’s character for truthfulness

based on the video recording of the controlled buy that led to Mr. Burns’s alleged

attempted aggravated robbery and first degree murder of an undercover TBI agent. Mr.

Burns’s alleged criminal conduct occurred on August 9, 2016, which was less than ten

years prior to the commencement of prosecution against Defendant on the current

offenses. The trial court properly focused on the probative value of Mr. Burns’s alleged

criminal conduct and how “the attempted aggravated robbery result[ed] in the death of an

individual”; the trial court noted that the attempted aggravated robbery involved

“dishonesty and deceit” and “[t]he shooting was just a result of that as part of the factual

circumstances that occurred just in the chain of events.” We also note that the trial court

was not required by the Tennessee Rules of Evidence to weigh the probative value of the

specific acts of conduct at issue with the prejudice to Defendant because the acts occurred

less than ten years prior to Defendant’s charges in this case. See Tenn. R. Evid.

608(b)(2).

We must also address Defendant’s argument that he was denied a fair trial because

the State implied that Defendant had previously been incarcerated on the current charges

by asking Mr. Burns if he had been housed in the same cell as Defendant. When

Defendant objected during the State’s cross-examination of Mr. Burns, the trial court

ruled that the State could ask Mr. Burns whether he had been housed with Defendant so

that the State could pursue its theory that Mr. Burns had access to Defendant’s discovery

materials and Defendant and Mr. Burns created Mr. Burns’s testimony and affidavit

while they were housed together. We note that, after the trial court’s ruling, Defendant

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did not object when the State asked Mr. Burns whether he was housed with Defendant or

when the State called Captain Wilson as a rebuttal witness to set out the exact dates that

Defendant and Mr. Burns were housed together at the Madison County Jail. To the

extent that Defendant is attempting to raise a separate claim that he was denied a fair

trial, we conclude that this claim is waived for failure to cite to any authority. See Tenn.

Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to

authorities, or appropriate references to the record will be treated as waived in this

court.”). In any event, this court has previously noted that the improper admission of

evidence that is cumulative to evidence already admitted is harmless error. See State v.

Elisa Cochran, No. 03C01-9708-CR-00353, 1998 WL 783343, at *7 (Tenn. Crim. App.

Nov. 3, 1998), perm. app. denied (Tenn. May 10, 1999). Thus, we conclude that the trial

court properly allowed the State to cross-examine Mr. Burns about the alleged attempted

aggravated robbery and first degree felony murder.

Excessive sentence

Lastly, Defendant argues that the trial court erred in ordering him to serve an

excessive sentence. He asserts that he should have received the minimum sentence for

each count and that the trial court should have ordered him to serve his sentences

concurrently. The State responds that the trial court properly exercised its discretion by

ordering Defendant to serve sentences above the statutory minimum and by ordering

partially consecutive sentence alignment.

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

appropriate range that reflects 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). A finding of abuse of discretion “‘reflects that the trial court’s logic

and reasoning was improper when viewed in light of the factual circumstances and

relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,

555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

In determining the proper sentence, the trial court must consider: (1) the evidence,

if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the

principles of sentencing and arguments as to sentencing alternatives; (4) the nature and

characteristics of the criminal conduct involved; (5) evidence and information offered by

the parties on the mitigating and enhancement factors set out in Tennessee Code

Annotated sections 40-35-113 and -114; (6) any statistical information provided by the

administrative office of the courts as to sentencing practices for similar offenses in

Tennessee; and (7) any statement the defendant made in the defendant’s own behalf

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about sentencing. See Tenn. Code Ann. § 40-35-210(b)(1)-(7) (2017); State v. Taylor, 63

S.W.3d 400, 411 (Tenn. Crim. App. 2001).

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) (2017); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in

the articulation of the reasons for imposing a particular sentence . . . should not negate the

presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging

the sentence on appeal bears the burden of establishing that the sentence was improper.

Tenn. Code Ann. § 40-35-401 (2017), Sentencing Comm’n Cmts.

Sentence Length

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

(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) (2017). The trial court must also consider the potential

or lack of potential for rehabilitation or treatment of the defendant in determining the

sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103(5)

(2017).

Although the trial court should also consider enhancement and mitigating factors,

such factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2017); see also Bise,

380 S.W.3d at 698 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

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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.

Although our supreme court has not specifically held whether the Bise standard of

review applies to misdemeanor sentencing, it has held that “[t]he abuse of discretion

standard, accompanied by a presumption of reasonableness, is the appropriate standard of

appellate review for all sentencing decisions.” State v. Pollard, 432 S.W.3d 851, 864

(Tenn. 2013). Accordingly, we conclude that the Bise standard is the appropriate

standard of review in misdemeanor sentencing cases. See State v. Clifford Eric Marsh,

No. M2015-00803-CCA-R3-CD, 2016 WL 349928, at *3 (Tenn. Crim. App. Jan. 28,

2016), no perm. app. filed; see also State v. Sue Ann Christopher, No. E2012-01090-

CCA-R3-CD, 2013 WL 1088341, at *7 (Tenn. Crim. App. Mar. 14, 2013), perm. app.

denied (Tenn. June 18, 2013).

When sentencing a defendant for a misdemeanor conviction, the trial court may

conduct a separate sentencing hearing or “allow the parties a reasonable opportunity to be

heard on the question of the length of any sentence and the manner in which the sentence

is to be served.” Tenn. Code Ann. § 40-35-302(a) (2017). The trial court must impose a

sentence consistent with the purposes and principles of our sentencing act. Tenn. Code

Ann. § 40-35-302(b) (2017). “In imposing a misdemeanor sentence, the [trial] court shall

fix a percentage of the sentence that the defendant shall serve.” Tenn. Code Ann. § 40-

35-302(d) (2017). “In determining the percentage of the sentence to be served in actual

confinement, the [trial] court shall consider the purposes of this chapter, the principles of

sentencing and the enhancement and mitigating factors set forth in this chapter and shall

not impose such percentages arbitrarily.” Tenn. Code Ann. § 40-35-302(d) (2017). A

defendant convicted of a misdemeanor is not entitled to a presumption of a minimum

sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). The trial court

is not required to place its specific findings in ordering a misdemeanor sentence on the

record. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). “Misdemeanor

sentencing is designed to provide the trial court with continuing jurisdiction and a great

deal of flexibility.” State v. Combs, 945 S.W. 2d 770, 774 (Tenn. Crim. App. 1996).

Here, the trial court ordered in-range sentences for each of Defendant’s felony

convictions. Possession of one-half gram or more of cocaine with the intent to sell or

deliver is a Class B felony. Tenn. Code Ann. § 39-17-417(c)(1) (2016). A Range II

sentence for a Class B felony is twelve to twenty years, and Defendant received a

sentence of eighteen years each in counts one and two. Tenn. Code Ann. § 40-35-

112(b)(2) (2017). Possession of one-half ounce to ten pounds of marijuana with the

intent to sell or deliver is a Class E felony. Tenn. Code Ann. § 39-17-417(g)(1) (2016).

A Range II sentence for a Class E felony is two to four years, and Defendant received a

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sentence of four years each in counts three and four. Tenn. Code Ann. § 40-35-112(b)(5)

(2017).

Unlawful possession of a firearm with the intent to go armed during the

commission of or attempt to commit a dangerous felony is a Class D felony, and the trial

court is required by statute to impose a minimum sentence of five years. Tenn. Code

Ann. § 39-17-1324(g)(2) (2016). A Range II sentence for a Class D felony is four to

eight years, and Defendant received a sentence of eight years each in counts five through

eight. Tenn. Code Ann. § 40-35-112(b)(4) (2017). Unlawful possession of a firearm

after being convicted of a felony involving the attempted use of force, violence, or a

deadly weapon is a Class C felony. Tenn. Code Ann. § 39-17-1307(b)(2) (2016). A

Range II sentence for a Class C felony is six to ten years, and Defendant received a

sentence of eight years in count nine. Tenn. Code Ann. § 40-35-112(b)(4) (2017).

Because the trial court ordered Defendant to serve within-range felony sentences, we

apply a presumption of reasonableness to the trial court’s sentencing decisions, and we

will not reverse absent an abuse of discretion.

Evading arrest is a Class A misdemeanor. Tenn. Code Ann. § 39-16-603(a)(1)(A)

(2016). Possession of drug paraphernalia is also a Class A misdemeanor. Tenn. Code

Ann. § 39-17-425(a)(2) (2016). Defendant received a sentence of eleven months and

twenty-nine days for each of his sentences in counts ten and eleven. We will also

presume that these misdemeanor sentences are reasonable and will not reverse the trial

court’s decision absent an abuse of discretion.

The trial court considered the factors required by section 40-35-210 and found that

several enhancement factors applied to Defendant’s convictions: (1) that Defendant

previous history of criminal convictions or criminal behavior, in addition to those needed

to establish Defendant’s sentencing range; (2) that Defendant possessed or employed a

firearm during the commission of the offense, which the trial court applied to counts one

through four; and (3) that Defendant was released on bond from his Texas charges during

the commission of the current offenses. See Tenn. Code Ann. § 40-35-114(1), (9),

(13)(A) (2017). The trial court also applied one mitigating factor—that Defendant’s

criminal conduct neither caused nor threatened serious bodily injury. See Tenn. Code

Ann. § 40-35-113(1) (2017).

Although Defendant argues that he should have received the minimum sentence

within each range, he does not present any specific argument that the trial court erred in

apply one or more of the enhancement factors. Regardless, we conclude that the

evidence presented at the sentencing hearing supports the trial court’s enhancement of

Defendant’s sentences based on section 40-35-114(1) and (9). However, the trial court

improperly relied on section 40-35-114(13)(A) because the State did not introduce

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evidence that Defendant was “ultimately convicted of the prior misdemeanor or

felony[,]” third degree felony assault strangulation or suffocation in Texas, as required by

the Sentencing Act. See Tenn. Code Ann. § 40-35-114(13)(A) (2017) (“At the time the

felony was committed, . . . [the defendant was] [r]eleased on bail or pretrial release, if the

defendant is ultimately convicted of the prior misdemeanor or felony[.]”). In any event,

the trial court’s reliance on enhancement or mitigating factors are advisory only, and the

trial court properly found that other enhancement factors applied to Defendant’s

convictions. The trial court did not abuse its discretion by enhancing Defendant’s

sentences within the appropriate statutory range. See Bise, 380 S.W.3d at 706.

Consecutive sentence alignment

In Pollard, the Tennessee Supreme Court expanded its holding in Bise to trial

courts’ decisions regarding consecutive sentencing. Pollard, 432 S.W.3d at 859.

Tennessee Code Annotated section 40-35-115 sets forth different criteria for the

imposition of consecutive sentencing, including the following:

(1) The defendant is a professional criminal who has knowingly

devoted the defendant’s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is

extensive;

....

(4) The defendant is a dangerous offender whose behavior indicates

little or no regard for human life and no hesitation about committing a

crime in which the risk to human life is high[.]

Tenn. Code Ann. § 40-35-115(b)(1), (2), (4) (2017). Any one ground set out in the above

statute is “a sufficient basis for the imposition of consecutive sentences.” Pollard, 432

S.W.3d 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)).

Section 40-35-115(b)(2) has been interpreted “to apply to offenders who have an

extensive history of criminal convictions and activities, not just to a consideration of the

offenses before the sentencing court.” State v. Palmer, 10 S.W.3d 638, 647-49 (Tenn.

Crim. App. 1999). Additionally, “an extensive record of criminal activity may include

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criminal behavior which does not result in a conviction.” State v. Koffman, 207 S.W.3d

309, 324 (Tenn. Crim. App. 2006).

Before a trial court may impose consecutive sentences on the basis that a

defendant is a dangerous offender, the trial court must also find “that an extended

sentence is necessary to protect the public against further criminal conduct by the

defendant and that the consecutive sentences . . . reasonably relate to the severity of the

offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). In order to

limit the use of the “dangerous offender” category to cases where it is warranted, our

supreme court has stated that the trial court must make specific findings about “particular

facts” which show that the Wilkerson factors apply to the defendant. State v. Lane, 3

S.W.3d 456, 461 (Tenn. 1999).

Here, the trial court properly noted that, by statute, counts five through eight were

to be served consecutively to counts one through four. See Tenn. Code Ann. § 39-17-

1324(e)(1) (2017). Regarding count nine, the trial court determined that Defendant was

“a professional criminal who has knowingly devoted [his] life to criminal acts as a major

source of livelihood[,]” and ordered Defendant to serve count nine consecutively to count

five. The trial court based this finding on the current case as well as Defendant’s “whole

criminal history[.]” The trial court also found that Defendant was “an offender whose

record of criminal activity [wa]s extensive” and that Defendant was “a dangerous

offender whose behavior indicate[d] little or no regard for human life and no hesitation

about committing a crime in which the risk to human life [wa]s high[.]” The trial court

found that “[t]he circumstances surrounding the commission of the offense[s] [were]

aggravated” and that “the aggregate length of the sentence reasonably relate[d] to the

offense[s] of which . . . Defendant [was] convicted.”

We conclude that the trial court did not abuse its discretion by ordering Defendant

to serve his sentence for count nine consecutively to his sentence for count five. The

record supports the trial court’s finding that Defendant was a professional criminal.

Defendant’s current offenses include possession of cocaine and marijuana with the intent

to sell or deliver, and Sergeant Gilley estimated that the marijuana found in the rental

vehicle was worth $500 to $600 and that the cocaine was worth $1,000 to $3,000.

Additionally, Defendant reported to Ms. Hays that another inmate stole over $1,000 from

him, which the jury could have inferred were profits from recent drug sales.

Additionally, the presentence report reflected that Defendant had no verified

employment. Regarding Defendant’s extensive history of criminal behavior, Defendant

was wanted in Texas on a charge of third degree felony assault strangulation or

suffocation when he committed the eleven offenses at issue in this case. Additionally,

Defendant was previously convicted of aggravated assault, aggravated robbery, and

driving on a suspended license. Regarding the trial court’s application of the “dangerous

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offender” factor, the trial court made the findings required by Wilkerson, and the record

supports the trial court’s imposition of that factor. The trial court did not abuse its

discretion by ordering Defendant to serve his sentence in count nine consecutively to his

sentence in count five.

III. Conclusion

After a thorough review of the facts and applicable case law, we affirm the trial

court’s judgments.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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