State of Tennessee v. James Clark McKenzie

06/23/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 25, 2022

STATE OF TENNESSEE v. JAMES CLARK MCKENZIE

Appeal from the Criminal Court for Knox County

No. 117046 G. Scott Green, Judge

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No. E2021-00445-CCA-R3-CD

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Defendant, James Clark McKenzie, was convicted by a jury of possession with the intent

to sell, deliver, or manufacture more than 0.5 grams of cocaine within 1,000 feet of a drug-

free zone, unlawful possession of a firearm by a person previously convicted of a felony

drug offense, unlawful possession of a firearm by a person previously convicted of a violent

felony, possession of a firearm with the intent to go armed during the commission of a

dangerous felony, and tampering with the evidence. The trial court imposed a total

effective sentence of fifteen years. On appeal, Defendant contends the evidence is

insufficient to support his conviction for possession with the intent to sell more than 0.5

grams of cocaine within a drug-free zone and that the trial court erred in sentencing him

under the 2019 version of the Drug-Free School Zone Act. Following our review of the

record and the briefs of the parties, we affirm the judgments of the trial court. However,

we conclude that the trial court erroneously sentenced Defendant in count two, possession

of a firearm by a person with a previous felony drug conviction, and remand for entry of

an amended judgment as to that count only.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Criminal Court

Affirmed in Part; Reversed in Part; Remanded

JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT

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

J. Liddell Kirk, Madisonville, Tennessee, (on appeal), and Clinton Frazier, Maryville,

Tennessee (at trial), for the appellant, James Clark McKenzie.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney

General; Charme P. Allen, District Attorney General; and Larry Dillon, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

This case arose when officers of the Knox County Police Department and the

Special Operations Squad executed a search warrant of Defendant’s residence at 2300

Center Avenue in Knoxville. The search yielded drugs, drug distribution paraphernalia, a

semi-automatic rifle with a silencer, ammunition for the rifle and a loaded magazine for

another firearm.

A Knox County Grand Jury entered a true bill charging Defendant with possession

with the intent to sell, deliver, or manufacture more than 0.5 grams of cocaine within 1,000

feet of a park, a Class B felony; possession of a firearm by a person with a felony drug

conviction, a Class C felony; possession of a firearm by a person with a felony crime of

violence, a Class B felony; possession with the intent to go armed during the commission

of a dangerous felony, to-wit: possession with the intent to sell, deliver, or manufacture

cocaine, a Class D felony; and evidence tampering, a Class C felony. Defendant was also

charged with three counts of the criminal gang enhancement statute. The trial transcript

reflects that after resting its case, the State announced its decision not to proceed on the

gang enhancement counts.

Trial – November 9-10, 2020

Donna Roach, a tech office manager for the Knoxville/Knox County Geographic

Information System, testified that she prepared two maps with a 1,000 feet buffer around

2300 Center Avenue. The maps were received as an exhibit. Located within the buffer of

2300 Center Avenue was the Walter P. Taylor Recreation Center and the Williams Creek

Urban Forest Park. On cross-examination, Ms. Roach acknowledged that the recreation

center has since been torn down, but that the park still exists.

Monica Crutcher, superintendent of the Knoxville Parks and Recreation

Department, testified that the Williams Creek Urban Forest Park fell under her supervision.

Superintendent Crutcher identified the park on one of the maps prepared by Ms. Roach and

confirmed the accuracy of the park’s location and its existence in May 2019. Ms. Crutcher

was aware that the recreation center had been torn down but could not recall when and

whether it was still standing on May 28, 2019.

Officer Jacob Wilson of the Knoxville Police Department (“KPD”) had worked

multiple stints in the Organized Crime Unit where he investigated “street level, mid-level,

and upper-level drug crimes[.]” Officer Wilson testified that he received specialized

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training in undercover drug operation from the KPD, the Tennessee Bureau of Investigation

(“TBI”), Law Enforcement Training Associates, and the Tennessee Gang Investigators

Association, conducted multiple undercover operations with both state and federal law

enforcement agencies, and was involved in sixty-three cases which led to the issuance and

execution of twenty-five search warrants.

In May 2019, Officer Wilson, with the assistance of a confidential informant, had

the residence located at 2300 Center Avenue under surveillance. Based on information

obtained from the surveillance, Officer Wilson obtained a warrant to search the residence.

The warrant was executed on May 28, 2019, around 1:30 p.m. by Officer Wilson and

officers of the Special Operations Squad of the KPD, more commonly referred to as the

“SWAT Team.” As they approached the residence, Officer Wilson observed Defendant

first standing in the threshold of the open front doorway and then fleeing to the interior of

the residence. The SWAT team entered the residence and followed Defendant inside the

house while Officer Wilson maintained a position outside. Defendant was arrested in the

open doorway of the only bathroom in the house. Once Defendant was secured and the

residence was cleared of any occupants, Officer Wilson entered the residence and took

photographs. The residence was a two-bedroom house. One of the bedrooms was used for

storage. The second bedroom appeared to be used as a bedroom and contained photographs

of Defendant and men’s clothing in the closet.

Officer Wilson identified the items that were seized during the search in a series of

photographs which were exhibited to the jury. Among the items were a white powder

substance in a plastic bag which tested positive for cocaine in a field test; a black, AR-15

rifle with a loaded 30-round magazine; a .45 caliber loaded magazine for a Smith & Wesson

handgun; a black digital scale with powder residue; and a metal measuring spoon with

powder residue.

Officer Wilson explained the significance of finding powder residue on the digital

scale and the measuring spoon:

That’s evidence, in my training and experience, that both of those items have

been used as drug distribution paraphernalia. It’s common for drug

distributors to weigh out quantities of whatever substance that they’re selling

prior to packaging it or prior to selling it so that they know exactly what

weight that they’re selling to a customer.

Also, the measuring spoon is typically used to measure out various quantities

of drugs, including cocaine, whether that – that measurement is being placed

into water with baking soda to be made into crack cocaine or measuring out

powder itself to be weighed on the scale. So, it’s significant that both of

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those had the powdery residue on it to – to show evidence that – that they’ve

been used in the distribution of cocaine.

The measuring spoon and the plastic bag with the white powdery substance were

found on the floor near the bathroom where Defendant was taken into custody. The bag

with the white powdery substance was later weighed on a digital scale at the KPD

Organized Crime Unit office and its gross weight was 15.7 grams. Officer Wilson

explained that the amount of the cocaine in the plastic bag suggested a distribution amount

because it was large enough to be divided into smaller amounts for sale.

Officer Wilson testified that a number of small empty plastic bags were found in the

toilet bowl. He testified that sellers use bags to package drugs for sale. He explained how

plastic bags are used differently by a seller and a user:

Typically, when you see large quantities of these baggies, especially when

they are empty, it’s indicative that this person possesses this paraphernalia

with the intent to package some sort of narcotic or some sort of controlled

substance to – to sell it. We can find these baggies with someone who has

used, but typically it’s a single baggie or maybe one or two that have been

discarded in a vehicle that contain residue in it from where they’ve purchased

that inside that baggie, used the contents of it, consumed the contents of its,

and then discarded it. These all were unused baggies or appeared to be

unused baggies in a large quantity.

Based on his experience and training, Officer Wilson opined that the plastic bags

were discarded in an attempt to destroy evidence:

It appears that there’s some of them that have already made it down the toilet.

And actually, when we entered the residence, the – the toilet was running.

So, it had just been flushed. So, it’s my belief, based upon that and the other

drug paraphernalia or drug distribution paraphernalia evidence that’s lying

in and around the toilet now, that – that there were other substances or other

items that were discarded or destroyed by flushing it down the toilet before

we made entry and secured the Defendant.

In terms of the rifle and ammunition found in the residence, Officer Wilson testified

that the AR-15 rifle was found in the closet of the bedroom which contained photographs

of Defendant and men’s clothing. The rifle was affixed with a silencer and a bipod and

was loaded with a 30-round magazine in its well and a bullet in the chamber. The cartridges

in the rifle magazine were “double stacked” in a side-by-side configuration. A magazine

cartridge for a Smith & Wesson handgun was found in the same closet as the rifle. The

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magazine was inside a man’s tennis shoe and contained fourteen rounds. A Smith &

Wesson handgun was not found in the residence.

Following the search, Officer Wilson and Detective Bruce Conky interviewed

Defendant at the police station. Detective Conky was a task force officer in the Drug

Enforcement Agency who retired prior to Defendant’s trial. Officer Wilson testified that

Defendant waived his rights and agreed to give a statement which was recorded on a video

device at the police station. Defendant’s redacted statement was played to the jury during

Officer Wilson’s testimony.

The recording shows Defendant seated with his hands cuffed behind his back talking

to a man later identified as Detective Conky. Defendant tells Detective Conky that “I really

want to talk to you about some s***.” Detective Conky assures Defendant that he wants

to talk to him “about anything” but that he needs to wait for Defendant to first be advised

of his rights so that “everything is straightforward.” Officer Wilson enters the room and

Detective Conky asks him if he has the search warrant because Defendant “wanted to see

it.” Officer Wilson re-cuffs Defendant’s hands in front so he can be seated more

comfortably. Defendant reads the warrant, questions its validity and asks what was found

in his residence during the search. Officer Wilson advises Defendant that over half ounce

of cocaine and a rifle were found in the search. As Officer Wilson begins advising

Defendant of his rights, Defendant joins in and recites the rights along with Officer Wilson.

Officer Wilson advises Defendant to listen instead and respond when asked about each

right. The recording is “paused” for a redacted portion and when it resumes, Detective

Conky is heard asking Defendant the going rate for an ounce. Defendant responds, “about

$1,300.”

During the course of the interview, Detective Conky tries to elicit information about

Defendant’s supplier. Defendant expresses concern about his supplier and is unwilling to

call his supplier in a controlled call from the police station. Defendant eventually replies

that he got the drugs from “Doug” . . . a dude from Atlanta.” Defendant states that he and

“Doug” used to live together and at one time, Defendant had leased the house at 2300

Center Avenue to “Doug.” Defendant admits that “Doug” will supply him with “whatever

I want.” He reveals that he “can get a kilo for $7,000,” including “ice” and “H.” When

Detective Conky asks why there is a great interest in “ice,” Defendant explains that “dogs

can’t smell ‘ice.’”

During the interview, Defendant repeatedly asks the officers “what are you going to

do for me?” Officer Wilson explains that they need to verify any information Defendant

provides. Defendant states that he is “100% real” in talking to the officers. Defendant

expresses that he is fearful that talking to the officers might “get him killed” because “you

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took my rifle (during the search).” Defendant states that “Doug” had his cousin “killed.”

Detective Conky tells Defendant that he cannot promise Defendant anything.

As for the rifle, Defendant tells the officers that he purchased it from three men

“maybe an hour or two” before the search. The rifle was purportedly used in a robbery

where someone was killed. At least one of the men who sold him the rifle was in the house

when law enforcement arrived to execute the search warrant. Defendant states that the man

“weaseled out the back door.” Defendant indicates that he does not know what a suppressor

is and maintains that he had “never” used the rifle and adds that he does not carry guns or

keep any in his home except for the rifle found in the search. He admits that he purchased

the rifle “to protect himself” if things turn awry “overseas.” Toward the end of the

recording, Defendant admits to flushing the drugs down the toilet when the Special

Operations Squad entered the residence.

After the recorded statement was played to the jury, Officer Wilson testified that the

recording accurately represented the interview and that during the interview, Defendant

provided information consistent with the investigation. Defendant admitted that his

fingerprints would be found on the rifle which he purchased for $300 from a woman right

before the warrant was executed. In addition to the rifle, drugs, and drug distribution

paraphernalia, Officer Wilson testified that he seized four phones. One of the phones was

forensically extracted and was brought to the interview room during Defendant’s interview.

Officer Wilson testified that people involved in an illegal drug enterprise will “take

measures to safeguard their residences beyond what is typically seen with ordinary

citizens.” According to Officer Wilson, such safeguards are commonly used by dealers to

protect their drugs, money, or weapons. In this case, Officer Wilson observed a make-shift

barricade on the back door of Defendant’s residence.

On cross-examination, Officer Wilson acknowledged that he did not know when the

make-shift locking mechanism was installed on the back door and did not recall Defendant

stating when he moved into the house at 2300 Center Avenue. Officer Wilson agreed that

he and Detective Conky were trying to get information about other people during the

interview and that Defendant in fact provided some information that was later corroborated.

He explained that in the video of the interview, he can be seen leaving the interview room

several times to corroborate Defendant’s information.

Officer Wilson agreed that drug dealers can also be users. He stated that in his

experience and training, it is not unusual for a person caught with “a certain amount of

drugs” to claim that the drugs are for personal use. He acknowledged that while a user

may purchase a large amount, doing so is “very uncommon” and based on market value,

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Officer Wilson maintained the amount of cocaine found in Defendant’s house suggested

possession for distribution:

I will agree that while it’s not unheard of [for a person to purchase a large

quantity of a drug for personal use], that it’s very uncommon. Based on my

training and experience and knowledge of drug current trends, prices of

drugs, I know that the half ounce quantity that was recovered from the

residence at 2300 Center Avenue during the execution of our search warrant

has an approximate street value of about $600.00, and that’s going off the

current trend of about $1,200.00 for an ounce of cocaine.

Officer Wilson testified that a cocaine user typically keeps under a gram and will usually

have some kind of device to ingest the cocaine or smoke the cocaine such as a shortened

straw, or a pipe or a soda can fashioned into a pipe. He stated that no such devices were

found in the search of Defendant’s residence. Officer Wilson also agreed that purchasing

a large amount of cocaine will generally discount the price of the drugs per unit and that

“it is a possibility” for a person to purchase a large quantity of drugs if the drugs were of

“higher quality.”

Officer Wilson did not know the weight of the drugs Defendant flushed down the

toilet but based on information learned in Defendant’s interview, he knew that the amount

of what was flushed was larger than the amount that was recovered Officer Wilson

maintained that the amount of cocaine, the paraphernalia used to measure the cocaine, the

rifle and the ammunition suggest that Defendant was operating a drug distribution from his

residence.

The plastic bag with the white powdery substance was submitted to the TBI for

analysis. Special Agent Jacob White, a forensic scientist at the TBI analyzed the substance

and detailed his findings in a report which was exhibited to the jury. Agent White testified

that the substance was cocaine and its net weight was 14.35 grams. On cross-examination,

Agent White stated that the substance was not tested for its purity.

Sergeant Brian Dalton, the forensic firearm and tool mark examiner in the KPD,

examined the rifle, the two magazines, and the cartridges in the magazines. Sergeant

Dalton identified the firearm as an AR-15 platform modern sporting rifle manufactured by

Colt. He indicated that the AR-15 was a civilian copy of the military M16 version because

it was semi-automatic and equipped with a safety feature. He tested the trigger pull of the

AR-15 and confirmed that it met factory specifications. The barrel of the rifle was

equipped with a suppressor or silencer which had no markings such as a serial number, the

name of the manufacturer, and the location of its manufacture. The lack of markings

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suggested that the suppressor was illegal but it was operational. The rifle also had a scope

and was also attached to a bipod.

Sergeant Dalton examined the magazine for the rifle. The magazine was loaded

with fourteen .223 caliber cartridges and had a capacity of thirty cartridges. He test-fired

the rifle and dusted the rifle for fingerprints to determine whether the rifle had been used

in another crime. He confirmed that the rifle was operational as designed and the matching

cartridges in the magazine were functional. The rifle was not connected to other crimes.

Sergeant Dalton also examined a .40 caliber Smith & Wesson pistol magazine which had

the capacity to hold sixteen cartridges. There were fifteen cartridges in this magazine.

Before the State rested its case, the parties made the following stipulation regarding

the two firearm counts:

On May 28, 2019, the Defendant, James Clark McKenzie, had a prior felony

which qualifies under T.C.A. Section 39-17-1307(b)(1)(B).

On May 28, 2019, the Defendant, James Clark McKenzie, had a prior felony

which qualifies under T.C.A. Section 39-17-1307(b)(1)(A).

The trial court instructed the jury that “[t]he fact Mr. McKenzie may have suffered a

conviction at some point in time in his past in no way impairs his presumption of innocence

in this case.” The State thereafter rested its case. Defendant did not testify or offer proof.

Based on the evidence, the jury convicted Defendant as charged in the five counts of the

indictment.

Sentencing – January 11, 2021

Prior to sentencing, the trial court noted that Tennessee Code Annotated section 39-

17-432 was amended effective September 1, 2020, and asked the parties for their position

on which version of the statute was applicable in sentencing Defendant in count one. The

State argued that the earlier version of the statute applied because the amendment did not

indicate “in its silence or in its writing that it’s retroactive.” The trial court questioned

whether the Criminal Savings Clause was applicable, reset the hearing so it could consider

the applicability of the statute in question, and asked the parties to “get me anything and

everything that you can that supports your position on the application of the amendments

to 39-17-432.”

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Sentencing – January 14, 2021

The sentencing hearing resumed and the trial court announced that Defendant was

subject to the earlier version of the statute based on the plain language of Public Chapter

803, section 12 of the Public Act: “This act shall take effect September 1, 2020, the public

welfare requiring it, and applies to offenses committed on or after that date.”

Because no notice for range of punishment had been filed, the trial court applied the

earlier version of Code section 39-17-432 and sentenced Defendant as a Range I offender

in all five counts, imposing an effective fifteen-year sentence: twelve years for possession

with the intent to sell or deliver cocaine, with the first eight years of the sentence to be

served at one-hundred percent, see T.C.A. § 39-17-432(c) (2019) (count one); twelve years

for possession of a firearm with a previous conviction for a violent felony (count three);

three years at one-hundred percent for possession of a firearm during the attempt to commit

a dangerous felony (count four); and six years for evidence tampering (count five). The

trial court did not announce a sentence for unlawful possession of a firearm with a previous

conviction for a drug felony conviction (count two); however, the judgment form for count

two reflects that Defendant was sentenced to twelve years and that count two merged with

count three. The trial court ran all counts concurrently except for the mandatory

consecutive three-year sentence in count four for possession of a firearm with the intent to

go armed during the commission of a dangerous felony. See T.C.A. § 39-17-1324(e)(1)

(2019).

At the hearing on his motion for a new trial, Defendant again challenged his

sentence for the possession with intent to sell within a drug-free zone arguing that the

Criminal Savings Statue applied and he should have been sentenced under the amended

statute. He also argued that the under the amended statute, the park zone was located

beyond 500 feet. The trial court denied this claim based on the plain language of the public

chapter, denied all other claims, and overruled the motion for a new trial. It is from these

judgments that Defendant filed a timely appeal.

Analysis

I. Sufficiency of the Evidence

Defendant contends that the evidence is insufficient to support his conviction for

possession with the intent to sell more than 0.5 grams of cocaine because the cocaine found

in his possession was for his personal use. As supporting proof, he relies on Officer

Wilson’s testimony that it was “not unheard of” for a user to purchase a large amount of

drugs to get a discounted price per unit and to purchase cocaine at greater purity. The State

argues that the evidence shows Defendant possessed the cocaine with the intent to sell

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based on the amount of the cocaine, the presence of materials commonly used to weigh,

measure, and package cocaine, the AR-15 rifle, and Defendant’s confession to Officer

Wilson that he did in fact sell drugs. We agree with the State.

When a defendant challenges the sufficiency of the evidence, this court is obliged

to review that claim according to certain well-settled principles. “A guilty verdict ‘removes

the presumption of innocence and replaces it with a presumption of guilt.’” State v.

Reynolds, 635 S.W.3d 893, 914 (Tenn. 2021) (quoting State v. Gentry, 538 S.W.3d 413,

420 (Tenn. 2017)); State v. Allison, 618 S.W.3d 24, 33 (Tenn. 2021). The burden is then

shifted to the defendant on appeal to demonstrate why the evidence is insufficient to

support the conviction. Allison, 618 S.W.3d at 33; State v. Jones, 589 S.W.3d 747, 760

(Tenn. 2019). The relevant question the reviewing court must answer is whether any

rational trier of fact could have found the accused guilty of every element of the offense

beyond a reasonable doubt. Allison, 618 S.W.3d at 33-34 (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)); see also Tenn. R. App. P. 13(e). This standard of review is

identical whether the conviction is predicated on direct or circumstantial evidence, or a

combination of both.” State v. Williams, 558 S.W.3d 633, 638 (Tenn. 2018) (citing State

v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)).

On appeal, “all reasonable and legitimate inferences from the evidence must be

drawn in favor of the prosecution and all countervailing evidence discarded.” State v.

Weems, 619 S.W.3d 208, 221 (Tenn. 2021) (same standard of review applies when

examining the sufficiency of the evidence and a motion for judgment of acquittal). As

such, this court is precluded from re-weighing or reconsidering the evidence when

evaluating the convicting proof. State v. Stephens, 521 S.W.3d 718, 724 (Tenn. 2017).

Questions concerning the credibility of the witnesses and the weight and value to be given

to evidence, as well as all factual issues raised by such evidence, are resolved by the trier

of fact and not the appellate courts. State v. Miller, 638 S.W.3d 136, 157 (Tenn. 2021);

Allison, 618 S.W.3d at 34. We defer to the jury’s credibility determinations because a jury

is in the best position to assess a witness’s credibility:

The trial judge and the jury see the witnesses face to face, hear their

testimony and observe their demeanor on the stand. Thus the trial judge and

jury are the primary instrumentality of justice to determine the weight and

credibility to be given to the testimony of witnesses. In the trial forum alone

is there human atmosphere and the totality of the evidence cannot be

reproduced with a written record in this Court.

Williams, 558 S.W.3d at 639 (quoting Bolin v. State, 405 S.W.2d 768, 771 (1966)).

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Here, Defendant challenges his conviction for possession with the intent to sell more

than 0.5 grams within a drug-free zone. In Tennessee, “[i]t is an offense for a defendant to

knowingly . . . [p]ossess a controlled substance with intent to manufacture, deliver or sell

the controlled substance.” T.C.A. § 39-17-417(a)(4) (2019). At the time of the instant

offense, the Drug-Free School Zone Act was invoked when the offense occurred within

1,000 feet of a designated drug-free zone. Id. § 39-17-432(b)(1) (2019).

Possession of a controlled substance may be actual or constructive. State v.

Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw, 37 S.W.3d 900, 903

(Tenn. 2001)). The intent of the possession “may be inferred from the amount of a

controlled substance or substances possessed by an offender, along with other relevant facts

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

purpose of selling or otherwise dispensing.” T.C.A. § 39-17-419. Such “other relevant

facts” that can give rise to an inference of intent to sell or deliver include the weight and

street value of the drugs, the packaging of the drugs, the presence of a large amount of

cash, and the presence of weapons. See State v. Nelson, 275 S.W.3d 851, 867 (Tenn. Crim.

App. 2008) (sufficient circumstances from which the jury could reasonably infer that the

defendant intended to sell the cocaine where defendant was spotted in a location known for

illegal drug sales, in possession of cocaine inconsistent with personal use, coupled with

$114 in cash and a check for an unspecified amount); State v. Logan, 973 S.W.2d 279, 281

(Tenn. Crim. App. 1998) (a large amount of cash found in conjunction with several small

bags of cocaine provided sufficient evidence of intent to sell); State v. Brown, 915 S.W.2d

3, 8 (Tenn. Crim. App. 1995) (the absence of drug use paraphernalia and the manner of

packaging of drugs supported an inference of intent to sell); State v. Matthews, 805 S.W.2d

776, 782 (Tenn. Crim. App. 1990) (finding testimony of amount and street value of 30.5

grams of cocaine was admissible to infer an intention to distribute).

Viewing the evidence in the light most favorable to the State, the proof established

that Defendant possessed more than 0.5 grams of cocaine with the intent to sell or deliver

within 1,000 feet of a drug-free zone. First, the white powdery substance in the plastic bag

found next to Defendant’s feet at the time of his arrest constituted cocaine and weighed

14.35 grams. Second, the weight and street value of the cocaine was consistent with the

intent to distribute. Third, Defendant was in possession of paraphernalia commonly used

to measure, weigh, and package drugs for sale or distribution. Specifically, officers found

a digital scale, a metal measuring spoon, and a number of empty plastic bags. Officer

Wilson testified that both the digital scale and the measuring spoon contained powder

residue, which was consistent with both devices having been used to weigh and measure

cocaine for distribution. He also testified that plastic bags are commonly used to package

drugs in smaller units to be sold to users. Moreover, the loaded AR-15, the matching

ammunition, and the makeshift barricade at the back of the house evinced an intent to

safeguard the drugs in the residence. Finally, Defendant admitted in his police interview

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to selling drugs. Such facts, overwhelmingly and convincingly, give rise to the inference

that the cocaine in this case was for distribution, not for personal use.

Defendant argues that Officer Wilson’s testimony supports his claim that a user can

possess a large amount of drugs for personal use. However, Officer Wilson also testified

that in this case, the evidence collected suggested possession of the cocaine for sale.

Officer Wilson also stated that the lack of devices to ingest or smoke the cocaine militated

against possession for personal use. In addition to Officer Wilson’s testimony, the jury

also watched Defendant’s interview wherein he admitted to selling drugs supplied by

“Doug,” and admitted to buying the rifle to protect himself. By their verdict, the jury

concluded that Defendant possessed the cocaine with the intent to sell or deliver.

Defendant does not challenge the jury’s finding that this offense was committed in

a drug-free zone as part of his sufficiency argument. He has instead challenged the Act

with regard to his sentence. In any event, the record supports the jury’s determination that

Defendant possessed the cocaine with the intent to sell or deliver within 1,000 feet of a

park. Defendant is not entitled to relief, and this conviction is affirmed.

II. Sentencing

Defendant contends that the trial court erroneously sentenced him under the Drug-

Free Zone Act (“the Act”) in effect at the time he committed the offense of possession with

the intent to sell or deliver 0.5 grams or more of cocaine within a drug-free zone. He argues

that the Criminal Savings Statute (“Savings Statute”) operates to entitle him to a lesser

punishment because the Act does not expressly preclude its application. The State argues

that the trial court properly sentenced Defendant under the Act at the time the offense was

committed because the plain language of the amended Act’s enabling legislation states that

the amendment only applies to offenses committed on or after September 1, 2020. As for

the Savings Statute, the State argues that the express language of the enabling legislation

of the Act created an exception to the general provision of the Savings Statute. We agree

with the State.

To decide which version of the Act applies to Defendant’s felony drug possession

conviction, we must interpret its language. Issues involving statutory construction present

questions of law which are reviewed de novo with no presumption of correctness.

Kampmeyer v. State, 639 S.W.3d 21, 23 (Tenn. 2022); State v. Keese, 591 S.W.3d 75, 78-

79 (Tenn. 2019); State v. Gibson, 506 S.W.3d 450, 455 (Tenn. 2016); State v. Dycus, 456

S.W.3d 918, 924 (Tenn. 2015). We determine legislative intent from the plain language of

the statute, “read in context of the entire statute, without any forced or subtle construction

which would extend or limit its meaning.” State v. Cauthern, 967 S.W.2d 726, 735 (Tenn.

1998) (quoting State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997). When a statute is plain

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and unambiguous, “we must apply its plain meaning in its normal and accepted use,

without a forced interpretation that would limit or expand the statute’s application.” Davis

v. State, 313 S.W.3d 751, 762 (Tenn. 2010); see also Keese, 591 S.W.3d at 79. In the event

of a conflict, a more specific statutory provision takes precedence over a more general

provision. State v. Welch, 595 S.W. 3d 615, 622 (Tenn. 2020); also Cauthern, 967 S.W.2d

at 735. “Generally, statutes are presumed to apply prospectively in the absence of clear

legislative intent to the contrary.” State v. Thompson, 151 S.W.3d 434, 442 (Tenn. 2004);

Cauthern, 967 S.W.2d at 735. “The legislature may limit a new sentencing enactment to

prospective application.” Patrick Simpson v. State, No. 01-C-019203-CR00098, 1992 WL

335937, at *3 (Tenn. Crim. App., at Nashville, Nov. 18, 1992). Indeed, when construing

a more recent statute in conjunction with pre-existing legislation, “we presume that the

legislature has knowledge of its prior enactments and is fully aware of any judicial

constructions of those enactments.” Davis, 313 S.W.3d at 762; see also Welch, 595 S.W.

3d at 626.

Although not published with the rest of the statute in the Tennessee Code Annotated

per standard practice, a statute’s enabling provision is an expression of the General

Assembly’s intent regarding the statute. Carter v. State, 952 S.W.2d 417, 491, n.5 (Tenn.

1997); see Cauthern, 967 S.W.2d 726 at 735 (“[w]e conclude that the specific enabling

provision of the 1993 act, which clearly states that the amendment applies to all offenses

committed on or after July 1, 1993, controls”).

At issue here are the amendments to Tennessee Code Annotated section 39-17-

1324. As stated previously, it is unlawful for a defendant to knowingly possess a controlled

substance with the intent to sell, deliver, or manufacture it. T.C.A. § 39-17-417(a)(4)

(2019). At the time of the commission of the offense, the Act was triggered when a drug

offense occurred within 1,000 feet of a designated drug-free zone. In May 2019, the Act

provided in relevant part:

A violation of § 39-17-417, or a conspiracy to violate the section, that occurs

on the grounds or facilities of any school or within one thousand feet (1,000’)

of the real property that comprises a public or private elementary school,

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

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

higher than is provided in § 39-17-417(b)-(i) for such violation.

Id. § 39-17-432(b)(1) (2019) (emphasis added). A defendant sentenced under the prior

version of the Act was also “required to serve at least the minimum sentence for the

defendant’s appropriate range of sentence.” Id. § 39-17-432(c) (2019).

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The Act was subsequently amended to afford trial courts discretion in applying the

sentence classification enhancement and reduced the distance for the enhancement from

1,000 feet to 500 feet of a drug-free zone’s real property:

A violation of § 39-17-417, or a conspiracy to violate the section, may be

punished one (1) classification higher than is provided in § 39-17-417(b)-(i)

if the violation or the conspiracy to violate the section occurs:

(A) On the grounds or facilities of any school; or

(B) Within five hundred feet (500’) of or within the area bounded by a divided

federal highway, whichever is less, the real property that comprises a public

or private elementary school, middle school, secondary school, preschool,

child care agency, public library, recreational center, or park.

Id. § 39-17-417(b)(1) (2020) (emphasis added). Under the amended Act, a defendant

sentenced for violation of subsection (b) is no longer required to serve at least the minimum

sentence. Id. § 39-17-432(c)(1) (2020). That requirement is now a presumption that can

be overcome:

There is a rebuttable presumption that a defendant is not required to serve at

least the minimum sentence for the defendant’s appropriate range of

sentence. The rebuttable presumption is overcome if the court finds that the

defendant’s conduct exposed vulnerable persons to the distractions and

dangers that are incident to the occurrence of illegal drug activity.

Id. § 39-17-417(c)(2) (2020).

In general, “a criminal offender must be sentenced pursuant to the statute in effect

at the time of the offense.” Keese, 591 S.W.3d at 82 (quoting State v. Smith, 893 S.W.2d

908, 919 (Tenn. 1994)). “When a penal statute or penal legislative act of the state is

repealed or amended by a subsequent legislative act, the offense, as defined by the statute

or act being repealed or amended, committed while the statute or act was in full force and

effect shall be prosecuted under the act or statute in effect at the time of the commission of

the offense.” T.C.A. § 39-11-112 (Criminal Savings Statute). “The ‘exception’ to the

savings statute is when ‘the subsequent act provides for a lesser penalty, [in which case]

any punishment imposed shall be in accordance with the subsequent act.’” State v. Ariel

Ben Sherman, No. E2006-01226-CCA-R3-CD, 2007 WL 2011032, at *4 (Tenn. Crim.

App. July 12, 2007), aff'd, 266 S.W.3d 395 (Tenn. 2008); see State v. Menke, 590 S.W.3d

455, 468-70 (Tenn. 2019) (because amendments to the theft grading statute effectively

changed and provided for a lesser penalty than its previous version, the Savings Statute

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was satisfied, and the amended version was applicable where the offense occurred before

the amendment’s effective date but defendant was sentenced after the effective date) cf.

Keese, 591 S.W.3d at 84 (Savings Statute inapplicable where defendant was convicted and

sentenced before effective date of the amendments to the theft grading statute); State v.

Tolle, 591 S.W.3d 539, 545-46 (Tenn. 2019) (Savings Statute did not apply to authorize

trial court to sentence defendant to a reduced grade of the convicted offense under

amendment to theft grading statute upon revocation of defendant’s probation).

Furthermore, “a clear legislative directive regarding retroactive application is not required

for a defendant to benefit from the lesser punishment imposed by the subsequent act.”

Menke, 590 S.W.3d at 470.

In this case, the legislature’s intent of limiting application to offenses occurring on

or after September 1, 2020, is expressed unambiguously in the language of the enabling

provision for the Act which states, “This act shall take effect September 1, 2020, the public

welfare requiring it, and applies to offenses committed on or after that date.” 2020 Tenn.

Pub. Acts, ch. 803, § 12. See also State v. Douglas E. Linville, No. W2019-02180-SC-

R11-CD, --S.W.3d --, 2022 WL 1769068, at *1, n.2. (Tenn. June 1, 2022) (“The 2020

amendment [to T.C.A. §39-17-432] applied to offenses that occurred on or after September

1, 2020”). This specific language of the enabling provision is essentially the same as the

enabling language our Supreme Court interpreted in Cauthern to supersede the Savings

Statute. Cauthern, 967 S.W.2d at 735. Defendant committed the offenses on May 28,

2019. Thus, by its terms, the September 2020 amendments to the Act do not apply to

Defendant. See Larry Catron v. State, No. 03C01-9310-CR-00358, 1994 WL 176971, at

*1 (Tenn. Crim. App., at Knoxville, May 11, 1994) (Sentencing Reform Act of 1989 not

retroactively applicable to petitioner where the language of the statute and the enabling

legislation plainly states that the statute applies to offenders who are sentenced after the

effective date); see also State ex re. Bobby L. Crum v. McWherter, No. 02-C01-9108-CC-

00181, 1992 WL 99029, at *2 (Tenn. Crim. App., at Jackson, May 13, 1992); William

Moree v. State, No. E2005-02302-CCA-R3-HC, 2007 WL 465113, at *1 (Tenn. Crim.

App. Feb. 13, 2007).

In addition to the plain language of the enabling provision, the legislature’s intent

of applying the 2020 amendments to drug-free zone offenses committed on or after

September 1, 2020 is confirmed by the most recent passage of Public Chapter No. 927.

Under Public Chapter No. 927, a defendant who was sentenced under the pre-2020 version

of the Act for offenses committed before September 1, 2020, may petition to be re-

sentenced under the 2020 amendments. See Act of April 11, 2022, ch. 927 § 1 (“the court

that imposed a sentence for an offense committed under this section that occurred prior to

September 1, 2020, may, upon motion of the defendant or the district attorney general or

the court’s own motion, resentence the defendant pursuant to [2020 amendments]”); see

also Linville, 2022 WL 1769068, at *1, n.2 (“the statute was amended once again in 2022

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to create a procedure whereby defendants convicted of offenses that occurred before

September 1, 2020, are eligible for resentencing under the provisions enacted by the 2020

amendment”). To dispel any confusion, this most recent amendment to Tennessee Code

Annotated section 39-17-432 “applies to sentencing for offenses committed before

September 1, 2020.” See Act of April 11, 2022 , ch. 927, § 2.

Here, the trial court properly sentenced Defendant in count one under the 2019 Act

in accordance with the specific enabling provision of the Act. Defendant committed the

relevant offense on May 28, 2019. He was sentenced as a Range I offender to twelve years

with the first eight years of the sentence to be served at one-hundred percent. Possession

with the intent to sell or deliver more than 0.5 ounce of cocaine within 1,000 feet of a drug-

free zone is a Class B felony. See T.C.A. § 39-17-417(c)(1) (2019). The range of

punishment for a Range I offender convicted of a Class B felony is “not less than eight (8)

nor more than twelve (12) years[.]” Id. § 40-35-112(a)(2) (2019). Because a felony drug

offense committed within a park is not subject to an enhanced classification, the trial court

properly sentenced Defendant to a twelve-year sentence. Id. § 39-17-432(b)(3) (2019).

Defendant is not entitled to relief.

Although not raised in the motion for a new trial or as an error on appeal, the

judgment form for count two reflects an incorrect sentence of twelve years. See, e.g., Tenn.

R. App. P. 36(b) (when necessary to do substantial justice, an appellate court may consider

an error that has affected the substantial rights of a party at any time). In count two,

Defendant was convicted of unlawful possession of a firearm by a person previously

convicted of a felony drug offense, a Class C felony. T.C.A. §§ 39-17-1307(b)(1)(B), 39-

17-1307(b)(3). The sentence range for a Range I, Class C felony is three to six years. Id.

§ 40-35-112(a)(3). The sentencing transcript shows that the trial court did not impose a

sentence for count two but mistakenly referred to “count two” when declaring the sentence

for count three, unlawful possession of a firearm by a person previously convicted of a

violent offense, a Class B felony. Id. §§ 39-17-1307(b)(1)(A), 39-17-1307(b)(2). The trial

court properly imposed a within-range sentence of twelve years for count three. Id. § 40-

35-112(a)(2). Additionally, the trial court properly merged the Class C felony of count two

with the Class B felony of count three and properly entered judgment forms for each of the

merged counts. See State v. Berry, 503 S.W.3d 360, 364 (Tenn. 2015). Validity of the

merger is not at issue. Id. at 362, n.2 (citing State v. Watkins, 362 S.W.3d 530, 556 (Tenn.

2012)). However, no sentence was declared for count two at sentencing. Yet, the judgment

form for count two reflects the same twelve-year sentence imposed for count three.

Accordingly, we modify Defendant’s sentence in count two to reflect an in-range sentence

of three years and remand for entry of an amended judgment form for count two.

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Conclusion

For the foregoing analysis, the judgments of the trial court are affirmed but

remanded for entry of an amended judgment form in count two.

____________________________________

JILL BARTEE AYERS, JUDGE

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