State of Tennessee v. Timothy Allen Johnson ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 19, 2016
STATE OF TENNESSEE v. TIMOTHY ALLEN JOHNSON
Direct Appeal from the Criminal Court for Davidson County
No. 2014-B-1187 Cheryl Blackburn, Judge
No. M2015-01160-CCA-R3-CD – Filed June 15, 2016
A Davidson County jury convicted the Defendant, Timothy Allen Johnson, of sale of less
than .5 grams of cocaine in a drug-free school zone. On appeal, the Defendant contends that
the evidence is insufficient to sustain his conviction. After a thorough review of the record
and applicable authorities, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
Nicholas McGregor (at trial) and David Harris (on appeal), Nashville, Tennessee, for the
appellant, Timothy Allen Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Glenn S. Funk, District Attorney General; Jeff Burks, Assistant District Attorney General, for
the appellee, State of Tennessee.
OPINION
I. Facts
A. Trial
This case arises from an undercover drug purchase in the Edgehill neighborhood of
Nashville, Tennessee, on March 27, 2012. A Davidson County grand jury indicted the
Defendant for sale of less than .5 grams of cocaine in a drug-free school zone and delivery of
less than .5 grams of cocaine in a drug-free school zone. The following evidence was
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presented at the Defendant’s trial: Detective Michael Donaldson, a Metropolitan Nashville
police officer, testified that he worked in an “undercover capacity” buying and selling drugs
on the streets. On March 27, 2012, Detective Donaldson was assigned to the Crime
Suppression Unit and was buying drugs from street level drug sellers. He received a list of
citizen complaints about where drugs were being sold on the street. Detective Donaldson
went to one area of complaint, at the corner of Wedgewood Avenue and Waverly Avenue in
the Edgehill neighborhood. Detective Donaldson parked his vehicle at the intersection and
began walking around the area. He saw a woman and two men standing by a tree, and as the
woman walked away from the men, Detective Donaldson asked her if she knew where he
could buy drugs. The woman turned around and pointed to the two men, and Detective
Donaldson approached them, one of whom he identified as the Defendant. Detective
Donaldson asked the Defendant in “street lingo” if he could buy $30 worth of crack cocaine
from him. The Defendant replied that he did not have “any, he was waiting to get his and
that [Detective Donaldson] would have to come back.”
Detective Donaldson walked away from the Defendant and then advised his partner
that he needed to wait for the Defendant to get the drugs. Detective Donaldson subsequently
went back over to the Defendant and asked if the Defendant had gotten the drugs yet, to
which he replied that he had not. The Defendant told Detective Donaldson that he would
“get it from another place.” The Defendant walked across Wedgewood Avenue and directed
Detective Donaldson to follow him. Once across the street, the Defendant knocked on the
door of a house, and someone opened the door. The Defendant spoke to that person and then
walked back over to Detective Donaldson and said that he could not get any drugs from the
person inside the house but that the Defendant knew another place to try. The Defendant and
Detective Donaldson got into Detective Donaldson’s undercover vehicle, driven by Detective
Donaldson’s partner, and drove to a nearby Shell gas station, located at the intersection of
Lafayette Street and Lewis Street. Detective Donaldson testified that the gas station was
close to Johnson Elementary School.
Once at the Shell station, Detective Donaldson gave the Defendant previously
photocopied “buy money,” and the Defendant exited the vehicle to get the drugs. The
Defendant walked across Lewis Street and into a housing division; Detective Donaldson
indicated the Defendant’s route on a map displayed for the jury. He recalled that it was 9:15
or 9:30 p.m. Detective Donaldson clarified that the Defendant exited the vehicle with the
buy money and disappeared from view, and neither Detective Donaldson nor his partner
followed the Defendant. Approximately five minutes later, the Defendant returned to the
vehicle and appeared nervous because uniformed police officers were on foot patrol close by.
Detective Donaldson stated that the uniformed officers had no knowledge of the undercover
operation. The Defendant got into the vehicle and said, “Let’s go.” Detective Donaldson
asked for the drugs or his money back. The Defendant insisted that they drive away. As
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Detective Donaldson drove the vehicle away from the gas station, the Defendant showed him
a large bag. The bag was “a much larger bag than you would get for $30 worth of cocaine”
and Detective Donaldson asked if “all of it” was for him. The Defendant said, “no, the rest
of it is mine.” The Defendant untied the bag and “broke off a piece [of crack cocaine] the
size of a pencil eraser and handed [Detective Donaldson] that piece. . . .” Detective
Donaldson stated that the Defendant gave the drugs to him “approximately a block” from the
Shell gas station at Worth Street. Detective Donaldson then secured the sold crack cocaine,
completing the transaction, and gave the “takedown signal” to nearby police officers.
Detective Donaldson continued to engage the Defendant in conversation hoping to distract
him.
Uniformed officers responded to the takedown signal, and the Defendant started to eat
the remaining drugs in the bag. Detective Donaldson wrestled with the Defendant in an
attempt to stop him from eating all the remaining drugs but was unable to stop the Defendant
from swallowing them. However, Detective Donaldson still had the piece of crack cocaine
he had purchased from the Defendant. Officer Bill Loucks then attempted to remove the
Defendant from the vehicle, and the Defendant punched and kicked him to avoid being
handcuffed. “After considerable wrestling and fighting,” the Defendant was detained, at
which point Detective Donaldson exited his vehicle and conducted a field test on the drugs
purchased from the Defendant. The drugs tested positive for cocaine base and were placed in
an evidence bag. Detective Donaldson identified in court the drugs in the evidence bag.
Detective Donaldson again identified on a map where the Shell gas station was
located. He stated that the Police Department had done “numerous” undercover drug
purchases at “this location” and had determined that it was located in a “drug free school
zone.” Detective Donaldson recalled that the Defendant, when he returned to the vehicle
with drugs, did not have the buy money on his person, as determined by a search of his
person after he was detained. The buy money was not recovered.
On cross-examination, Detective Donaldson clarified that the complaint about drug
activity did not identify the Defendant but simply an address at an intersection. He agreed
that he was not investigating the Defendant in particular. Detective Donaldson stated that he
stayed in the vehicle at the Shell station, instead of following the Defendant into the housing
division, and he did not see the Defendant acquire the drugs.
Detective Brittany Shoesmith testified that she worked for the Metropolitan Nashville
Police Department and was partnered with Detective Donaldson on March 27, 2012, working
in an undercover capacity. Detective Shoesmith drove the undercover vehicle with Detective
Donaldson as a passenger to the Edgehill neighborhood. She recalled that Detective
Donaldson got out of the vehicle and came back a short while later to report that he had met
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an individual to buy drugs from but that the individual needed to get more drugs from his
supplier. After several attempts to find drugs, the Defendant and Detective Donaldson both
got into the vehicle and the three of them drove to the Shell gas station on Lafayette Street
where the Defendant said he would meet with his supplier and get more drugs. At the gas
station, the Defendant exited the vehicle and was gone for no more than ten minutes. When
he returned, he got back into the vehicle and told Detective Shoesmith to drive away.
Detective Shoesmith began driving the vehicle on Lafayette Street towards downtown. The
Defendant pulled out a plastic bag containing what Detective Shoesmith described as crack
cocaine. The Defendant “broke off a piece and gave it to Detective Donaldson.” The
“takedown word” was then given and Detective Shoesmith stopped the vehicle on Lafayette
Street and the Defendant was taken into custody.
On cross-examination, Detective Shoesmith clarified that she stopped the vehicle after
Detective Donaldson had received the drugs from the Defendant. She agreed that she swore
out arrest warrants in this case. She could not recall the address written on the warrants or
exactly where the vehicle stopped. Detective Shoesmith agreed that if the warrants listed
1035 1st Avenue North, that was an accurate address for where she stopped the vehicle.
Detective Bill Loucks testified that he was working on the narcotics unit on March 27,
2012, and that he provided “cover” for the undercover officers and monitored their
interactions. Once the takedown signal was given, Detective Loucks stopped the vehicle
driven by Detective Shoesmith and took the seller, the Defendant, into custody. He was not
involved in the drug transaction until the takedown signal was given.
Special Agent Denotria Patterson testified that she worked for the Tennessee Bureau
of Investigation (“TBI”) as a forensic scientist. Agent Patterson was admitted as an expert in
the field of forensic chemistry. Agent Patterson tested the drugs that the Defendant sold to
Detective Donaldson in the TBI laboratory. She stated that the drugs tested positive for
cocaine base and weighed .20 grams. She testified that cocaine was a Schedule II substance.
David Kline testified that he worked at the Metropolitan Nashville Planning
Department. Mr. Kline identified on a map the intersection of Lafayette Street and Lewis
Street, where the Shell gas station was located; the map was admitted into evidence. He also
identified the property lines for Napier School and a 1,000 foot “buffer” zone around the
school. He testified that the Shell gas station at the intersection of Lafayette Street and Lewis
Street was within the 1,000 foot buffer zone surrounding Napier School.
On cross-examination, Mr. Kline stated that 1st Avenue North was also called
Hermitage Avenue. He indicated where the street was on the map but could not identify the
specific location of 1035 1st Avenue North.
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Based upon this evidence the jury convicted the Defendant of sale of less than .5
grams of cocaine within a drug-free school zone. The jury foreperson stated that the jury had
not deliberated as to the delivery of less than .5 grams of cocaine within a drug-free school
zone charge; the charge was dismissed.
II. Analysis
On appeal, the Defendant contends that the evidence is insufficient to sustain his
conviction. He contends that the drug transaction took place outside of the drug free school
zone and that Mr. Kline only testified that the Shell gas station at the intersection of Lafayette
Street and Lewis Street was inside the 1,000 foot buffer. He contends that the evidence
shows that the transaction took place once Detective Shoesmith drove the undercover vehicle
away from the gas station to 1035 1st Avenue North, outside the 1,000 foot drug free zone.
The State responds that the Defendant took money from Detective Donaldson at the Shell gas
station, within the school zone and returned to the same location with the drugs, completing
the sale, and then delivered the drugs on the “outer limits” of the school zone. The State
contends that this is more than sufficient to establish that the Defendant sold drugs in a
school zone. We agree with the State.
When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering the evidence in the light most favorable to the State,
“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); see Tenn. R. App. P.
13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d
247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence. State v.
Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). The jury decides the weight to be given
to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(citations omitted). AThe standard of review [for sufficiency of the evidence] is the same
whether the conviction is based upon direct or circumstantial evidence.” State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).
In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
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Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by
the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. 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.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences that may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
Tennessee Code Annotated provides that it is an offense for a person to knowingly sell
a controlled substance. T.C.A. § 39-17-417(a)(3) (2014). Cocaine is a Schedule II
controlled substance. T.C.A. § 39-17-408. Knowingly is defined as when a person acts
“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.” T.C.A. § 39-11-302(b).
“[A] sale consists of two components: a bargained-for offer and acceptance, and an actual or
constructive transfer or delivery of the subject matter property.” State v. Holston, 94 S.W.3d
507, 510 (Tenn. Crim. App. 2002) (citing State v. Wilkerson, No. 03C01-9708-CR-00336,
1998 WL 379980 (Tenn. Crim. App. at Knoxville, July 9, 1998)). “One who accepts
payment in exchange for property is involved in a sale.” Id. at 511 (citations omitted). “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)
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classification higher than is provided in § 39-17-417(b)-(i) for such violation.” T.C.A. § 39-
17-432(b)(1). In essence, the statute creates a “buffer zone” of one thousand feet around
schools. Id.
We conclude that the evidence presented, viewed in the light most favorable to the
State, is sufficient to establish that the Defendant knowingly sold a Schedule II controlled
substance to an undercover officer within 1,000 feet of a school. The Defendant and an
undercover officer had a conversation at an Edgehill neighborhood intersection, during which
the officer indicated he wanted to buy cocaine. The Defendant said he knew where to get it
and took the officer to the location, a Shell gas station. Once there, the Defendant took the
officer’s money, went away with the money and returned with a white substance from which
he broke off a small piece and gave it to the detective. The Defendant ingested the majority
of this substance after police officers stopped the men, but the white substance in the
detective’s possession was later identified as crack cocaine, weighing .20 grams. An
employee of the Metropolitan Planning Department testified that the location where the
exchange of money took place was within 1,000 feet of a school. The Defendant gave
Detective Donaldson the drugs when the undercover vehicle was one block away from the
gas station. A jury could reasonably infer from this evidence that the sale of the drugs took
place within the drug-free school zone. Accordingly, we conclude that there was sufficient
evidence to support the jury’s finding that the Defendant was guilty beyond a reasonable
doubt of sale of a Schedule II controlled substance within 1,000 feet of a school. The
Defendant is not entitled to relief on this issue.
III. Conclusion
In accordance with the aforementioned reasoning and authorities, we affirm the trial
court’s judgment.
________________________________
ROBERT W. WEDEMEYER, JUDGE
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