State of Tennessee v. Victor D. McMiller ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 26, 2011 Session
STATE OF TENNESSEE v. VICTOR D. McMILLER
Direct Appeal from the Criminal Court for Sullivan County
No. S55,605 Robert H. Montgomery, Jr., Judge
No. E2010-01558-CCA-R3-CD - Filed December 6, 2011
Defendant, Victor D. McMiller, was charged with two counts each of the sale and delivery
of dihydrocodeinone, a Schedule III controlled substance. Defendant was convicted on all
four counts. His convictions for delivery of a controlled substance were merged into his
convictions for sale of a controlled substance, and Defendant was sentenced to 12 years for
each conviction, and his convictions were ordered to be served consecutively for an effective
sentence of 24 years. On appeal, Defendant argues that: 1) the evidence was insufficient to
support his convictions; 2) the trial court erred by allowing testimony of Defendant’s prior
bad acts; 3) the presentment was facially invalid because it states that sale or delivery of a
Schedule III controlled substance is a Class C, rather than Class D, felony; and 4) the trial
court erred by ordering consecutive sentences. After a careful review of the record, we
affirm Defendant’s convictions and sentences.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, J., joined. D AVID H. W ELLES, S P.J., not participating.
Ricky A.W. Curtis, Blountville, Tennessee, for the appellant, Victor D. McMiller.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; H. Greeley Wells, Jr., District Attorney General; and Kent Chitwood, Assistant
District Attorney General, for the appellee, the State of Tennessee.
OPINION
Facts
Detective Scott Reed, of the Kingsport Police Department Vice and Narcotics Unit,
testified that he first came into contact with Patricia Wise in 2008 when she was arrested for
theft. Ms. Wise became a confidential informant for the Kingsport Police Department.
Detective Reed arranged a controlled drug buy through Ms. Wise on February 11, 2008. At
approximately 9:30 p.m., he rode to the location of the buy with Ms. Wise in her vehicle.
She was wearing audio and video surveillance equipment. Detective Reed searched Ms.
Wise’s vehicle and person for illegal drugs and found none. Detective Reed gave Ms. Wise
$100 to purchase 14 Lortab pills. They arrived at the location, which was an apartment
complex, and Detective Reed saw Defendant in a white Ford Explorer. Ms. Wise exited her
vehicle and walked over to Defendant’s vehicle. Detective Reed testified that he did not see
the actual “hand to hand” exchange between Defendant and Ms. Wise. Ms. Wise returned
to her vehicle with the pills, which Detective Reed took from her and logged into evidence.
Detective Reed arranged a second controlled buy to take place on April 23, 2008, with
the same informant, Ms. Wise. On that date, Detective Reed again searched Ms. Wise’s
person and vehicle and did not find any illegal drugs. Ms. Wise was wired with audio
monitoring equipment and given $70 to purchase ten Lortab pills. Ms. Wise drove alone to
the same location as the first buy. Detective Reed followed her to the location in another
vehicle and parked nearby. Detective Reed observed Ms. Wise go inside the residence.
Detective Reed listened to the transaction on the audio recording and saw Ms. Wise leave the
residence and leave in her vehicle. Detective Reed followed her to a predetermined location,
and another officer, Detective Hank McQueen, collected the Lortab pills, which he processed
into evidence.
On cross-examination, Detective Reed testified that the Ford Explorer vehicle that
Defendant was driving was not registered to Defendant. He testified that Ms. Wise was an
admitted cocaine user. Ms. Wise was compensated for acting as an informant. Detective
Reed did not search Ms. Wise’s undergarments, and he did not recall whether he searched
inside her mouth, prior to the controlled buys. Defendant’s name was on the lease of the
apartment at the location of both controlled buys. On re-direct examination, Detective Reed
testified that Ms. Wise had also been used to purchase drugs from another individual at
Defendant’s residence in January, 2008. Ms. Wise identified Defendant in a photographic
lineup on March 17, 2008.
Patricia Wise testified that sometime around December of 2007 or January of 2008,
she was charged with felony theft. At the time of her arrest, she had been using crack
cocaine for approximately four months, but she testified that she had not used drugs since
that time. She contacted the Kingsport Police Department to report a meth lab. She hoped
to receive a more lenient disposition on her charges in exchange for information to the police.
Ms. Wise gave officers information about Jessica Hooker, a co-worker, and they arranged
a drug transaction. Detective Reed rode with Ms. Wise to the apartment complex where Ms.
Hooker lived, but Ms. Hooker was not home. Ms. Wise went to Defendant’s apartment, and
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Ms. Hooker was outside waiting for her. They went inside Defendant’s apartment, and Ms.
Hooker introduced Ms. Wise to Defendant. Defendant was sitting in the living room. Ms.
Hooker and Ms. Wise went to the bedroom, where Ms. Hooker gave Ms. Wise Lortab pills
in exchange for money provided to Ms. Wise by Detective Reed.
Ms. Wise testified that on February 11, 2008, Detective Reed again rode with her to
Defendant’s apartment. Detectives searched her person and her vehicle, wired her with audio
and video surveillance, and gave her $100 to purchase 14 Lortab pills. When they arrived,
she parked her vehicle adjacent to Defendant’s. She stepped out of her vehicle and stood
beside Defendant’s vehicle. She handed Defendant the money, and he gave her the pills and
$2 in change. She got back inside her vehicle and drove away. She contacted the Kingsport
Police Department again in April to set up another transaction with Defendant. She was
again searched, wired, and given money for the buy. She drove to Defendant’s apartment.
She testified that she did not believe Detective Reed rode with her on that occasion. She
went inside Defendant’s apartment and purchased pills, which she gave to detectives. On
cross-examination, Ms. Wise admitted that she had also been charged with two counts of
misdemeanor theft and for issuing a worthless check.
TBI Agent Carl Smith testified that he tested pills submitted by the Kingsport Police
Department. There were 14 tablets, containing dihydrocodeinone, a Schedule III controlled
substance. TBI Agent Ashley Cummings also tested pills received in this case. She counted
ten tablets, also containing dihydrocodeinone, a Schedule III controlled substance.
Jessica Hooker testified that she sold Lortabs to Patricia Wise on January 28, 2008.
Ms. Wise asked Ms. Hooker if she knew where she could get some Lortab pills, and Ms.
Hooker responded that she could get them from Defendant, her then boyfriend. Ms. Hooker
was married to Defendant at the time of Defendant’s trial, but they were separated. Ms.
Hooker testified that Defendant had a prescription for them because he had degenerative
bone disease. Ms. Wise went to Defendant’s apartment, and Ms. Hooker sold her the pills.
Ms. Hooker later gave the money to Defendant. Ms. Hooker sold pills to Ms. Wise on
another occasion in March, 2008. The transaction again took place in Defendant’s apartment
in the bedroom. Defendant told Ms. Hooker that he had sold pills and that if she knew
anyone who wanted to buy some, that he had them to sell. Ms. Hooker was charged with two
counts each of the sale and delivery of dihydrocodeinone, to which she pled guilty. Ms.
Hooker testified that Defendant was not present in his apartment for the January transaction,
but he was present for the March transaction. Ms. Hooker testified on cross-examination that
she did not have any personal knowledge that Defendant sold Lortabs to Ms. Wise on
February 11th or April 23rd , and she never saw him sell Lortabs to anyone. Following a jury-
out hearing, on redirect examination, Ms. Hooker clarified that she had not seen Defendant
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sell Lortabs to anyone during the time period of these offenses, but that he had told her that
he was selling Lortabs.
Terry Bradley testified that on February 11, 2008, he met Ms. Wise and Defendant at
the Model City Motel. Mr. Bradley testified that he heard Ms. Wise tell Defendant that she
“was going to send him back to the penitentiary.” He testified that Ms. Wise was
“squalling,” and she looked like “she was geeked up like she’d been smoking rock.” On
cross-examination, Mr. Bradley testified that he was incarcerated at the time of trial, charged
with robbery, and that he had prior convictions for aggravated robbery and aggravated
burglary.
Defendant did not testify.
Analysis
I. Sufficiency of the evidence
Defendant asserts that the evidence at trial was insufficient to support his convictions
for the sale and delivery of a Schedule III controlled substance. Specifically, Defendant
argues: 1) that there was no proof of the amount of hydrocodone or dihydrocodeinone in the
tablets analyzed by the TBI; and 2) that there was insufficient evidence of his identity
because the confidential informant did not identify him at trial;
Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.”
A convicted criminal defendant who challenges the sufficiency of the evidence on appeal
bears the burden of demonstrating why the evidence is insufficient to support the verdict,
because a verdict of guilt destroys the presumption of innocence and imposes a presumption
of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35
S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This
Court must reject a convicted criminal defendant’s challenge to the sufficiency of the
evidence if, after considering the evidence in a light most favorable to the prosecution, we
determine that any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall,
8 S.W.3d 593, 599 (Tenn. 1999).
On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
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testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of 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, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37; Carruthers, 35 S.W.3d at 557.
Defendant was convicted of selling and delivering dihydrocodeinone, a Schedule III
controlled substance, a Class D felony. Tenn. Code Ann. § 39-17-417(a)(4), (d)(1). Under
our criminal code, “[i]t is an offense for a defendant to knowingly . . . [d]eliver a controlled
substance” or to knowingly “[s]ell a controlled substance.” Tenn. Code Ann. §
39-17-417(a)(2), (3).
Defendant argues that the State failed to prove that the dihydrocodeinone sold by
Defendant was, in fact, a Schedule III narcotic because there was no evidence presented of
the weights and ratios of the drugs contained in the tablets. Under Tennessee Code
Annotated section 39-17-410, dihydrocodeinone is specifically designated as a narcotic drug
and a Schedule III controlled substance. The statute provides in pertinent part as follows:
(a) Schedule III consists of the drugs and other substances, by whatever
official name, common or usual name, chemical name, or brand name
designated, listed in this section.
....
(e) N ARCOTIC D RUGS.
(1) Unless specifically excepted or unless listed in another schedule,
any material, compound, mixture, or preparation containing any of
the following narcotic drugs, or their salts calculated as the free
anhydrous base or alkaloid, in limited quantities:
....
(C) Not more than three hundred (300) milligrams of
dihydrocodeinone per one hundred (100) milliliters or not more than
fifteen (15) milligrams per dosage unit, with a fourfold or greater
quantity of an isoquinoline alkaloid of opium;
(D) Not more than three hundred (300) milligrams of
dihydrocodeinone per one hundred (100) milliliters or not more than
fifteen (15) milligrams per dosage unit, with one (1) or more active
nonnarcotic ingredients in recognized therapeutic amounts;
Tenn. Code Ann. § 39-17-410(a), (e)(1)(C)-(D).
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Agents Smith and Cummings both testified as experts in the area of drug analysis.
Agent Smith identified the controlled substance extracted from the tablets sold to Ms. Wise
by Defendant on February 11, 2008, by first doing a visual logo inspection and then by using
an infrared spectrometer. He conclusively determined that the tablets contained
dihydrocodeinone, a Schedule III controlled substance. Agent Smith only counted the tablets
and did not weigh them. Agent Smith referenced Tennessee Code Annotated to determine
that the substance, dihydrocodeinone, was a Schedule III drug. He testified as follows:
A: We use the Tennessee Code Annotated and according to the results
we enter in the scheduling of that substance.
Q: Dihydrocodeinone is a Schedule III.
A: It is a Schedule III according to the way these tablets are made.
Q: Watson 385 is a generic Lortab.
A: Really I don’t remember what a Lortab is but I think that’s correct.
Agent Cummings testified that she visually examined the tablets sold by Defendant
to Ms. Wise on April 23, 2008, and performed a logo identification. Agent Cummings did
not weigh the tablets. Using a gasometrical mass spectrometer analysis, Agent Cummings
determined that the tablets contained dihydrocodeinone, a Schedule III substance. On cross-
examination, Agent Cummings testified that the pills were Watson 385, which are commonly
known as Lortabs. She referenced Tennessee Code Annotated to classify the pills as a
Schedule III controlled substance. Agent Cummings testified that “tablets aren’t generally
weighed as a part of our examination. Basically we get that information from our logo
identification book that tells us how many milligrams of each [hydrocodone and
acetaminophen] is in the tablets.”
Agent Cummings testified:
Q: And dihydrocodeinone, what schedule is that?
A: Three.
Q: Okay, do you know enough about the schedules to testify as to which
is classified as more addictive, less addictive?
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A: I have a little bit of knowledge of that. The lower the schedule
number the higher the potential for abuse and the more subject to
abuse that it is, so therefore a Schedule II would be more addictive
I guess, according to those guidelines, than a III.
Q: So in this case you didn’t find that it was more addictive, you found
that it was the Dihydrocodeinone, the Schedule III.
A: Yes.
Q: Okay, any confusion in your mind as to what that was?
A: No.
We note that defense counsel affirmatively stated in the record that he had no
objection to the admissibility of the lab reports of each TBI forensic scientist. Both reports
identified the tablets at issue as dihydrocodeinone, a Schedule III controlled substance. We
conclude that the evidence is sufficient that the tablets contained narcotics that meet the
definition of a Schedule III controlled substance. Both agents offered expert testimony
regarding tablets sold by Defendant to Ms. Wise on February 11, and April 23, 2008. Expert
testimony is used if scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to “understand the evidence or to determine a fact in issue[.]” Tenn. R.
Evid. 702. The agents’ testimony assisted the trier of fact in understanding the composition,
and therefore the classification, of the tablets. Defendant is not entitled to relief on this issue.
As to Defendant’s identity as the person who sold the drugs to Ms. Wise, we also
conclude that the evidence was sufficient. The identification of a defendant as the person
who committed the crime is a question of fact for the jury. See State v. Strickland, 885
S.W.2d 85, 87 (Tenn. Crim. App. 1993). The credible testimony of one identification
witness is sufficient to support a conviction if the witness viewed the accused under such
circumstances as would permit a positive identification to be made. State v. Radley, 29
S.W.3d 532, 536 (Tenn. Crim. App. 1999) (citing Strickland, 885 S.W.2d at 87-88). The jury
is charged with making credibility determinations, and this Court will not substitute its
inferences for those of the trier of fact, nor will it reweigh the credibility of witnesses on
appeal. State v. Smith, 24 S.W.3d 274, 278-79 (Tenn. 2000).
Ms. Wise testified that she bought drugs from “Victor” on February 11, 2008. She
knew from having been previously introduced to him that his first name was “Victor.”
Detective Reed testified:
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Q: Okay, did you have a clear view from your vehicle into his vehicle?
A: I did.
Q: Okay, any doubt in your mind that it was [Defendant]?
A: No.
Q: Okay, the individual that was in that vehicle on February 11 th , 2008,
is that the individual sitting here today?
A: It is.
After that transaction, Ms. Wise identified Defendant in a photographic lineup.
Detective Reed testified that he pulled Defendant’s driver’s license photo to use in the lineup,
and he recognized Defendant as the person in the vehicle from whom Ms. Wise purchased
drugs. Ms. Wise testified that on April 23, 2008, she went to Victor’s apartment and again
purchased drugs from him. When asked on direct examination, concerning the audiotape,
whether the other voice on the recording sounded like Defendant, she testified, “yes, it does.”
The evidence is sufficient to support Defendant’s convictions. Defendant is not entitled to
relief on this issue.
II. Prior bad acts testimony
Next, Defendant asserts that the trial court committed reversible error by allowing Ms.
Hooker to testify that Defendant had previously sold Lortabs. The State responds that
Defendant waived this issue by requesting a curative instruction, which the trial court gave
the jury, and by not objecting to the testimony.
Generally, evidence of a defendant’s prior crimes, wrongs, or acts is not admissible
to prove that he committed the crime in question. See Tenn. R. Evid. 404. Such evidence
carries the inherent risk of the jury convicting the defendant of a crime based upon his bad
character or propensity to commit a crime, rather than the strength of the evidence. See State
v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the prior bad acts
are similar to the crime for which the defendant is on trial. See id. However, Tennessee Rule
of Evidence 404(b) states that evidence of prior crimes, wrongs, or acts may be admissible
when it is probative of material issues other than conduct conforming with a character trait.
Evidence of a defendant’s criminal character is admissible to prove: (1) the use of “motive
and common scheme or plan” to establish identity, (2) to establish the defendant’s intent in
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committing the offense on trial, and (3) to “rebut a claim of mistake or accident if asserted
as a defense.” State v. McCary, 922 S.W.2d 511, 514 (Tenn. 1996).
In order to admit such evidence, a trial court must, upon request, hold a hearing
outside the jury’s presence and determine that a material issue exists that does not concern
conduct conforming with a character trait. See Tenn. R. Evid. 404(b). The trial court must
also, upon request, state on the record the material issue, the ruling, and the reasons for
admitting the evidence. See id. Additionally, the trial court must determine that the
probative value of the evidence outweighs the danger of unfair prejudice. Id. If the trial
court follows the procedure set forth in Rule 404(b), an appellate court may only disturb the
trial court’s decision upon a finding of an abuse of discretion. See State v. DuBose, 953
S.W.2d 649, 652 (Tenn. 1997).
Prior to trial, the State advised the trial court that it intended to call Ms. Hooker as a
witness. Further, the State anticipated her testimony would be that Defendant had Lortabs
available for sale during the relevant time period and that Ms. Hooker had sold Lortabs to
Ms. Wise while inside Defendant’s apartment. The State contended that the evidence was
relevant to show Defendant’s identity and intent. Defense counsel objected to the testimony.
Overall, it appears the trial court declined to rule that the evidence was admissible. The court
stated as follows:
THE COURT: Well, in looking at 404(b) and of course it would be as
I, based on what you all are telling me right now, I
consider it to be evidence of other crimes basically. I
mean where he’s providing drugs and of course I
haven’t heard any of the State’s proof at this point in
time. I don’t know if – I mean General, you said
several things with regard to identity, motive, you
know, possibly. Again, I don’t know and I’ve not
heard your proof but it would appear to me that at this
point in time, and of course I’m open to hear
additional evidence later on because, you know, and
if you want to offer her at some point in time as to
what she would say on that issue and for me to hear it
I’ll do it. But at this point in time it would seem to me
that the – I think that the – all I know right now I
don’t believe [sic] that the probative value is
outweighed by the danger of unfair prejudice at this
point in time.
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....
Now, you know, I mean if some of those issues where
you’re saying that you might want to introduce it, you
know come into play then I’ll be more than happy to
hear it but just on your case in chief I just don’t see
that, General.
On cross-examination by defense counsel, Ms. Hooker testified that she never saw
Defendant sell drugs to Ms. Wise or anyone else. She testified as follows:
Q: You don’t have any evidence or any personal knowledge that
[Defendant] sold drugs to Pat Wise on February 11 th .
A: No, I don’t.
Q: You didn’t see any transaction whereby [Defendant] sold Lortabs to
Pat Wise on April 23 rd .
A: No, I don’t.
Q: In fact you were married [to] this man, you never saw him sell
Lortabs to anybody did you?
A: No, I didn’t.
The State requested a jury-out hearing and asked the trial court for permission to ask
Ms. Hooker whether she knew that Defendant had sold drugs to Ms. Wise because of Ms.
Hooker’s testimony on cross-examination, that she did not have any personal knowledge of
Defendant having sold drugs to anyone, was misleading. During the jury-out hearing, the
State questioned Ms. Hooker about whether she knew Defendant had sold drugs between
January and April of 2008, and she responded that she did because Defendant had told her
that he had sold drugs and that he had Lortabs available for sale. Defense counsel agreed
with the State that Ms. Hooker’s response was misleading and suggested to the court as
follows:
[Defense counsel]: I think, Your Honor, the remedy would be to allow
[the prosecutor] to put her back on the stand and allow
[the prosecutor] to say, “Ms. Hooker, [defense
counsel] just asked you if you had any personal
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knowledge, you said no, isn’t it true that he told you
that he had sold drugs,” or something along those lines
and that would cure the misconception.
The trial court agreed and asked defense counsel whether he wanted to request a
curative instruction to the jury. Defense counsel stated:
[Defense counsel]: Judge, I think just to give some guidance to the jury
would be necessary and I think it would be to the
benefit of both parties to be honest with you, just so –
I mean [the prosecutor] is going to be the one that gets
to stand up first and ask her that question so the jury
doesn’t think, “Well why is [Ms. Hooker’s answer]
different for him than [it was for] [defense counsel].”
I think an instruction that we are correcting an error is
appropriate.
In the jury’s presence, on redirect examination, Ms. Hooker testified that Defendant
had told her on more than one occasion between January and April of 2008 that he was
selling Lortabs. The trial court then instructed the jury as follows:
THE COURT: All right, ladies and gentlemen, let me just kind of
explain something to you, give you an instruction. If
from the proof you find that the defendant has
committed a crime or crimes other than that for which
he is on trial you may not consider such evidence to
prove his disposition to commit the crime for which
he’s on trial in this case. However, you can use that
evidence for the limited purpose of determining
whether it provides a complete story of the crime in
this case, in other words the evidence may be
considered by you where the prior crime and the
present alleged crime are logically related or
connected or you may find that it involves intent, in
other words the defendant’s intent that such evidence
may be considered by you if it tends to establish that
the defendant actually intended to commit the crime of
which he is presently charged. But such evidence of
those other crimes, if considered by you for any
purpose, must not be considered for any purpose other
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than what I’ve just specifically stated. If each of you
understand that and can follow that please raise your
hand. Again, let the record reflect all jurors have
raised their hand[s]. . . .
We agree with the State that Defendant has waived this issue by not making a
contemporaneous objection to Ms. Hooker’s testimony at trial. See Tenn. R. App. P. 36(a)
(a party is not entitled to relief if the party failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error). Although defense counsel
initially objected to Ms. Hooker’s testimony, as summarized by the prosecutor to the trial
court prior to trial, defense counsel then opened the door to her testimony of Defendant’s
prior drug sales by asking her about her knowledge of it during cross-examination. The State
argued, and the trial court, and ultimately, the Defendant, all agreed that Ms. Hooker’s
testimony during cross-examination was misleading. Although Ms. Hooker had not seen
Defendant sell Lortabs to anyone, she did have personal knowledge that he had sold them
because Defendant told her that he had. As the State points out on appeal, defense counsel
offered the “remedy” to Ms. Hooker’s misleading testimony on cross-examination. The trial
court allowed Ms. Hooker’s redirect testimony, as suggested by defense counsel, in order to
avoid confusing the jury. Defendant cannot challenge on appeal a remedy he supported and
acquiesced in at trial. Defendant is not entitled to relief on this issue.
III. Presentment
Defendant asserts that the Presentment in this case is facially invalid because it
charges Defendant with two counts each of the sale and delivery of a Schedule III controlled
substance, a Class C felony, when in fact, the offenses for which Defendant was charged and
convicted are Class D felonies. The State responds that Defendant has waived this issue
because he did not raise it either in a pretrial motion or in his motion for new trial. Tenn. R.
Crim. P. 12(b)(2) (a motion alleging a defect in the indictment must be raised prior to trial
or the issue is waived); Tenn. R. App. P. 3(e) (an issue must be raised in a motion for new
trial or it is waived). The State further asserts that even if the issue is not deemed waived,
the presentment is sufficient to put Defendant on notice of the charges he would have to
defend. We agree with the State.
After the jury was sworn in this case, the State moved to amend the presentment. The
prosecutor noted that the presentment erroneously classified the charges as Class C felonies,
rather than Class D felonies. Defense counsel objected to the amendment. The trial court
noted that the erroneous classification was “surplusage,” and that it did not impair
Defendant’s ability to defend himself, but that the court could not allow an amendment to the
presentment without Defendant’s consent because jeopardy had attached. Therefore, the
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court denied the prosecutor’s request. The court stated, “I don’t find that it in any way
prejudices the defendant, the fact that it says a C as opposed to a D.”
Pursuant to Tennessee Code Annotated section 40-13-202, an indictment or
presentment must state the facts constituting the offense in ordinary and concise language,
without prolixity or repetition, in a manner so as to enable a person of common
understanding to know what is intended, and with that degree of certainty which will enable
the court, on conviction, to pronounce the proper judgment. If the language of the indictment
clearly advises the petitioner of the crime for which he is charged, provides a basis for proper
judgment, and protects the petitioner from double jeopardy, the indictment comports with the
requirements of the statute. A charging instrument is not defective because of the inclusion
of surplusage if, after eliminating the surplusage, the offense is still sufficiently charged.
State v. Culp, 891 S.W.2d 232, 236 (Tenn. Crim. App. 1994).
Count 1 of the presentment in this case alleged as follows:
The Grand Jurors for Sullivan County, Tennessee, being duly empanelled
and sworn, upon their oath present that VICTOR MCMILLER on or about
February 11, 2008, in the State and County aforesaid and before the finding
of this presentment did unlawfully, feloniously and knowingly sell
Dihydrocodeinone, a Schedule III Controlled Substance, contrary to T.C.A.
§ 39-17-417, a Class C felony, and against the peace and dignity of the State
of Tennessee.
Count 2 contains exactly the same language, except that “deliver” is in place of “sell,”
and Counts 3 and 4 allege the sale and delivery on April 23, 2008. Although the presentment
does not include a reference to which statutory subsection Defendant was alleged to have
violated, it is clear that he was charged with the sale and delivery of dihydrocodeinone, a
Schedule III controlled substance, which, under Tenn. Code Ann. § 39-17-417, is a Class D
felony. Tenn. Code Ann. § 39-17-417(d)(1).
We note that the judgments correctly reflect that Defendant’s convictions were Class
D felonies. The classification of an offense in the indictment or presentment is not required
by the statute. Therefore, we agree with the trial court that the erroneous classification of the
offenses was surplusage. Defendant is not entitled to relief on this issue.
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IV. Consecutive sentencing
Defendant asserts that the trial court erred by imposing consecutive sentences.
Specifically, Defendant contends that the aggregate sentences imposed are not reasonably
related to the severity of the offenses.
On appeal, the party challenging the sentence imposed by the trial court has the burden
of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing
Comm’n Comments; see also State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). When a
defendant challenges the length, range, or manner of service of a sentence, it is the duty of
this Court to conduct a de novo review on the record with a presumption that the
determinations made by the court from which the appeal is taken are correct. Tenn. Code
Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn. 1999); see also
State v. Carter, 254 S.W.3d 335, 344-45 (Tenn. 2008). If our review reflects that the trial
court failed to consider the sentencing principles and all relevant facts and circumstances,
then review of the challenged sentence is purely de novo without the presumption of
correctness. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991); see also Carter, 254 S.W.3d
at 344-45. In conducting a de novo review of a sentence, this Court must consider: (a) the
evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and argument as to the sentencing alternatives; (d) the nature and
characteristics of the criminal conduct involved; (e) evidence and information offered by the
parties on the mitigating and enhancement factors set forth in Tennessee Code Annotated
sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee’s sentencing practices for similar
offenses; and (g) any statement the defendant wishes to make in his own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b); see also Carter, 254 S.W.3d at 343; State v.
Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).
A trial court may impose consecutive sentencing upon a determination that one or
more of the criteria set forth in Tennessee Code Annotated section 40-35-115(b) exists. State
v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). As relevant here, this section
permits the trial court to impose consecutive sentences if the court finds that either “(1) [t]he
defendant is a professional criminal who has knowingly devoted the defendant’s life to
criminal acts as a major source of livelihood;” or “(2) [t]he defendant is an offender whose
record of criminal activity is extensive[.]” Tenn. Code Ann. § 40-35-115(b)(1)-(2). The
length of the sentence, when consecutive in nature, must be “justly deserved in relation to the
seriousness of the offense” and “no greater than that deserved” under the circumstances.
Tenn. Code Ann. § 40-35-102(1), -103(2). Whether sentences are to be served concurrently
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or consecutively is a matter addressed to the sound discretion of the trial court. State v.
Hastings, 25 S.W.3d 178, 181 (Tenn. Crim. App. 1999).
In imposing consecutive sentences in this case, the trial court found:
THE COURT: Now, in looking and making a determination about
whether a sentence should be – these Counts One and
Three should be consecutive or concurrent with each
other, . . . . [F]rankly there are two [statutory factors]
that I need to consider in this case. One is whether or
not you are a professional criminal, that you have
knowingly devoted your life to criminal activity as a
source of livelihood. If you look at the incidents that
the State has pointed out in their enhancement notice,
the ones that they pointed out basically are all crimes
either where it involves stealing, defrauding another
person or the sale of drugs; that’s credit card fraud,
forgery, aggravated burglary and theft, facilitation of
drug sales, drug sales, auto burglary, grand larceny,
receiving stolen property. All of those are crimes in
which you’re using criminal enterprises for the
purpose of obtaining income, frankly. And so I do
find based upon that that you basically have used your
adult life and the crimes that you have committed have
primarily been for the purpose of using criminal acts
as a major source of livelihood. . . . [B]ecause of your
limited employment history it appears that every time
that you’re out of custody you’re committing what I
would consider to be theft type crimes of illegal
crimes that enable you to obtain income. So I find
that you’re a professional criminal and I find by a
preponderance of the evidence that you’re a
professional criminal who has knowingly devoted
your life to criminal acts as a major source of
livelihood.
I also find – the second factor that I find, too, is that
you have a record of criminal activity that’s extensive.
I mean of course all these charges, convictions that the
State has introduced are in there and they’re reflected
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but in addition that there are other charges that are set
out in your presentence report, a prior assault charge
in 2000, or conviction in 2000. Let’s see, petty
larceny in General Sessions Court. But all of those
were, all those added together in my opinion creates
what I find to be by a preponderance of the evidence
an extensive record of criminal activity.
The record supports the trial court’s conclusion that Defendant had an extensive
criminal history and that he was a professional criminal, although it is well-established that
a finding only one of the statutory factors is sufficient to warrant the imposition of
consecutive sentencing. See Adams, 973 S.W.2d at 231. Defendant is not entitled to relief
on this issue.
Finally, Defendant contends that the trial court abused its discretion when it refused
to waive the fines imposed by the jury. At the conclusion of the trial, the jury assessed a fine
of $25,000.00 for each conviction pursuant to Tennessee Code Annotated § 39-17-428. At
the sentencing hearing, Defendant asked the court to waive the fines because the court had
found that Defendant was indigent and because Defendant would be incarcerated for the next
24 years and unable to pay the fines. The trial court refused to waive the fines, finding that
Defendant was “an able-bodied person,” and that the jury had not imposed the maximum
fines, apparently taking into consideration Defendant’s “situation and circumstances.” The
trial court noted that even though Defendant was on disability, “it was not appropriate . . .
to reverse the jury’s decision on the fines.” Because Defendant’s convictions in Counts 2
and 4 were merged with his convictions in Counts 1 and 3, the trial court also noted that there
would be no fine in those two counts.
This Court has held that “[a] declaration of indigency, standing alone, does not . . .
immunize the defendant from fines.” State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.
App. 1996). Indigency is just one factor that this Court will look to when reviewing the
imposition of a fine. Alvarado, 961 S.W.2d at 153. In State v. Beasley, the trial court
acknowledged the Defendant’s indigence but imposed the fine, noting that she might become
able to pay after she left prison. No. 01C01-9801-CR-00018, 1998 WL 626989, at *3-4
(Tenn. Crim. App., at Nashville, Sept. 16, 1998), no perm. to app. filed. This Court affirmed
the fine, explaining that a defendant’s indigence is only one of several factors relevant to the
determination of an appropriate fine. Id.
Because the trial court considered the appropriateness of the fines in this case and
made findings concerning Defendant’s ability, or future ability, to pay the fines, we will
afford the trial court a presumption of correctness. The trial court did not err by denying
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Defendant’s request to waive the fines imposed by the jury. Defendant is not entitled to
relief on this issue.
CONCLUSION
Based on the foregoing, the judgments of the trial court are affirmed.
_________________________________
THOMAS T. WOODALL, JUDGE
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