State of Tennessee v. Gregory Gill ( 2019 )

02/11/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 4, 2018
STATE OF TENNESSEE v. GREGORY GILL
Appeal from the Circuit Court for Madison County
No. 16-423 Roy B. Morgan, Jr., Judge
___________________________________
No. W2018-00331-CCA-R3-CD
___________________________________
After a jury trial, Gregory Gill, Defendant, was convicted of two counts of possession of
cocaine with intent to sell or deliver, two counts of possession of marijuana with intent to
sell or deliver, four counts of unlawful possession of a firearm with the intent to go armed
during the commission of or attempt to commit a dangerous felony, one count of
unlawful possession of a firearm after being convicted of a felony involving the
attempted use of force, violence, or a deadly weapon, one count of possession of drug
paraphernalia, and one count of evading arrest. The trial court sentenced Defendant to a
total effective sentence of thirty-eight years in the Tennessee Department of Correction.
On appeal, Defendant asserts that: (1) the trial court erred in denying his motion to
suppress; (2) the evidence was insufficient for a rational trier of fact to have found him
guilty beyond a reasonable doubt; (3) the trial court erred in allowing the State to cross-
examine a defense witness about his pending criminal charges; and (4) the trial court
imposed an excessive sentence. After a thorough review of the facts and applicable case
law, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.
George Morton Googe, District Public Defender, and Jeremy B. Epperson, Assistant
Public Defender, for the appellant, Gregory Gill.
Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jody Pickens, District Attorney General; and Lee Sparks, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factual and Procedural Background
On October 3, 2016, the Madison County Grand Jury indicted Defendant on the
following charges:
Count Charged offense
One Possession of 0.5 grams or more of cocaine with the intent to sell
Two Possession of 0.5 grams or more of cocaine with the intent to deliver
Three Possession of more than 0.5 ounce of marijuana with the intent to sell
Four Possession of more than 0.5 ounce of marijuana with the intent to
deliver
Five Unlawful possession of a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony
Six Unlawful possession of a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony
Seven Unlawful possession of a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony
Eight Unlawful possession of a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony
Nine Unlawful possession of a firearm after being convicted of a felony
involving the attempted use of force, violence, or a deadly weapon
Ten Possession of drug paraphernalia
Eleven Evading arrest
Motion to suppress hearing
Defendant filed a motion to suppress the results of Sergeant Samuel Gilley’s
warrantless search of his vehicle. He argued that Investigators Scott Cornelison and
Kristi Foster “exercised a show of authority in attempting to take Defendant into custody
despite having no evidence that . . . Defendant was committing a crime or was about to
commit a crime.”
Sergeant Gilley testified that he worked for the Jackson Police Department
(“JPD”) in the narcotics unit. On March 23, 2016, Sergeant Gilley received a description
of Defendant from the U.S. Marshals Service and learned that there was an outstanding
arrest warrant from Texas for Defendant for third degree felony assault strangulation or
suffocation. Sergeant Gilley also received a description of the vehicle that Defendant
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was driving. He encountered the vehicle, a blue Chrysler 200 with Colorado tags,1 at the
intersection of Lane Avenue and Highland. Sergeant Gilley, along with Investigators
Cornelison and Foster, followed the rental vehicle north on Highland. The rental vehicle
eventually turned into the parking lot of the Old Hickory Mall (“the Mall”). The rental
vehicle drove by the entrance to the Mall, and a passenger exited the vehicle. Sergeant
Gilley observed that the passenger did not match Defendant’s description. The rental
vehicle then continued into the parking lot and parked. Sergeant Gilley observed
Defendant get out of the driver’s side of the vehicle, put his hood over his head, and walk
towards the entrance to the Mall. Sergeant Gilley pulled his vehicle in front of the Mall
to let Investigators Cornelison and Foster, who were wearing plain clothes with a vest
marked “police,” exit the vehicle. Sergeant Gilley stayed in the vehicle so that he could
pursue Defendant if necessary. Defendant turned around, observed Investigators
Cornelison and Foster walking towards him, and “took off running through the [M]all.”
Investigators Cornelison and Foster pursued Defendant through the Mall. Sergeant
Gilley drove to the parked rental vehicle. When he exited his vehicle and approached the
rental vehicle, he “could smell marijuana coming from the vehicle.” Sergeant Gilley
shined a light into the rental vehicle and observed “a clear plastic cup laying in the back
floorboard” that contained “broken down marijuana[.]” Sergeant Gilley described the
smell as “a pungent marijuana odor.”2 Sergeant Gilley asked a patrol unit to unlock the
rental vehicle, and Sergeant Gilley then searched it. During the search, Sergeant Gilley
found “some packaged marijuana for resale, some packaged crack cocaine, digital scales,
[and a] firearm in the passenger compartment of the vehicle.” He stated that the
packaged marijuana weighed approximately thirty grams and that the packaged cocaine
weighed ten or eleven grams. Sergeant Gilley found the firearm, a semi-automatic Glock
handgun, under the driver’s seat. When Sergeant Gilley searched the rental vehicle’s
trunk, he found a bag that contained clothing, drug paraphernalia, baggies, and scales.
Sergeant Gilley also found Defendant’s identification in the trunk.
On cross-examination, Sergeant Gilley agreed that the marijuana in the cup was a
residual amount. Sergeant Gilley identified a receipt that was found in the rental vehicle
that had “Dreds” written on it. Sergeant Gilley explained that the Glock handgun was
under the driver’s seat with the handle facing the front of the seat. The handgun had a
laser sight attached that was plugged into a USB charger in the cigarette lighter.
1
At trial, Sergeant Gilley testified that a female rented the vehicle from Enterprise.
2
Sergeant Gilley explained that he identified the odor as marijuana based on his years of work as
a law enforcement officer as well as “over 300 hours . . . of specialized training in narcotics
identification[.]”
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Sergeant Richard Newbill testified that he worked for the JPD in the gang unit.
He also worked as an officer on the Gulf Coast Fugitive Task Force.3 On March 23,
2016, Sergeant Newbill assisted Sergeant Gilley in attempting to apprehend Defendant at
the Mall. Sergeant Gilley observed a vehicle that he believed contained Defendant, a
known fugitive.4 Sergeant Newbill learned from Sergeant Gilley that Defendant had left
the vehicle and was running away, so Sergeant Newbill headed to the Mall to assist.
Sergeant Newbill pursued Defendant to a nearby apartment complex. Sergeant Newbill
and other officers located Defendant under a vehicle in the parking lot of the apartment
complex. Defendant was taken into custody, and Sergeant Newbill searched Defendant’s
person incident to that arrest.
On cross-examination, Sergeant Newbill explained that he had a description of the
vehicle that Defendant may have been using, and Sergeant Gilley first observed a vehicle
that fit the description south of the Mall. On redirect examination, Sergeant Newbill
explained that, prior to executing the arrest warrants for Defendant, he viewed a
photograph of Defendant. At the time of the arrest, Sergeant Newbill was able to identify
Defendant based on the photograph and based on Sergeant Gilley’s physical description
of Defendant.
Investigator Cornelison testified that he worked in the Jackson-Madison County
Metro Narcotics Unit. On March 23, 2016, Investigator Cornelison was working with
Investigator Foster and Sergeant Gilley to apprehend Defendant for the purpose of
arresting him on active warrants. The law enforcement officers “were following up on
some information received on a vehicle and two male subjects possibly selling drugs, not
at the [M]all but at another location.” The officers “conducted surveillance and followed
[the rental] vehicle to the [M]all.” Investigator Cornelison observed Defendant exit the
vehicle and walk toward the Mall. Investigator Cornelison pulled his vehicle in front of
the Mall, exited the vehicle, and attempted to catch up to Defendant. Defendant turned
around, observed that Investigator Cornelison was following him, and “took off running.”
Investigator Cornelison yelled, “Stop. Stop. Police.”
The trial court credited the testimony of Sergeant Gilley, Sergeant Newbill, and
Investigator Cornelison. The trial court found that the law enforcement officers “had
prior knowledge” about Defendant’s active warrants from Texas because the U.S.
3
At trial, Sergeant Newbill explained that the Task Force was a “task force through the United
States Marshals Service where [law enforcement officers] apprehend fugitives from justice subject to
arrest warrants.”
4
Sergeant Newbill explained that the Task Force obtained its own warrants and relied on
“collateral” leads from other task forces. The Task Force received a collateral lead from the U.S.
Marshals Task Force in Texas about warrants issued for Defendant on the charges of “felony assault,
strangulation and suffocation.”
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Marshals Office distributed a photograph and description of Defendant along with the
warrants. The trial court concluded that the search incident to Defendant’s arrest was
proper and denied the motion to suppress as to the search of Defendant’s person. The
trial court found that Sergeant Gilley smelled an odor emanating from the rental vehicle
that he believed to be marijuana and observed a substance in the rental vehicle that he
believed to be marijuana “based on his education, training, and experience[.]” The trial
court held that Sergeant Gilley had probable cause to search the rental vehicle based on
his observations and smelling of marijuana. The trial court concluded that:
considering all of this, still the potential of someone else coming back, the
mobility of the vehicle, the reduced expectation of privacy, the probable
cause having been established from plain view and smell, . . . the motion to
suppress should be denied under the circumstances, and any items found in
the vehicle certainly could be offered during the course of the trial of the
matter.
Jury trial
The State’s proof
At trial, Investigator Cornelison testified similarly to his testimony at the
suppression hearing. Additionally, he testified that, after he made contact, Defendant ran
from the Mall’s front entrance “all the way down to . . . two jewelry stores[.]” Defendant
then ran towards the entrance of J.C. Penney’s salon, and Investigator Cornelison lost
sight of Defendant. When Investigator Cornelison realized that he was not going to be
able to apprehend Defendant, he transmitted information on Defendant’s location to the
other law enforcement officers via radio. Investigator Cornelison was present when
Defendant was apprehended at a nearby apartment complex. On cross-examination,
Investigator Cornelison stated that he observed at least two people in the rental vehicle
when he and the other law enforcement officers first spotted the vehicle.
Sergeant Newbill testified similarly to his testimony at the suppression hearing.
He also stated that, after Defendant ran from Investigator Cornelison in the Mall, law
enforcement officers began canvassing the area around J.C. Penney and a nearby
apartment complex. Officers observed Defendant “running between two cars[,]” but they
were unable to apprehend him. Officers expanded their search perimeter and brought in a
helicopter and canine officers to assist in the search. Officers finally apprehended
Defendant under a vehicle in the parking lot of the apartment complex. Officers arrested
Defendant, searched his person, and found keys to a Chrysler vehicle.
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Andrea Hays testified that she worked as a detention facility specialist for the
Madison County Sheriff’s Office. Ms. Hays previously composed a report about an
incident that occurred at the Madison County Jail on March 24, 2016. On that date,
Defendant informed Ms. Hays that another inmate, Rondarious Bond, stole $1,100 from
him. Ms. Hays informed Captain Wilson, who arranged for a corrections officer and the
maintenance professional, Tony Campbell, to search the plumbing of a toilet. Mr.
Campbell pushed a steel rod into “a clean-out six-inch pipe” behind the toilet and pulled
out a potato chip bag. He found $1,070 in cash wrapped in cellophane inside the potato
chip bag.
Sergeant Gilley testified similarly to his testimony at the suppression hearing. He
also testified that when he searched the trunk of the rental vehicle, he found a blue
backpack that contained a jar with Defendant’s driver’s license, a small plastic bag with a
small amount of cocaine, a set of digital scales, and a rolled up dollar bill. Sergeant
Gilley found .40-caliber ammunition in both the center console and the blue backpack.
He also found a Gander Mountain receipt dated March 17, 2016, for a Crimson Trace
laser sight and a second receipt showing that the buyer returned the Crimson Trace laser
sight and then purchased a Genesis laser sight and protection plan.
Sergeant Gilley testified that he directed investigators to go to the Madison County
Jail and recover money that had been found in a cell. Sergeant Gilley identified a CD
that contained the audio recording of the visitation room at the Madison County Jail from
March 24, 2016. The audio recording was played for the jury. Sergeant Gilley identified
the male voice on the recording as that of Defendant. Approximately forty-five minutes
into the recording, Defendant described his interaction with law enforcement during the
offenses and mentioned that he “lost [his] phone in the woods” and that “they took . . .
almost eleven hundred dollars, some soft, some weed, that damn glock[.]” Defendant
described the gun as “a forty” and “the twenty-two glock” with “a beam” and
“extendo[.]” Sergeant Gilley explained that “extendo” referred to an extended firearm
magazine and that “beam” referred to a laser sight on a firearm. He also explained that
“soft” referred to powder cocaine and “weed” referred to marijuana.
Sergeant Gilley testified that individuals frequently used plastic bags and digital
scales to measure out and package controlled substances for illegal sale and distribution.
He estimated that the marijuana found in the rental vehicle was worth between $500 and
$600 and that the cocaine was worth between $1,000 to $3,000. Sergeant Gilley stated
that drug dealers frequently carried weapons to discourage individuals from stealing
proceeds of drug sales or the controlled substance. Sergeant Gilley testified that, in his
opinion, the amount of cocaine that was recovered from the rental vehicle was not
consistent with personal use because cocaine users do not carry cocaine around. Instead,
cocaine users generally purchase smaller amounts and use the drug rather than carry the
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drug with them. Sergeant Gilley testified similarly that the amount of marijuana
recovered in the rental vehicle was not consistent with personal use because “most
marijuana users that [law enforcement] run into are not going to run around with over a
half ounce of marijuana on them because they know a half ounce or more of marijuana is
a felony.” Sergeant Gilley stated that the fact that Defendant had over $1,000 in his
possession in the Madison County Jail indicated that Defendant had recently sold some
drugs.
On cross-examination, Sergeant Gilley testified that drug users frequently used a
rolled-up dollar bill to snort cocaine, and he agreed that finding a rolled-up bill in the
same vicinity of drugs would indicate that the drugs were for personal use. He agreed
that Defendant could have learned that law enforcement recovered cocaine, marijuana,
and a firearm during the offenses from his arraignment hearing and other legal
proceedings that occurred prior to the visitation recording. During redirect examination,
Sergeant Gilley stated that drug traffickers use rental vehicles to “move drugs around”
because they will not lose ownership of the rental car through forfeiture if arrested on
drug charges. He also explained that drug traffickers do not rent vehicles under their
name because “obviously they don’t want to leave anything that ties back to them[.]”
Brian Simpson testified that he was a manager at Gander Mountain. In March
2016, Mr. Simpson spoke with Sergeant Gilley about a customer’s transaction. Mr.
Simpson recognized Defendant from a transaction at Gander Mountain; Defendant came
into the store around 9:00 p.m. and purchased a laser sight. Defendant left the store but
returned approximately twenty minutes later to return the laser sight and purchase a
different laser sight. Mr. Simpson recalled that he installed the new laser sight on
Defendant’s firearm, a Glock. Mr. Simpson identified the two receipts that were found in
the rental vehicle as coming from the transactions that Defendant had at Gander
Mountain. He noted that the receipts showed that Defendant paid for both laser sights
with cash.
Special Agent Peter Hall testified that he worked for the Tennessee Bureau of
Investigation (“TBI”) as a forensic scientist. Special Agent Hall tested one bag of
marijuana that was recovered from the rental vehicle; the substance weighed 17.06
grams. He also testified that the gross weight5 of the second bag of marijuana was 15.57
grams. Special Agent Hall tested the powder substance that officers recovered from the
rental vehicle and confirmed that it was cocaine hydrochloride; the gross weight of this
bag of cocaine was 3.42 grams.
5
Special Agent Hall explained that the gross weight of a substance included the bag containing
the substance.
-7-
The State and Defendant stipulated that Defendant had previously been convicted
of a felony that involved the use or attempted use of force, violence, or a deadly weapon.
Defendant’s proof
Brendan Tyler Burns testified that, on March 23, 2016, he went to get a haircut on
Lane Avenue. He explained that he was driving a vehicle that was rented for him by a
female friend, “Dannie Ray.” After Mr. Burns’ haircut, Defendant, who had also gotten a
haircut, drove Mr. Burns in the rental vehicle to the Mall. When they arrived at the Mall,
Defendant dropped Mr. Burns off at the entrance of the Mall and parked the rental
vehicle. As Defendant was walking into the Mall, Mr. Burns observed an officer enter
behind Defendant and yell Defendant’s name. Defendant “took off running.” Mr. Burns
said that the officer did not approach him, so he left the Mall, went across the street, and
got a ride from his girlfriend because Defendant had the keys to the rental vehicle.
Mr. Burns explained that he owned a backpack found in the front seat of the rental
vehicle and “some powder” and “some weed” in the middle console of the passenger
compartment. He stated that he also owned several backpacks that were in the trunk of
the rental vehicle. He noted that Defendant put a backpack in the trunk when they drove
together to the Mall. Mr. Burns thought that Defendant’s backpack was green and stated
that he owned the black backpack and the blue backpack. He also admitted that he had
plastic sandwich baggies in one of his backpacks in the trunk, but he denied that there
were any drugs in the trunk. He also denied that he owned the firearm that was found in
the rental vehicle; however, he admitted that he gave Defendant some bullets. Mr. Burns
explained that he borrowed Defendant’s driver’s license because he did not have a
driver’s license and needed identification “to do something[.]” However, he later stated
that he used Defendant’s driver’s license to separate powder cocaine for snorting. He
stated that he put Defendant’s license in “a little jar [that he] used to have weed in[.]”
Additionally, he owned the wrapped-up dollar bill, which he said he used to snort powder
cocaine with his friends, and a set of digital scales. Mr. Burns explained that the vehicle
rental agreement had “dreads” written on it because he used to wear his hair in dreads, so
the female friend that rented the vehicle for him wrote “dreads” instead of his name. He
stated that he was not charged with any criminal offenses related to his possession of the
items found in the rental vehicle. He asserted that Defendant was unaware that Mr.
Burns had drugs and scales in the rental vehicle.
On cross-examination, Mr. Burns admitted that he was a drug dealer. He agreed
that he was living in the same jail cell in the Madison County Jail as Defendant from
September 2016 through December 2016. Mr. Burns memorialized his version of the
events underlying the offenses at issue in writing and sent it in a letter to defense counsel
on November 11, 2016. He agreed that he was incarcerated in the same cell in the
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Madison County Jail as Defendant from February 24, 2017, to April 4, 2017. He wrote
his version of the events in an affidavit on March 18, 2017. He agreed that he had not
shared the details of his version of events with anyone other than Defendant and defense
counsel prior to completing the affidavit. He also asserted that he did not discuss
Defendant’s criminal charges with Defendant while they were incarcerated together. Mr.
Burns agreed that he was currently incarcerated on the charge of first degree murder and
attempted aggravated robbery of a TBI special agent.
Lilly Gill testified that she was Defendant’s mother. Approximately a week
before the current offenses, Ms. Gill gave Defendant about $600 to help him pay living
expenses until he found a job. Amy Cooper testified that Defendant was her boyfriend.
Around the time of the offenses, Ms. Cooper gave Defendant approximately $700.
Defendant waived his right to testify and rested his case.
The State’s rebuttal proof
Sergeant Gilley testified that the passenger who got out of the rental vehicle at the
Mall entrance “was definitely 100 percent not Brendan Burns.” Sergeant Gilley
described the passenger as a “short, black-skinned” man with “shoulder-length
microbraids[.]” He testified that he was familiar with Mr. Burns prior to the offenses at
issue. Sergeant Gilley identified the lease agreement of the rental vehicle and stated that
the name of the lessee was “Olivia Vaulx.” He also noted that the jar that contained
Defendant’s driver’s license also contained several other cards of similar shape and
material that could also have been used for separating cocaine. On cross-examination,
Sergeant Gilley stated that the rental vehicle stopped “right in front of [him]” and that he
“looked at the passenger.”
Captain Brian Wilson testified that he worked as the assistant jail administrator at
the Madison County Jail. He stated that Defendant and Mr. Burns were in the same
housing area, A201, from August 11, 2016, through April 4, 2017. He also testified that
Defendant and Mr. Burns were housed in the same cell during the following dates:
August 11, 2016, through September 1, 2016; September 12, 2016, through September
21, 2016; September 24, 2016, through December 26, 2016; and February 24, 2017,
through April 4, 2017.
The jury found Defendant guilty as charged on all counts.
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Sentencing hearing
The trial court admitted the presentence report and certified copies of Defendant’s
prior judgments into evidence. In 2004, Defendant entered a best interest plea to two
counts of aggravated assault. Defendant also pled guilty to aggravated robbery in 2004.
In 2016, Defendant was convicted of driving on a suspended license. The trial court
stated that it had considered “the evidence presented at trial and the evidence presented
today and arguments of counsel and presentence report, exhibits[,]” “[t]he sentencing
guidelines or principles[,]” “the nature and characteristics of the criminal conduct
involved, [and] the enhancing and mitigating factors argued by counsel.” The trial court
noted that the State and Defendant agreed that Defendant was a Range II offender.
The trial court found that Defendant had a previous history of criminal convictions
or criminal behavior, in addition to those needed to establish Defendant’s sentencing
range; the trial court applied this factor to all of Defendant’s convictions. The trial court
found that Defendant possessed or employed a firearm during the commission of the
offense and applied this factor to counts one through four. The trial court also found that
Defendant was released on bond during the commission of the offenses because evidence
in the presentence report showed that Defendant was on bond on charges from Texas at
the time he committed the current offenses. The trial court found that Defendant’s
criminal conduct neither caused nor threatened serious bodily injury and stated that this
factor favored Defendant. The trial court ordered Defendant to serve the following
sentences:
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Count Sentence Release eligibility percentage Alignment
One Eighteen years Thirty-five percent
Two Eighteen years Thirty-five percent Merged with count
one
Three Four years Thirty-five percent Consecutive to
count one
Four Four years Thirty-five percent Merged with count
three
Five Eight years Three years at 100% and five Consecutive to
years at thirty-five percent count three
Six Eight years Three years at 100% and five Merged with count
years at thirty-five percent five
Seven Eight years Three years at 100% and five Merged with count
years at thirty-five percent five
Eight Eight years Three years at 100% and five Merged with count
years at thirty-five percent five
Nine Eight years Thirty-five percent Consecutive to
count five
Ten Eleven months and Seventy-five percent Concurrent with
twenty-nine days count one
Eleven Eleven months and Seventy-five percent Concurrent with
twenty-nine days count one
The trial court noted that, by statute, counts five through eight were to be served
consecutively to counts one through four. Regarding count nine, the trial court
determined that Defendant was “a professional criminal who has knowingly devoted [his]
life to criminal acts as a major source of livelihood.” The trial court based this finding on
the current case as well as Defendant’s “whole criminal history[.]” The trial court also
found that Defendant was “an offender whose record of criminal activity [wa]s
extensive” and that Defendant was “a dangerous offender whose behavior indicate[d]
little or no regard for human life and no hesitation about committing a crime in which the
risk to human life [wa]s high[.]” The trial court found that “[t]he circumstances
surrounding the commission of the offense[s] [were] aggravated” and that “the aggregate
length of the sentence reasonably relate[d] to the offense[s] of which . . . Defendant [was]
convicted.” Thus, Defendant received a total effective sentence of thirty-eight years in
the Tennessee Department of Correction. Defendant filed a timely motion for new trial,6
which the trial court denied. Defendant now timely appeals.
6
Defendant prematurely filed his motion for new trial before the judgments were entered.
However, we will address Defendant’s issues on the merits because the State did not raise this issue on
appeal and we discern no prejudice to the State. See State v. Siliski, 238 S.W.3d 338, 374 (Tenn. Crim.
App. 2007).
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II. Analysis
Motion to suppress
Defendant asserts that the trial court should have granted the motion to suppress
Investigator Cornelison’s search of the rental vehicle and seizure of evidence. He argues
that Investigator Cornelison had no evidence that he was committing or was about to
commit a crime. He also points out that he was arrested at a different location than the
rental vehicle, and thus, Investigator Cornelison could not search the rental vehicle as a
search incident to Defendant’s arrest. The State responds that “[t]he search was properly
conducted pursuant to the automobile exception to the warrant requirement” and that
“Sergeant Gilley had probable cause to search the car when he smelled the odor of
marijuana emanating from the vehicle and when he could see, in plain view, a cup with
marijuana in it sitting on the floorboard.”
When reviewing a motion to suppress, this court is bound by the trial court’s
findings of fact unless the evidence preponderates otherwise. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). Questions of credibility, the weight and value of the evidence, and
resolutions of conflicts in the evidence are resolved by the trial court. Id. The prevailing
party is entitled to the strongest legitimate view of the evidence and all reasonable
inferences that may be drawn therefrom. Id. We review the trial court’s conclusions of
law de novo. State v. Carter, 160 S.W.3d 526, 531 (Tenn. 2005).
The United States and Tennessee constitutions protect citizens from unreasonable
searches and seizures. U.S. Const. amend. IV; Tenn. Const. art. I, § 7; State v. Binette, 33
S.W.3d 215, 218 (Tenn. 2000). Generally, “under both the federal and state
constitutions, a warrantless search or seizure is presumed unreasonable, and evidence
discovered as a result thereof is subject to suppression unless the State demonstrates that
the search or seizure was conducted pursuant to one of the narrowly defined exceptions to
the warrant requirement.” State v. Yeargan, 958 S.W.2d 525, 629 (Tenn. 1997).
In State v. Saine, the Tennessee Supreme Court set out the following standard for
the automobile exception to the Fourth Amendment’s warrant requirement:
The “automobile exception” to the warrant requirement permits an
officer to search an automobile if the officer has probable cause to believe
that the automobile contains contraband. The rationale for the automobile
exception is two-fold. First, it is often impractical for officers to obtain
search warrants in light of the inherent mobility of automobiles. Second,
individuals have a reduced expectation of privacy in their automobiles. If
the officer has probable cause to believe that the automobile contains
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contraband, the officer may either seize the automobile and then obtain a
warrant or search the automobile immediately.
297 S.W.3d 199, 207 (Tenn. 2009) (internal citations omitted). The supreme court also
held that “the automobile exception does not require a separate finding of exigency under
the Tennessee Constitution.” Id. This court has previously held that “[t]he detection of
the odor of marijuana [i]s sufficient to allow the subsequent warrantless search of the
automobile[.]” Hicks v. State, 534 S.W.2d 872, 874 (Tenn. Crim. App. 1975); see also
State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976).
The Supreme Court of the United State explained in United States v. Ross, 456
U.S. 798, 824 (1982), that “[t]he scope of a warrantless search of an automobile” is
“defined by the object of the search and the places in which there is probable cause to
believe that it may be found.” In State v. David C. Volz, No. 01C01-9604-CC-00171,
1997 WL 719050, at *5 (Tenn. Crim. App. Nov. 19, 1997), perm. app. denied (Tenn.
Aug. 3, 1998), this court applied Ross and reversed the trial court’s suppression of
evidence obtained during a warrantless search of the defendant’s vehicle. Officers found
marijuana in a backpack in the trunk of the defendant’s vehicle. Id. This court held that
officers had probable cause to unzip the backpack in the trunk under the automobile
exception based on information from a confidential informant that individuals in the
vehicle would be at a particular location for a period of time for the purpose of
conducting drug transactions. Id.
The plain view doctrine, another exception to the Fourth Amendment’s prohibition
against warrantless searches, originated in Coolidge v. New Hampshire, 403 U.S. 443,
465 (1971) (plurality opinion), wherein the United States Supreme Court held that “under
certain circumstances the police may seize evidence in plain view without a warrant.” In
Tennessee, the plain view doctrine applies when:
(1) the officer did not violate constitutional mandates in arriving at the
location from which the evidence could plainly be seen; (2) the officer had
a lawful right of access to the evidence; and (3) the incriminating character
of the evidence was “immediately apparent,” i.e., the officer possessed
probable cause to believe that the item in plain view was evidence of a
crime or contraband.
State v. Coulter, 67 S.W.3d 3, 43 (Tenn. Crim. App. 2001) (citing Minnesota v.
Dickerson, 508 U.S. 366, 375 (1993); Soldal v. Cook County, Illinois, 506 U.S. 56, 65-66
(1992); Horton v. California, 496 U.S. 128, 136-37 (1990); Arizona v. Hicks, 480 U.S.
321, 326-27 (1987)); see also State v. Cothran, 115 S.W.3d 513, 524-25 (Tenn. Crim.
- 13 -
App. 2003) (recognizing that both the United States Supreme Court and Tennessee courts
no longer require that seized items be inadvertently discovered).
Here, the trial court found that Sergeant Gilley smelled an odor emanating from
the rental vehicle that he believed to be marijuana and observed a substance in the rental
vehicle that he believed to be marijuana “based on his education, training, and
experience[.]” Thus, the trial court concluded that Sergeant Gilley had probable cause to
search the rental vehicle based on his plain view observation and smelling of marijuana.
The trial court also relied on the automobile exception for denying the motion to suppress
the results of the search of the rental vehicle because it considered Defendant’s reduced
expectation of privacy in the vehicle, the possibility that Defendant or his passenger
could have returned to the vehicle, and the fact that the vehicle was inherently mobile.
We conclude that the trial court did not abuse its discretion by denying
Defendant’s motion to suppress because the warrantless search of the rental vehicle was
supported by both the automobile exception and the plain view exception. Sergeant
Gilley recognized the odor of marijuana emanating from the rental vehicle based on his
years of experience as a law enforcement officer. The “pungent marijuana odor” gave
Sergeant Gilley sufficient probable cause to search the rental vehicle, including the trunk,
under the automobile exception because he reasonably believed that the vehicle contained
a controlled substance, marijuana. See David C. Volz, 1997 WL 719050, at *5; see also
State v. Tywan Garcia Armstrong, No. M2008-02837-CCA-R3-CD, 2010 WL 987207, at
*6 (Tenn. Crim. App. Mar. 18, 2010) (concluding that an officer had probable cause to
search the entire vehicle for “marijuana, guns, and any evidence of the undercover drug
buy” under the automobile exception because the officer smelled marijuana), no perm.
app. filed.
Additionally, under the plain view exception, Sergeant Gilley did not violate any
constitutional mandates by approaching the rental vehicle in the Mall parking lot. When
Sergeant Gilley arrived at the vehicle, he shone a light into the vehicle and observed “a
clear plastic cup laying in the back floorboard of the vehicle” that contained “broken
down marijuana[.]” Lastly, the incriminating nature of the contraband, the appearance of
marijuana, was “immediately apparent” to Sergeant Gilley based on his experience as a
law enforcement officer who had previously dealt with controlled substances. Thus,
Sergeant Gilley had probable cause to search the rental vehicle based on the marijuana in
plain view in the vehicle. See State v. Bryan Herman Dowdy, No. W2000-01011-CCA-
R3-CD, 2001 WL 91732, at *5 (Tenn. Crim. App. Jan. 26, 2001) (concluding that
officers had probable cause to search the defendant’s vehicle because they could see beer
bottles in plain view in the vehicle), no perm. app. filed. Defendant is not entitled to
relief on this ground.
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Sufficiency of the evidence
Defendant argues that the State failed to introduce evidence sufficient to prove the
element of possession beyond a reasonable doubt in counts one through nine. He asserts
that the jury was confused about the element of possession based on the question that the
jury submitted to the trial court during jury deliberation. The State contends that the
evidence was sufficient to support Defendant’s convictions on all charges.
Our standard of review for a sufficiency of the evidence challenge is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).
A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).
Possession of cocaine and marijuana with the intent to sell or deliver
It is a criminal offense for a person to knowingly “[p]ossess a controlled substance
with intent to manufacture, deliver or sell the controlled substance.” Tenn. Code Ann. §
39-17-417(a)(4) (2016). Cocaine is a Schedule II controlled substance. Tenn. Code Ann.
§ 39-17-408(b)(4) (2016). Possession of cocaine weighing 0.5 grams or more with the
intent to sell or deliver the substance is a Class B felony. Tenn. Code Ann. § 39-17-
417(c)(1) (2016). Marijuana is a Schedule VI controlled substance. Tenn. Code Ann. §
39-17-415(a)(1) (2016). Possession of one-half ounce to ten pounds of marijuana with
the intent to sell or deliver is a Class E felony. Tenn. Code Ann. § 39-17-417(g)(1)
(2016).
Possession “may be either actual or constructive.” State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001). When a person “knowingly has direct physical control over a thing, at
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a given time, [that person] is then in actual possession of it.” State v. Edmondson, 231
S.W.3d 925, 928 (Tenn. 2007) (quoting BLACK’S LAW DICTIONARY 1163 (6th ed.
1990)). When a person knowingly has “the power and the intention at a given time to
exercise dominion and control over an object, either directly or through others[,]” that
person has constructive possession over the object. United States v. Craig, 522 F.2d 29,
32 (6th Cir. 1975) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.
1973)); see also State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981).
“Knowing” refers to a person who acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is
aware of the nature of the conduct or that the circumstances exist. A person
acts knowingly with respect to a result of the person’s conduct when the
person is aware that the conduct is reasonably certain to cause the result.”
Tenn. Code Ann. § 39-11-302(b) (2016). “Proof that a possession is knowing will
usually depend on inference and circumstantial evidence.” State v. Brown, 915 S.W.2d 3,
7 (Tenn. Crim. App. 1995). “The mere presence of a person in an area where drugs are
discovered is not, alone, sufficient to support a finding that the person possessed the
drugs.” State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987).
With regard to a determination of intent to sell or deliver, proof of intent usually
consists of circumstantial evidence and the inferences that can be reasonably drawn from
that evidence. See Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973); State v. Washington,
658 S.W.2d 144, 146 (Tenn. Crim. App. 1983) (observing that a jury may derive a
defendant’s intent from both direct and circumstantial evidence). The jury may infer
“from the amount of a controlled substance or substances possessed by an offender, along
with other relevant facts surrounding the arrest, that the controlled substance or
substances were possessed with the purpose of selling or otherwise dispensing.” Tenn.
Code Ann. § 39-17-419 (2016).
Initially, we will address Defendant’s contention that the jury was confused about
the element of possession because the jury asked the trial court a question during
deliberation. The jury’s question said, “If more than one person is in a vehicle and drugs
are found, is the driver automatically the owner?” Both the State and defense counsel
agreed that the trial court properly instructed the jury on possession, so the trial court
instructed the jury to review the instructions on possession. On appeal, we must presume
that the jury followed the trial court’s instructions. See State v. Lawson, 695 S.W.2d 202,
204 (Tenn. Crim. App. 1985). Any attempt to divine the meaning behind the jury’s
deliberations is not appropriate for our review of the sufficiency of the evidence. See
State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015) (quoting United States v. Zane, 495 F.2d
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683, 690 (2nd Cir. 1974)) (recognizing “the sanctity of the jury’s deliberations and the
strong policy against probing into its logic or reasoning”).
Special Agent Hall testified that the marijuana in one bag recovered from the
rental vehicle weighed 17.06 grams and that the gross weight of the second bag of
marijuana was 15.57 grams. Additionally, he testified that the gross weight of the
cocaine was 3.42 grams. Sergeant Gilley estimated that the marijuana found in the rental
vehicle was worth between $500 and $600 and that the cocaine was worth between
$1,000 and $3,000. Sergeant Gilley stated that drug dealers frequently carried weapons
to discourage individuals from stealing proceeds of drug sales or the controlled
substance. Sergeant Gilley testified that, in his opinion, the amount of cocaine that was
recovered from the rental vehicle was not consistent with personal use because cocaine
users do not carry cocaine around. Instead, cocaine users generally purchase smaller
amounts and use the drug rather than carry the drug with them. Sergeant Gilley testified
that, similarly, the amount of marijuana recovered in the rental vehicle was not consistent
with personal use because “most marijuana users that [law enforcement] run[s] into are
not going to run around with over a half ounce of marijuana on them because they know
a half ounce or more of marijuana is a felony.”
Officers also recovered a firearm, three sets of scales, and plastic baggies from the
rental vehicle. Further, Defendant informed Ms. Hays that another inmate stole $1,100
from him at the Madison County Jail, and Mr. Campbell later found $1,070 in a toilet
pipe in the jail. Sergeant Gilley testified that individuals frequently use plastic bags and
digital scales to measure out and package controlled substances for illegal sale and
distribution. Sergeant Gilley also stated that the fact that Defendant had over $1,000 in
his possession in the Madison County Jail indicated that Defendant had recently sold
some drugs. When the evidence is viewed in the light most favorable to the State, we
conclude that the State presented sufficient evidence for a rational juror to find Defendant
guilty of possessing cocaine and marijuana with the intent to sell or distribute the
controlled substances beyond a reasonable doubt. Defendant is not entitled to relief on
this ground.
Unlawful possession of a firearm
Defendant was also convicted of four counts of unlawful possession of a firearm
with the intent to go armed during the commission of or attempt to commit a dangerous
felony and one count of unlawful possession of a firearm after being convicted of a
felony involving the attempted use of force, violence, or a deadly weapon.
“It is an offense to possess a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony.” Tenn. Code Ann. § 39-17-
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1324(a) (2016). Dangerous felonies include “a felony involving the sale, manufacture,
distribution or possession with intent to sell, manufacture or distribute a controlled
substance.” Tenn. Code Ann. § 39-17-1324(i)(1)(L) (2016). “A person commits an
offense who unlawfully possesses a firearm, as defined in [section] 39-11-106, and[] . . .
[h]as been convicted of a felony involving the use or attempted use of force, violence, or
a deadly weapon[.]” Tenn. Code Ann. § 39-17-1307(b)(1)(A) (2016). “Crime of
violence” includes aggravated robbery. Tenn. Code Ann. § 39-17-1301(3) (2016).
We conclude that there was sufficient evidence for a rational juror to find
Defendant guilty of possessing a firearm during the commission of a dangerous felony,
i.e., the possession of more than one-half gram of cocaine and one-half ounce to ten
pounds of marijuana with the intent to sell or deliver, in counts five through eight. We
have previously concluded that the evidence was sufficient to support Defendant’s
convictions for possession of marijuana and cocaine with the intent to sell or deliver.
Sergeant Gilley observed Defendant exit the driver’s seat of the rental vehicle in the Mall
parking lot. Later, Sergeant Gilley found a Glock handgun with a laser sight under the
driver’s seat when he searched the rental vehicle. Additionally, Mr. Simpson testified
that Defendant purchased a laser sight at Gander Mountain in March. Mr. Simpson
recalled that he assisted Defendant by installing the laser sight onto a Glock handgun.
When viewed in the light most favorable for the state, this evidence is sufficient for a
rational juror to have found that Defendant possessed the Glock handgun that was found
in the rental vehicle.
Further, it was within the province of the jury to infer that Defendant possessed
the Glock firearm with the intent to go armed while he was selling or delivering
controlled substances. As we have set out above, the jury could have inferred that
Defendant was selling or had recently sold drugs based on the quantity of the cocaine and
marijuana found in the vehicle, the drug paraphernalia such as baggies and scales that
officers recovered from the vehicle, as well as Defendant’s report that another inmate
stole over $1,000 in cash from him while in the Madison County Jail. Additionally,
Sergeant Gilley testified that drug dealers frequently carry firearms when they engage in
the sale or delivery of controlled substances to protect themselves.
The evidence was also sufficient for a rational juror to find Defendant guilty of
possessing the Glock firearm while having been previously convicted of aggravated
robbery. Prior to trial, Defendant and the State stipulated that Defendant was convicted
of aggravated robbery in 2004. As we have previously stated, it was the jury’s
prerogative to infer that Defendant, as the driver of the vehicle, possessed the Glock
firearm that was found under the driver’s seat. Defendant is not entitled to relief on this
ground.
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Possession of drug paraphernalia
To convict Defendant of possession of drug paraphernalia, the State must have
established the following essential elements: “(1) that the defendant possessed an object;
(2) that the object possessed was classifiable as drug paraphernalia; and (3) that the
defendant intended to use that object for at least one of the illicit purposes enumerated in
the statute.” State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001) (citing Tenn. Code Ann. §
39-17-425(a)(1)). The “illicit purposes” outlined in section 39-17-425(a)(1) include the
following, in pertinent part: to “process, prepare, test, analyze, pack, repack, store,
contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a
controlled substance[.]” Tenn. Code Ann. § 39-17-425(a)(1) (2016). In Ross, the
supreme court determined that the evidence was sufficient for a rational juror to have
found that the defendant used “electronic scales and plastic sandwich bags” as drug
paraphernalia. Ross, 49 S.W.3d 846.
Similarly, we conclude that the evidence was sufficient for a rational juror to have
found Defendant guilty of possession of drug paraphernalia beyond a reasonable doubt
based on his possession of three sets of scales and plastic baggies in the rental vehicle.
Sergeant Gilley testified that individuals frequently use plastic bags and digital scales to
measure out and package controlled substances for illegal sale and distribution. We have
previously concluded that the evidence was sufficient for a rational juror to have found
Defendant guilty beyond a reasonable doubt of possession of marijuana and cocaine with
the intent to sell or deliver. Based on the evidence and Sergeant Gilley’s testimony, it
was within the province of the jury to infer that Defendant possessed the scales and
baggies for the purpose of measuring and bagging the controlled substances for the
purposes of selling or delivering the substances. Further, it was the jury’s prerogative as
the factfinder to discredit Mr. Burns’ testimony and to find that Defendant possessed the
scales and baggies. We will not overturn the jury’s factual findings on appeal. Bland,
958 S.W.2d 659. Defendant is not entitled to relief on this ground.
Evading arrest
“[I]t is unlawful for any person to intentionally conceal themselves or flee by any
means of locomotion from anyone the person knows to be a law enforcement officer if
the person[] . . . [k]nows the officer is attempting to arrest the person[.]” Tenn. Code
Ann. § 39-16-603(a)(1)(A) (2016). Investigator Cornelison testified that he and the other
officers were looking for Defendant to execute an arrest warrant from Texas. The
officers located Defendant at the Mall. As Defendant walked into the Mall, Investigator
Cornelison “walked in behind him attempting to catch up to him[.]” Defendant turned
around, observed that Investigator Cornelison was following him, and “he took off
running.” Investigator Cornelison yelled, “Stop. Stop. Police.” Additionally,
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Investigators Cornelison and Foster wore vests marked “police” when they attempted to
arrest Defendant on the active Texas warrants. This evidence is sufficient for a rational
juror to have found Defendant guilty of evading arrest beyond a reasonable doubt.
Defendant is not entitled to relief on this ground.
The State’s impeachment of Mr. Burns
Defendant also argues that the trial court erred in allowing the State to impeach
Mr. Burns’s credibility under Tennessee Rule of Evidence 608(b) by questioning him on
cross-examination about Mr. Burns’s pending criminal charges. He states that “[t]he
actions of the State in informing the jury of [Defendant]’s incarceration, questioning Mr.
Burns about murdering a TB1 agent during a drug transaction, and invoking prejudice
with the jury by mentioning the fact that the TBI agent had children eliminated any
chance [Defendant] had to receive a fair trial.” The State responds that “[t]he trial court
properly allowed the State to impeach Mr. Burns’s testimony by asking him about his
pending first-degree murder charge” and that, “[a]lternatively, any error that resulted
from the State’s questioning was harmless.”
During the State’s cross-examination of Mr. Burns, the State asked Mr. Burns if he
sold drugs and if he was good friends with Defendant. Mr. Burns responded
affirmatively to both questions. Mr. Burns also agreed that he had been previously
incarcerated with Defendant. Defense counsel objected when the State asked Mr. Burns
if he was incarcerated pending his trial for the first degree murder of a TBI agent. During
a jury-out hearing, the State argued that it could impeach Mr. Burns’s credibility because
the allegations of attempted aggravated robbery and first degree murder were specific
acts of conduct that were probative of Mr. Burns’s character for untruthfulness under
Tennessee Rule of Evidence 608(b). Defense counsel argued that the State could not
impeach Mr. Burns on pending charges. The State informed the trial court of its theory
that Mr. Burns testified that he owned the contraband in the rental vehicle because Mr.
Burns “face[d] little to no repercussions because of the nature of the charges he face[d].”
The trial court examined Rule 608 and noted that the objection related to the testimony of
a fact witness, not Defendant or a character witness. The trial court found that the State
had established a reasonable factual basis for the inquiry into Mr. Burns’s alleged specific
acts of conduct.7 The trial court also held that the State could cross-examine Mr. Burns
on “the ability of . . . Defendant and [Mr. Burns] to communicate on a regular basis
regarding the issue of [Mr. Burns]’s testimony.”
7
The State’s evidence of Mr. Burns’s alleged criminal acts was based on a video recording from
the TBI agent’s dash camera. The recording depicts Mr. Burns’s alleged attempted aggravated robbery
and murder of the TBI agent during a controlled drug buy.
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After the trial court viewed the State’s video evidence of Mr. Burns’s alleged
attempted aggravated robbery and first degree murder, the trial court stated the following:
The [c]ourt having again reviewed 608(b) and the criteria that must
be considered by the [c]ourt for purposes of allowing impeachment and
questioning regarding the prior bad acts, the [c]ourt finds that the cross-
examination will be proper under the circumstances that the alleged acts
that have been brought before the [c]ourt dealing with the attempted
aggravated robbery resulting in the death of an individual in this case
certainly have probative value of untruthfulness. They deal with dishonesty
and deceit when it comes to the attempted aggravated robbery. The
shooting was just a result of that as part of the factual circumstances that
occurred just in the chain of events. So I’ll allow cross-examination.
During a later exchange in the State’s cross-examination of Mr. Burns, the State
asked Mr. Burns why he was currently incarcerated. Mr. Burns responded “[f]or first
degree murder[,]” and the State asked, “And that’s the first degree murder of a TBI
special agent, isn’t it?” Mr. Burns agreed. The State then asked Mr. Burns if the murder
occurred while he attempted to sell drugs to the TBI agent. Defense counsel objected on
the ground that the State had previously asked Mr. Burns about his current incarceration,
and Mr. Burns had answered the question. The trial court ruled that the State could “ask,
and then move on.” Mr. Burns agreed that he attempted to sell drugs to the TBI agent
and then pulled his gun and attempted to rob the agent. The agent pulled out his gun and
Mr. Burns shot him.
Tennessee Rule of Evidence 608(b) provides the following:
(b) Specific Instances of Conduct. Specific instances of conduct of a
witness for the purpose of attacking or supporting the witness’s character
for truthfulness, other than convictions of crime as provided in Rule 609,
may not be proved by extrinsic evidence. They may, however, if probative
of truthfulness or untruthfulness and under the following conditions, be
inquired into on cross-examination of the witness concerning the witness’s
character for truthfulness or untruthfulness or concerning the character for
truthfulness or untruthfulness of another witness as to which the character
witness being cross-examined has testified. The conditions which must be
satisfied before allowing inquiry on cross-examination about such conduct
probative solely of truthfulness or untruthfulness are:
(1) The court upon request must hold a hearing outside the
jury’s presence and must determine that the alleged conduct has
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probative value and that a reasonable factual basis exists for the
inquiry;
(2) The conduct must have occurred no more than ten years
before commencement of the action or prosecution, but evidence of
a specific instance of conduct not qualifying under this paragraph (2)
is admissible if the proponent gives to the adverse party sufficient
advance notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such evidence and
the court determines in the interests of justice that the probative
value of that evidence, supported by specific facts and
circumstances, substantially outweighs its prejudicial effect[.]
Tenn. R. Evid. 608(b)(1)-(2).
During a jury-out hearing, the trial court found that the evidence of Mr. Burns’s
alleged attempted aggravated robbery and first degree murder charges was probative of
Mr. Burns’s character for truthfulness or untruthfulness. The trial court found that there
was a factual basis for the State’s impeachment of Mr. Burns’s character for truthfulness
based on the video recording of the controlled buy that led to Mr. Burns’s alleged
attempted aggravated robbery and first degree murder of an undercover TBI agent. Mr.
Burns’s alleged criminal conduct occurred on August 9, 2016, which was less than ten
years prior to the commencement of prosecution against Defendant on the current
offenses. The trial court properly focused on the probative value of Mr. Burns’s alleged
criminal conduct and how “the attempted aggravated robbery result[ed] in the death of an
individual”; the trial court noted that the attempted aggravated robbery involved
“dishonesty and deceit” and “[t]he shooting was just a result of that as part of the factual
circumstances that occurred just in the chain of events.” We also note that the trial court
was not required by the Tennessee Rules of Evidence to weigh the probative value of the
specific acts of conduct at issue with the prejudice to Defendant because the acts occurred
less than ten years prior to Defendant’s charges in this case. See Tenn. R. Evid.
608(b)(2).
We must also address Defendant’s argument that he was denied a fair trial because
the State implied that Defendant had previously been incarcerated on the current charges
by asking Mr. Burns if he had been housed in the same cell as Defendant. When
Defendant objected during the State’s cross-examination of Mr. Burns, the trial court
ruled that the State could ask Mr. Burns whether he had been housed with Defendant so
that the State could pursue its theory that Mr. Burns had access to Defendant’s discovery
materials and Defendant and Mr. Burns created Mr. Burns’s testimony and affidavit
while they were housed together. We note that, after the trial court’s ruling, Defendant
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did not object when the State asked Mr. Burns whether he was housed with Defendant or
when the State called Captain Wilson as a rebuttal witness to set out the exact dates that
Defendant and Mr. Burns were housed together at the Madison County Jail. To the
extent that Defendant is attempting to raise a separate claim that he was denied a fair
trial, we conclude that this claim is waived for failure to cite to any authority. See Tenn.
Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
court.”). In any event, this court has previously noted that the improper admission of
evidence that is cumulative to evidence already admitted is harmless error. See State v.
Elisa Cochran, No. 03C01-9708-CR-00353, 1998 WL 783343, at *7 (Tenn. Crim. App.
Nov. 3, 1998), perm. app. denied (Tenn. May 10, 1999). Thus, we conclude that the trial
court properly allowed the State to cross-examine Mr. Burns about the alleged attempted
aggravated robbery and first degree felony murder.
Excessive sentence
Lastly, Defendant argues that the trial court erred in ordering him to serve an
excessive sentence. He asserts that he should have received the minimum sentence for
each count and that the trial court should have ordered him to serve his sentences
concurrently. The State responds that the trial court properly exercised its discretion by
ordering Defendant to serve sentences above the statutory minimum and by ordering
partially consecutive sentence alignment.
When the record establishes that the trial court imposed a sentence within the
appropriate range that reflects a “proper application of the purposes and principles of our
Sentencing Act,” this court reviews the trial court’s sentencing decision under an abuse of
discretion standard with a presumption of reasonableness. State v. Bise, 380 S.W.3d 682,
707 (Tenn. 2012). A finding of abuse of discretion “‘reflects that the trial court’s logic
and reasoning was improper when viewed in light of the factual circumstances and
relevant legal principles involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553,
555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
In determining the proper sentence, the trial court must consider: (1) the evidence,
if any, received at the trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the criminal conduct involved; (5) evidence and information offered by
the parties on the mitigating and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and -114; (6) any statistical information provided by the
administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; and (7) any statement the defendant made in the defendant’s own behalf
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about sentencing. See Tenn. Code Ann. § 40-35-210(b)(1)-(7) (2017); State v. Taylor, 63
S.W.3d 400, 411 (Tenn. Crim. App. 2001).
To facilitate meaningful appellate review, the trial court must state on the record
the factors it considered and the reasons for imposing the sentence chosen. Tenn. Code
Ann. § 40-35-210(e) (2017); Bise, 380 S.W.3d at 706. However, “[m]ere inadequacy in
the articulation of the reasons for imposing a particular sentence . . . should not negate the
presumption [of reasonableness].” Bise, 380 S.W.3d at 705-06. The party challenging
the sentence on appeal bears the burden of establishing that the sentence was improper.
Tenn. Code Ann. § 40-35-401 (2017), Sentencing Comm’n Cmts.
Sentence Length
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of punishment is the
sentence that should be imposed, because the general assembly set the
minimum length of sentence for each felony class to reflect the relative
seriousness of each criminal offense in the felony classifications; and
(2) The sentence length within the range should be adjusted, as
appropriate, by the presence or absence of mitigating and enhancement
factors set out in §§ 40-35-113 and 40-35-114.
Tenn. Code Ann. § 40-35-210(c) (2017). The trial court must also consider the potential
or lack of potential for rehabilitation or treatment of the defendant in determining the
sentence alternative or length of a term to be imposed. Tenn. Code Ann. § 40-35-103(5)
(2017).
Although the trial court should also consider enhancement and mitigating factors,
such factors are advisory only. See Tenn. Code Ann. § 40-35-114 (2017); see also Bise,
380 S.W.3d at 698 n. 33, 704; State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). We
note that “a trial court’s weighing of various mitigating and enhancement factors [is] left
to the trial court’s sound discretion.” Carter, 254 S.W.3d at 345. In other words, “the
trial court is free to select any sentence within the applicable range so long as the length
of the sentence is ‘consistent with the purposes and principles of [the Sentencing Act].’”
Id. at 343. A trial court’s “misapplication of an enhancement or mitigating factor does
not invalidate the sentence imposed unless the trial court wholly departed from the 1989
Act, as amended in 2005.” Bise, 380 S.W.3d at 706. “[Appellate courts are] bound by a
trial court’s decision as to the length of the sentence imposed so long as it is imposed in a
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manner consistent with the purposes and principles set out in sections -102 and -103 of
the Sentencing Act.” Carter, 254 S.W.3d at 346.
Although our supreme court has not specifically held whether the Bise standard of
review applies to misdemeanor sentencing, it has held that “[t]he abuse of discretion
standard, accompanied by a presumption of reasonableness, is the appropriate standard of
appellate review for all sentencing decisions.” State v. Pollard, 432 S.W.3d 851, 864
(Tenn. 2013). Accordingly, we conclude that the Bise standard is the appropriate
standard of review in misdemeanor sentencing cases. See State v. Clifford Eric Marsh,
No. M2015-00803-CCA-R3-CD, 2016 WL 349928, at *3 (Tenn. Crim. App. Jan. 28,
2016), no perm. app. filed; see also State v. Sue Ann Christopher, No. E2012-01090-
CCA-R3-CD, 2013 WL 1088341, at *7 (Tenn. Crim. App. Mar. 14, 2013), perm. app.
denied (Tenn. June 18, 2013).
When sentencing a defendant for a misdemeanor conviction, the trial court may
conduct a separate sentencing hearing or “allow the parties a reasonable opportunity to be
heard on the question of the length of any sentence and the manner in which the sentence
is to be served.” Tenn. Code Ann. § 40-35-302(a) (2017). The trial court must impose a
sentence consistent with the purposes and principles of our sentencing act. Tenn. Code
Ann. § 40-35-302(b) (2017). “In imposing a misdemeanor sentence, the [trial] court shall
fix a percentage of the sentence that the defendant shall serve.” Tenn. Code Ann. § 40-
35-302(d) (2017). “In determining the percentage of the sentence to be served in actual
confinement, the [trial] court shall consider the purposes of this chapter, the principles of
sentencing and the enhancement and mitigating factors set forth in this chapter and shall
not impose such percentages arbitrarily.” Tenn. Code Ann. § 40-35-302(d) (2017). A
defendant convicted of a misdemeanor is not entitled to a presumption of a minimum
sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). The trial court
is not required to place its specific findings in ordering a misdemeanor sentence on the
record. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998). “Misdemeanor
sentencing is designed to provide the trial court with continuing jurisdiction and a great
deal of flexibility.” State v. Combs, 945 S.W.2d 770, 774 (Tenn. Crim. App. 1996).
Here, the trial court ordered in-range sentences for each of Defendant’s felony
convictions. Possession of one-half gram or more of cocaine with the intent to sell or
deliver is a Class B felony. Tenn. Code Ann. § 39-17-417(c)(1) (2016). A Range II
sentence for a Class B felony is twelve to twenty years, and Defendant received a
sentence of eighteen years each in counts one and two. Tenn. Code Ann. § 40-35-
112(b)(2) (2017). Possession of one-half ounce to ten pounds of marijuana with the
intent to sell or deliver is a Class E felony. Tenn. Code Ann. § 39-17-417(g)(1) (2016).
A Range II sentence for a Class E felony is two to four years, and Defendant received a
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sentence of four years each in counts three and four. Tenn. Code Ann. § 40-35-112(b)(5)
(2017).
Unlawful possession of a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony is a Class D felony, and the trial
court is required by statute to impose a minimum sentence of five years. Tenn. Code
Ann. § 39-17-1324(g)(2) (2016). A Range II sentence for a Class D felony is four to
eight years, and Defendant received a sentence of eight years each in counts five through
eight. Tenn. Code Ann. § 40-35-112(b)(4) (2017). Unlawful possession of a firearm
after being convicted of a felony involving the attempted use of force, violence, or a
deadly weapon is a Class C felony. Tenn. Code Ann. § 39-17-1307(b)(2) (2016). A
Range II sentence for a Class C felony is six to ten years, and Defendant received a
sentence of eight years in count nine. Tenn. Code Ann. § 40-35-112(b)(4) (2017).
Because the trial court ordered Defendant to serve within-range felony sentences, we
apply a presumption of reasonableness to the trial court’s sentencing decisions, and we
will not reverse absent an abuse of discretion.
Evading arrest is a Class A misdemeanor. Tenn. Code Ann. § 39-16-603(a)(1)(A)
(2016). Possession of drug paraphernalia is also a Class A misdemeanor. Tenn. Code
Ann. § 39-17-425(a)(2) (2016). Defendant received a sentence of eleven months and
twenty-nine days for each of his sentences in counts ten and eleven. We will also
presume that these misdemeanor sentences are reasonable and will not reverse the trial
court’s decision absent an abuse of discretion.
The trial court considered the factors required by section 40-35-210 and found that
several enhancement factors applied to Defendant’s convictions: (1) that Defendant
previous history of criminal convictions or criminal behavior, in addition to those needed
to establish Defendant’s sentencing range; (2) that Defendant possessed or employed a
firearm during the commission of the offense, which the trial court applied to counts one
through four; and (3) that Defendant was released on bond from his Texas charges during
the commission of the current offenses. See Tenn. Code Ann. § 40-35-114(1), (9),
(13)(A) (2017). The trial court also applied one mitigating factor—that Defendant’s
criminal conduct neither caused nor threatened serious bodily injury. See Tenn. Code
Ann. § 40-35-113(1) (2017).
Although Defendant argues that he should have received the minimum sentence
within each range, he does not present any specific argument that the trial court erred in
apply one or more of the enhancement factors. Regardless, we conclude that the
evidence presented at the sentencing hearing supports the trial court’s enhancement of
Defendant’s sentences based on section 40-35-114(1) and (9). However, the trial court
improperly relied on section 40-35-114(13)(A) because the State did not introduce
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evidence that Defendant was “ultimately convicted of the prior misdemeanor or
felony[,]” third degree felony assault strangulation or suffocation in Texas, as required by
the Sentencing Act. See Tenn. Code Ann. § 40-35-114(13)(A) (2017) (“At the time the
felony was committed, . . . [the defendant was] [r]eleased on bail or pretrial release, if the
defendant is ultimately convicted of the prior misdemeanor or felony[.]”). In any event,
the trial court’s reliance on enhancement or mitigating factors are advisory only, and the
trial court properly found that other enhancement factors applied to Defendant’s
convictions. The trial court did not abuse its discretion by enhancing Defendant’s
sentences within the appropriate statutory range. See Bise, 380 S.W.3d at 706.
Consecutive sentence alignment
In Pollard, the Tennessee Supreme Court expanded its holding in Bise to trial
courts’ decisions regarding consecutive sentencing. Pollard, 432 S.W.3d at 859.
Tennessee Code Annotated section 40-35-115 sets forth different criteria for the
imposition of consecutive sentencing, including the following:
(1) The defendant is a professional criminal who has knowingly
devoted the defendant’s life to criminal acts as a major source of livelihood;
(2) The defendant is an offender whose record of criminal activity is
extensive;
....
(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high[.]
Tenn. Code Ann. § 40-35-115(b)(1), (2), (4) (2017). Any one ground set out in the above
statute is “a sufficient basis for the imposition of consecutive sentences.” Pollard, 432
S.W.3d at 862 (citing State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). “So long as
a trial court properly articulates reasons for ordering consecutive sentences, thereby
providing a basis for meaningful appellate review, the sentences will be presumed
reasonable and, absent an abuse of discretion, upheld on appeal.” Id. (citing Tenn. R.
Crim. P. 32(c)(1)).
Section 40-35-115(b)(2) has been interpreted “to apply to offenders who have an
extensive history of criminal convictions and activities, not just to a consideration of the
offenses before the sentencing court.” State v. Palmer, 10 S.W.3d 638, 647-49 (Tenn.
Crim. App. 1999). Additionally, “an extensive record of criminal activity may include
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criminal behavior which does not result in a conviction.” State v. Koffman, 207 S.W.3d
309, 324 (Tenn. Crim. App. 2006).
Before a trial court may impose consecutive sentences on the basis that a
defendant is a dangerous offender, the trial court must also find “that an extended
sentence is necessary to protect the public against further criminal conduct by the
defendant and that the consecutive sentences . . . reasonably relate to the severity of the
offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995). In order to
limit the use of the “dangerous offender” category to cases where it is warranted, our
supreme court has stated that the trial court must make specific findings about “particular
facts” which show that the Wilkerson factors apply to the defendant. State v. Lane, 3
S.W.3d 456, 461 (Tenn. 1999).
Here, the trial court properly noted that, by statute, counts five through eight were
to be served consecutively to counts one through four. See Tenn. Code Ann. § 39-17-
1324(e)(1) (2017). Regarding count nine, the trial court determined that Defendant was
“a professional criminal who has knowingly devoted [his] life to criminal acts as a major
source of livelihood[,]” and ordered Defendant to serve count nine consecutively to count
five. The trial court based this finding on the current case as well as Defendant’s “whole
criminal history[.]” The trial court also found that Defendant was “an offender whose
record of criminal activity [wa]s extensive” and that Defendant was “a dangerous
offender whose behavior indicate[d] little or no regard for human life and no hesitation
about committing a crime in which the risk to human life [wa]s high[.]” The trial court
found that “[t]he circumstances surrounding the commission of the offense[s] [were]
aggravated” and that “the aggregate length of the sentence reasonably relate[d] to the
offense[s] of which . . . Defendant [was] convicted.”
We conclude that the trial court did not abuse its discretion by ordering Defendant
to serve his sentence for count nine consecutively to his sentence for count five. The
record supports the trial court’s finding that Defendant was a professional criminal.
Defendant’s current offenses include possession of cocaine and marijuana with the intent
to sell or deliver, and Sergeant Gilley estimated that the marijuana found in the rental
vehicle was worth $500 to $600 and that the cocaine was worth $1,000 to $3,000.
Additionally, Defendant reported to Ms. Hays that another inmate stole over $1,000 from
him, which the jury could have inferred were profits from recent drug sales.
Additionally, the presentence report reflected that Defendant had no verified
employment. Regarding Defendant’s extensive history of criminal behavior, Defendant
was wanted in Texas on a charge of third degree felony assault strangulation or
suffocation when he committed the eleven offenses at issue in this case. Additionally,
Defendant was previously convicted of aggravated assault, aggravated robbery, and
driving on a suspended license. Regarding the trial court’s application of the “dangerous
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offender” factor, the trial court made the findings required by Wilkerson, and the record
supports the trial court’s imposition of that factor. The trial court did not abuse its
discretion by ordering Defendant to serve his sentence in count nine consecutively to his
sentence in count five.
III. Conclusion
After a thorough review of the facts and applicable case law, we affirm the trial
court’s judgments.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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