IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY SESSION, 1999
FILED STATE OF TENNESSEE, ) March 29, 1999 ) No. 02C01-9803-CC-00089 Appellee ) Cecil Crowson, Jr. Appellate C ourt Clerk ) CARROLL COUNTY vs. ) ) Hon. C. Creed McGinley, Judge ALEXANDER BARTHOLOMEW ) CAWTHON, ) (Two Counts - Sale of Cocaine) ) Appellant )
For the Appellant: For the Appellee:
Vicki S. Snyder John Knox Walkup Asst. District Public Defender Attorney General and Reporter 117 North Forrest Avenue Camden, TN 38320 Marvin E. Clements, Jr. Assistant Attorney General Guy T. Wilkinson Criminal Justice Division District Public Defender 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
G. Robert Radford District Attorney General
Eleanor Cahill Asst. District Attorney General P. O. Box 686 Huntingdon, TN 38344
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Alexander Bartholomew Cawthon, was convicted by a jury in
the Carroll County Circuit Court of two counts of sale of cocaine, Class C felonies.
The trial court imposed a sentence of five years for each count to run concurrently
as a Range I standard offender. 1 The appellant’s sole issue on appeal is the
sufficiency of the convicting evidence.
BACKGROUND
From October of 1996 to January of 1997, the Drug Task Force for the 24th
Judicial District conducted an undercover operation in conjunction with the
Department of Housing and Urban Development (HUD) in Carroll County. Various
complaints and surveillance revealed the appellant’s involvement in illegal drug
activity. Testimony relative to the appellant’s first sale established that on
December 12, 1996, Steve Lee, the director of the Drug Task Force, equipped
Sylvester Island, the confidential informant, with a concealed body transmitter which
permitted conversations to be recorded. At the designated meeting place, Island
was searched by Lee and given $50 to purchase cocaine. Island was accompanied
by his girlfriend Jarhonda Parker. Because Ms. Parker was not a drug task force
agent, she was not searched. The appellant’s first sale occurred in McKenzie.
Lee followed Island and Parker into downtown McKenzie but remained at a
distance and was unable to view the transaction. The transaction was recorded by
Lee. Island had spoken with the appellant earlier that day and the appellant told
Island that he could give him a deal for $50. Keith Robinson, a friend of the
appellant, departed from a house on Garland Street and got into the car with Island.
1 The appellant’s five year sentence was ordered to be served consecutively to an outstanding eight year sentence for felony possession of cocaine.
2 Robinson returned to the house to page the appellant. Robinson got back into
Island’s vehicle and waited on the appellant. The appellant arrived in a white
vehicle driven by an unidentified white male. The appellant got into the vehicle with
Island, Robinson, and Parker while the white vehicle sped off. The appellant then
exchanged $50 for crack cocaine. Island dropped the appellant and Robinson off at
Robinson’s house. Shortly thereafter, Island delivered the cocaine and transmitter
to Lee. Forensic analysis determined the substance to be .2 grams of cocaine.
The second incident occurred on January 4, 1997, in Huntingdon. Again,
Island was searched and wired with a transmitter. Lee followed Island and Parker
into Huntingdon and just before they reached Island’s residence, a dark blue truck
pulled alongside Island’s vehicle. The appellant told Island “that he had some
crack.” Island responded, “meet me back at my apartment.” The appellant and two
other unidentified males were in the truck which was registered to Keith Garrett of
McKenzie. The blue truck and its occupants followed Island and Parker to their
residence. Upon entering the residence, Island gave the appellant $50 in exchange
for crack cocaine. The appellant, Island, and Parker were the only three individuals
in the residence. Island returned to meet with Lee and delivered the substance
purchased which was later determined to be .2 grams of cocaine.
Island testified that he had been an informant for nearly ten years and he was
paid $100 for each “buy.” Island had been acquainted with the appellant for one
month prior to these drug transactions. At trial, Island testified that he had
previously been convicted in Kentucky for forgery. Parker also testified reiterating
the events of the evening. She corroborated Island’s testimony and identified the
appellant as the person who sold the cocaine on both occasions to Island.
The appellant testified that Island had attempted to purchase cocaine from
him on several occasions. He denied knowing Parker and denied being present at
3 Island’s residence when the transaction occurred. The appellant stated that he
suspected that Island was working for the police. He denied that his voice was
contained on either of the taped transactions. The appellant stated that his
girlfriend, Nicole Robinson, tried to get him to sell drugs to Island. The appellant
admitted that he was unemployed during this period of time and that he kept a
beeper in his possession. He also admitted that he has sold cocaine before but
denied any participation in either of the two sales. In denying involvement in either
drug sale, the appellant testified on cross-examination that “I’m not going to sell
anyone cocaine who I don’t know.”
Based upon the above proof, the jury returned guilty verdicts for two counts of
the sale of cocaine and imposed a fine of $25,000 for each count.
II. SUFFICIENCY OF THE EVIDENCE
In the only issue, the appellant challenges the sufficiency of the convicting
evidence to sustain a verdict for two counts of the sale of cocaine. Specifically, the
appellant argues that the only people to identify him as the person selling cocaine
were Island, a paid informant and convicted felon, and Island’s girlfriend, Parker.
Moreover, he contends that Officer Lee’s failure to search Parker before each
transaction resulted in reasonable doubt as to the appellant’s guilt.
A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a
convicted defendant has the burden of demonstrating that the evidence is
insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the
sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable or
4 legitimate inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368 (1993). Viewing
the evidence under these criteria, it is this court’s responsibility to affirm the
conviction if the proof was sufficient for any rational trier of fact to have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON JANUARY SESSION, 1999
FILED STATE OF TENNESSEE, ) March 29, 1999 ) No. 02C01-9803-CC-00089 Appellee ) Cecil Crowson, Jr. Appellate C ourt Clerk ) CARROLL COUNTY vs. ) ) Hon. C. Creed McGinley, Judge ALEXANDER BARTHOLOMEW ) CAWTHON, ) (Two Counts - Sale of Cocaine) ) Appellant )
For the Appellant: For the Appellee:
Vicki S. Snyder John Knox Walkup Asst. District Public Defender Attorney General and Reporter 117 North Forrest Avenue Camden, TN 38320 Marvin E. Clements, Jr. Assistant Attorney General Guy T. Wilkinson Criminal Justice Division District Public Defender 425 Fifth Avenue North 2d Floor, Cordell Hull Building Nashville, TN 37243-0493
G. Robert Radford District Attorney General
Eleanor Cahill Asst. District Attorney General P. O. Box 686 Huntingdon, TN 38344
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Alexander Bartholomew Cawthon, was convicted by a jury in
the Carroll County Circuit Court of two counts of sale of cocaine, Class C felonies.
The trial court imposed a sentence of five years for each count to run concurrently
as a Range I standard offender. 1 The appellant’s sole issue on appeal is the
sufficiency of the convicting evidence.
BACKGROUND
From October of 1996 to January of 1997, the Drug Task Force for the 24th
Judicial District conducted an undercover operation in conjunction with the
Department of Housing and Urban Development (HUD) in Carroll County. Various
complaints and surveillance revealed the appellant’s involvement in illegal drug
activity. Testimony relative to the appellant’s first sale established that on
December 12, 1996, Steve Lee, the director of the Drug Task Force, equipped
Sylvester Island, the confidential informant, with a concealed body transmitter which
permitted conversations to be recorded. At the designated meeting place, Island
was searched by Lee and given $50 to purchase cocaine. Island was accompanied
by his girlfriend Jarhonda Parker. Because Ms. Parker was not a drug task force
agent, she was not searched. The appellant’s first sale occurred in McKenzie.
Lee followed Island and Parker into downtown McKenzie but remained at a
distance and was unable to view the transaction. The transaction was recorded by
Lee. Island had spoken with the appellant earlier that day and the appellant told
Island that he could give him a deal for $50. Keith Robinson, a friend of the
appellant, departed from a house on Garland Street and got into the car with Island.
1 The appellant’s five year sentence was ordered to be served consecutively to an outstanding eight year sentence for felony possession of cocaine.
2 Robinson returned to the house to page the appellant. Robinson got back into
Island’s vehicle and waited on the appellant. The appellant arrived in a white
vehicle driven by an unidentified white male. The appellant got into the vehicle with
Island, Robinson, and Parker while the white vehicle sped off. The appellant then
exchanged $50 for crack cocaine. Island dropped the appellant and Robinson off at
Robinson’s house. Shortly thereafter, Island delivered the cocaine and transmitter
to Lee. Forensic analysis determined the substance to be .2 grams of cocaine.
The second incident occurred on January 4, 1997, in Huntingdon. Again,
Island was searched and wired with a transmitter. Lee followed Island and Parker
into Huntingdon and just before they reached Island’s residence, a dark blue truck
pulled alongside Island’s vehicle. The appellant told Island “that he had some
crack.” Island responded, “meet me back at my apartment.” The appellant and two
other unidentified males were in the truck which was registered to Keith Garrett of
McKenzie. The blue truck and its occupants followed Island and Parker to their
residence. Upon entering the residence, Island gave the appellant $50 in exchange
for crack cocaine. The appellant, Island, and Parker were the only three individuals
in the residence. Island returned to meet with Lee and delivered the substance
purchased which was later determined to be .2 grams of cocaine.
Island testified that he had been an informant for nearly ten years and he was
paid $100 for each “buy.” Island had been acquainted with the appellant for one
month prior to these drug transactions. At trial, Island testified that he had
previously been convicted in Kentucky for forgery. Parker also testified reiterating
the events of the evening. She corroborated Island’s testimony and identified the
appellant as the person who sold the cocaine on both occasions to Island.
The appellant testified that Island had attempted to purchase cocaine from
him on several occasions. He denied knowing Parker and denied being present at
3 Island’s residence when the transaction occurred. The appellant stated that he
suspected that Island was working for the police. He denied that his voice was
contained on either of the taped transactions. The appellant stated that his
girlfriend, Nicole Robinson, tried to get him to sell drugs to Island. The appellant
admitted that he was unemployed during this period of time and that he kept a
beeper in his possession. He also admitted that he has sold cocaine before but
denied any participation in either of the two sales. In denying involvement in either
drug sale, the appellant testified on cross-examination that “I’m not going to sell
anyone cocaine who I don’t know.”
Based upon the above proof, the jury returned guilty verdicts for two counts of
the sale of cocaine and imposed a fine of $25,000 for each count.
II. SUFFICIENCY OF THE EVIDENCE
In the only issue, the appellant challenges the sufficiency of the convicting
evidence to sustain a verdict for two counts of the sale of cocaine. Specifically, the
appellant argues that the only people to identify him as the person selling cocaine
were Island, a paid informant and convicted felon, and Island’s girlfriend, Parker.
Moreover, he contends that Officer Lee’s failure to search Parker before each
transaction resulted in reasonable doubt as to the appellant’s guilt.
A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a
convicted defendant has the burden of demonstrating that the evidence is
insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the
sufficiency of the evidence, this court does not reweigh or reevaluate the evidence.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable or
4 legitimate inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d
54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S.Ct. 1368 (1993). Viewing
the evidence under these criteria, it is this court’s responsibility to affirm the
conviction if the proof was sufficient for any rational trier of fact to have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994), cert. denied, 513 U.S. 1086, 115 S.Ct. 743 (1995); Tenn. R. App.
P. 13(e). This rule is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence, or a combination of both direct and circumstantial evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
In essence, the appellant challenges the credibility of the State’s witnesses.
A jury verdict accredits the testimony of the State’s witnesses and resolves all
conflicts in favor of the State’s theory. State v. Williams, 657 S.W.2d 405, 410
(Tenn. 1983). The weight and credibility of witnesses’ testimony are exclusively
within the province of the jury as the trier of fact. State v. Locust, 914 S.W.2d 554,
558 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1995). We conclude that
the evidence was sufficient to support the appellant’s convictions for each sale of
cocaine. Officer Lee monitored the transactions via a transmitter and overheard
each drug transaction. Moreover, a recording of both transactions referring to the
person “Alex” was played for the jury. Additionally, Island and Parker identified the
appellant as the person who sold cocaine on both occasions. Accordingly, we find
the evidence presented sufficient proof from which a rational juror could reasonably
infer the appellant’s guilt beyond a reasonable doubt.
The judgment of the trial court is affirmed.
____________________________________
5 DAVID G. HAYES, Judge
CONCUR:
_____________________________________ JOE G. RILEY, Judge
_____________________________________ JOHN EVERETT W ILLIAMS, Judge