State v. Joseph John Henry Morrell

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED February 25, 2000

DECEMB ER SESSION, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

STATE OF TENNESSEE, ) C.C.A. NO. E1999-00924-CCA-R3-CD )

Appellee, )

)

) SULLIVAN COUNTY

VS. )

) HON. PHYLLIS H. MILLER JOSEPH JOHN HENRY MORRELL,) JUDGE )

Appe llant. ) (Direct Appe al - Posses sion of a Weapon in a Penal Institution)

FOR THE APPELLANT: FOR THE APPELLEE:

GREGORY D. SMITH PAUL G. SUMMERS One Public Sq., Ste. 321 Attorney General and Reporter Clarksville, TN 37040 ELIZABETH B. MARNEY

Assistant Attorney General 425 Fifth Avenu e North

Nashville, TN 37243-0493

GREELEY W ELLS

District Attorney General

ROBERT H. MONTGOMERY

Assistant District Attorney P. O. Box 526

Blountville, TN 37617

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE

OPINION

On July 29, 1998, Joseph John Henry

Morre ll, the defen dant an d appe llant, was convicted by a Sullivan County Jury of possession of a wea pon in a p enal institutio n, and se ntence d as a R ange II offender to serve nine (9) years in the Tennessee Department of Corrections. He raises the follo wing is sues on ap peal.

1. Wh ether the evidenc e was s ufficient to supp ort the d efend ant’s conviction; and

2. Wh ether the trial court sente nced the de fendant correc tly.

After a thorough review of the record on appeal, we affirm the judgment of the trial court.

FACTUAL BACKGROUND

On the evening of December 13, 1997, the defendant was an inmate in the

Sullivan County Jail and was being kept alone in a cell that was known as “Tank II.”. That n ight at arou nd 11:4 0 p.m., O fficer Doo ley of the S ullivan Co unty Sher riff’s Department went to Tank II to prepare the defendant for a move to a different cell in order to make space for additional incoming inmates. When Officer Dooley entered the cell, he found a piece of metal lying on top of the commode unit. The piece of meta l looked ide ntical to piec es of m etal used to hold ceiling tiles in place in other pa rts of the jail, but these items were not used in Tank II. Officer Dooley then searched the defendant’s personal belongings, which were kept in a p lastic grocery bag , and found a nother similar piece of metal. The se cond p iece of m etal, which appea red to be identical to the metal outlet covers used in the jail, had been sharpened as if by filing. There were no outlet covers in Tank II. It is undisputed tha t the defendan t did not have permis sion to ha ve either p iece of m etal in his ce ll.

The defendant was charged with Possession of a Weapon in a Penal Institution and, following a July 29, 1998 trial, was found guilty of the charge. At

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the sentencing hearing on September 8, 1998, the state sought to introduce two prior conviction s in an effo rt to elevate th e defen dant’s se ntencing range. T he defendant argued that the two convictions were not made final until after he had committed the instant offense because, although he had pled guilty and been sentenced for the prior felonies, the judgment forms were not entered until almost one month after he possessed the weapon in jail. The trial judge rejected the argume nt and sente nced the de fendant as a Range II m ultiple offender.

SUFFICIENCY

The defendant claims that the state did not establish that the pieces of

metal were “weapons” within the meaning of the statute, and, alterna tively, that the proof did not support the inference that he possessed the pieces o f metal. When an appellant challenges the sufficiency of the e videnc e, this c ourt is obliged to review that challenge according to certain w ell-settled pr inciples. A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the Sta te's witnesse s and re solves all co nflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused is originally cloaked with a presumption of innocence, a jury ve rdict rem oves th is presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn . 1982). H ence, o n appe al, the burd en of pro of rests with Appella nt to demo nstrate the insufficienc y of the con victing evide nce. Id.

On appea l, the state is entitled to the strongest legitimate view of the evidence as we ll as all reasonable and legitimate inferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Where the sufficiency of the evidence is contested, the relevant question for the reviewing court is whether any rational trier of fact co uld have found the accused guilty of every element of the offen se beyo nd a rea sonab le doub t. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e). In conducting our evaluation of the convicting evidence, this Court is precluded from reweighing or

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reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996). Moreover, this Court may not substitute its own inferences "for those drawn by the trier of fa ct from circ umsta ntial eviden ce." State v. Matthews, 805 S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).

The defendant was convicted of section 39-16-201 of the Tennessee Code. Section 39-16-201 provides:

(a) It is unlawful for any person to:

(1) Knowingly and with unlawful intent take, send or otherwise cause to be take n into any penal ins titution where prisoners are q uartered or u nder custodial supervision any weapo ns, amm unition, explosives, intoxicants, legend drugs, or any controlled substances found in chapter 17, part 4 of this title.

(2) Knowingly p osse ss an y of the m aterials prohibited in subdivision (a)(1) while present in any penal institution where prisoners are quartered or under custodial supervision without the express written consent of the chief administrator of the institution.

(b) A violation of this section is a Class C felon y.

Tenn. Code Ann. § 3 9-16-20 1. In this case, we find amp le evidence to su pport the inference that at least the second piece of metal had been in the d efend ant's possession. Officer Dooley testified that whe n he we nt to the de fendan t’s cell to move him, the d efenda nt was a lone. The defen dant b ecam e visibly upset when Officer Doole y told the defendant that he would be changing cells. Furthermore, although the first piece of metal was found on the back of the commode unit, the second, sharper piece of metal was found in the defendant’s possessions which were wrappe d in a groc ery bag. Thus, we find that it is entirely reasonable for the jury to have concluded that the evidence discovered by Officer Dooley had been in the defen dant's po ssessio n. See State v. Holbrooks, 983 S.W.2d 697, 702 (Tenn. C rim. App. 199 8)

W e also find that the jury could have found the piece of metal to be a “weapon” within the meaning of the statute. There was evidence that the pieces of metal were taken from other parts of the jail and a ltered to make the m sharpe r. Indeed, we cannot imagine what purpose, other than as weapons, the pieces of

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metal could possibly have served. Although “weapon” is not specifically defined in the statute or elsewhere, a commonly accepted definition of “weapon” is “[a]n instrument of offensive or defen sive com bat . . . .” Black’s Law Dictionary 1593 (6 th ed. 1990). Furthermore, “weapon” is not a technical term which requires legal research to determine its meaning; in this context, its meaning can be ascertained by perso n of com mon in telligence . Cf. State v. Black, 745 S.W.2d 302, 30 4 (Ten n. Crim. A pp. 198 7). This issu e is withou t merit.

SENTENCING

The defen dant a lso con tends that the trial court erroneously se ntenc ed him

as a Range II multiple offender. Although prior to the commission of the instant offense the defen dant ha d pled gu ilty to two prior felonies and been sentenced for those crimes, the judgment forms in the prior cases were not entered until almost one month after the commission of the instant offense. Thus, argues the defend ant, the charges were not final, and w ere therefore not “convictions” at the time of the comm ission of the offense in this case .

Range II multiple offender status requires a minimum of two but not more than four prior felo ny convictions within the conviction class, a higher class, or within the next two lower felony classes. Tenn. Code Ann. § 40-35-106 (a)(1). The Tennessee Supreme Court determined that " 'prior conviction' means a conviction that has been adjudicated prior to the commission of the more recent offense for which sente nce is to be imp osed." State v. B louvett, 904 S.W.2d 111, 113 (Ten n. 1995)(em phasis add ed).

In this case, the prior convictions used to elevate the defen dant’s sentencing range had already b een adjudica ted before the defendant committed the instant offense, because he pled guilty to the prior offenses and was sentenced over one m onth be fore he c omm itted the insta nt offense . “Adjudication” is not synonymous with the entry of judgment. Indeed, although the defendant cites Rule 32(e) of the Tennessee Rules of Criminal Procedure as authority, the rule provides “[a] judgment of conviction shall set forth the plea, the verdict or findings, and the adjudication and se ntence .” Tenn . R. Crim . P.

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32(e)(emp hasis added). Thus, the rule itself makes clear that adjudication is distinct from , and prior to , the entry o f judgm ent. 1 Furthermore, the defendant’s reliance on State v. B louvett is misplaced.

In Blouvett , the convictions used to enhance the defendant's sentencing range were part of the same crime spree as the conviction for which the defendant was being senten ced. 904 S.W .2d at 112 . Both the enhancing convictions and the conviction for which the defendant was being sentenced were adjudicated on the same day. Id. Extending the Blouvett holding to apply in this case would thwart the legislative purpose of section 40-35-106, “a recidivist provision designed to punish persons who had been previously convicted and then commit new crimes.” Tenn. Code Ann. § 40-35-106, Sentencing Comm ission Comments. This issu e is withou t merit. Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE

CONCUR:

___________________________________

JOSEPH M. TIPTON, JUDGE

___________________________________

DAVID H. WELLES, JUDGE

1

This court has previously held, in an unpublished opinion, that “”[a] guilty or Alford plea does not constitute a conviction until the court enters a judgment upon it.” State v. Antoine L. Williams, No. 02- C-01-9210-CR -00237, 1993 W L 295060, at *1 (Tenn. Crim . App., Jackson, Aug. 4, 1993). How ever, the facts of that case are inapposite here. In that case, the defendant entered an Alford plea to burglary. The trial court stated an intention to grant judicial diversion to the defendant, but deferred the proceedings to await a sentencing report. During the interim, the defendant was indicted and entered an Alford plea for a d ifferent crim e. The court ultim ately senten ced the defend ant on bo th charge s, but, followin g a petition fo r a susp ended senten ce, gran ted the de fendan t judicial divers ion. The s tate appe aled, argu ing that the firs t Alford plea constituted a prior conviction and thus rendered the defe ndant ine ligible for pretrial dive rsion pur suant to s ection 40 -35-313 of the Te nness ee Co de. A panel of this court disagreed and affirmed the trial court, because the terms of section 40-35-313 specifically allow the sentencing court to accept a guilty plea and defer the entry of judgment until the defendant completes probation. Thus, this court reasoned that the section 40-35-313 did not contemplate a plea without a judgment to be a “conviction” which would bar future diversion. The statute in this case makes no such allowance.