State v. Kenneth Nesbitt

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 23, 1998
• Docket: 02C01-9801-CC-00029
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED SEPTEMBER 1998 SESSION October 23, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 02C01-9801-CC-00029 Appellee, ) ) CARROLL COUNTY VS. ) ) HON. C. CREED McGINLEY, KENNETH WAYNE NESBITT, ) JUDGE ) Appellant. ) (Sale of Cocaine)

FOR THE APPELLANT: FOR THE APPELLEE:

STEVEN L. WEST JOHN KNOX WALKUP 5 Broadway Attorney General and Reporter P.O. Box 400 McKenzie, TN 38201 DOUGLAS D. HIMES Assistant Attorney General Cordell Hull Building, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493

G. ROBERT RADFORD District Attorney General

ELEANOR CAHILL Assistant District Attorney General P.O. Box 686 Huntingdon, TN 38344

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

Defendant was found guilty by a Carroll County jury of two counts of selling

cocaine under 0.5 grams, Class C felonies. The trial court sentenced defendant to

Range II sentences of eight years on each count and ordered them served

concurrently. On appeal, the defendant contends that:

(1) the trial court erred in refusing to grant an acquittal due to insufficient evidence; and

(2) the state failed to establish the requisite chain of custody in order to properly admit the cocaine into evidence.

This Court finds no reversible error and affirms the trial court’s judgment.

FACTS

On January 7, 1997, undercover operative Sylvester Island made two

controlled drug buys involving target suspects other than defendant. Prior to

making each buy, Island met with officer Steve Lee at the airport. Lee searched

Island and his car, placed a “wire” on Island, and gave him “buy money.” Lee

monitored the transactions and, after each, would meet Island at the airport again

to receive and seal the drugs for analysis. Island was paid for making each buy.

In two separate transactions occurring on this date, Island gave the buy

money to the target; the target approached the driver of a white Nissan automobile;

and the money was given to the driver in exchange for a packet of cocaine. The

target then got into the Nissan, circled the block, and upon return delivered the

packet of cocaine to Island who subsequently delivered it to Lee.

Island testified that the packets he saw transferred from the driver of the

Nissan to the targets were the same packets he received and delivered to Lee.

Lee’s testimony established that the Nissan was registered to defendant. Lee and

Island both identified the defendant as the driver of the Nissan.

SUFFICIENCY OF THE EVIDENCE

2 When sufficiency of the evidence is challenged, the standard of review is

whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979); State v. Evans, 838 S.W.2d 185, 190-91 (Tenn. 1992); Tenn.

R. App. P. 13(e). On appeal, the state is entitled to the strongest legitimate view of

the evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court will

not reweigh the evidence, reevaluate the evidence, nor substitute its evidentiary

inferences for those reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn.

Crim. App. 1995). Furthermore, in a criminal trial, great weight is given to the result

reached by the jury. State v. Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App.

1995).

Defendant contends the state failed to meet its burden of proof by failing to

show any “transfer.” He emphasizes that the target suspects, to whom the drugs

were originally transferred, did not testify.

On appeal, the defendant claims that because he and the targets were left

alone for a period of time, out of sight and hearing of Island and Lee, “[a]ny rational

trier of fact should easily deduce that it would be extremely easy for these ‘target

suspects’ to have supplied the cocaine which was later turned over to Mr. Lee.”

According to the defendant, this necessarily raises a reasonable doubt as to the

supplier of the drugs, which no rational trier of fact could overcome in reaching its

verdict.

Viewing the evidence in the light most favorable to the prosecution and giving

proper weight to the result reached by the jury, we find sufficient evidence upon

which a rational trier of fact could find the defendant guilty of the charged offenses.

This issue is without merit.

CHAIN OF CUSTODY

3 Defendant challenges the chain of custody of the drugs. In order to admit

physical evidence, the party offering the evidence must “either introduce a witness

who is able to identify the evidence or must establish an unbroken chain of

custody.” State v. Holloman, 835 S.W.2d 42, 46 (Tenn. Crim. App. 1992)(emphasis

added). Whether the required chain of custody has been sufficiently established

to justify the admission of evidence is a matter committed to the sound discretion

of the trial court, and the court's determination will not be overturned in the absence

of a clearly mistaken exercise of that discretion. Id. The identity of tangible

evidence need not be proven beyond all possibility of doubt, and all possibility of

tampering need not be excluded. The circumstances must establish a reasonable

assurance of the identity of the evidence. State v. Kilburn, 782 S.W.2d 199, 203

(Tenn. Crim. App. 1989).

In assigning error, the defendant again points to the time period during which

the targets and defendant were outside Island and Lee’s direct observation and the

state’s failure to call the target suspects as witnesses. He argues that because of

these lapses, the state failed to establish the requisite chain of custody necessary

to admit the drugs into evidence. Defendant’s reliance on this principle is

misguided.

The state is required to introduce a witness who can identify the evidence to

be admitted. Island testified that the packets of drugs supplied to the target

suspects by defendant were the same packets given to him and that he

subsequently delivered them to Lee. Lee then transported the drugs to the crime

laboratory and picked the drugs up after analysis.

Having supplied the necessary witness, any questions as to the identity of the

drugs, the credibility of the witness’ testimony, and whether defendant sold the

cocaine which was delivered to Island, were within the purview of the jury to decide.

The fact that the targets and the suspect were out of sight for a period of time goes

to the weight and credibility, not the admissibility of the evidence.

4 CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed.

_________________________________ JOE G. RILEY, JUDGE

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID H. WELLES, JUDGE