IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE SEPTEMBER SESSION, 1998 FILED October 12, 1998
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9711-CR-00508 Appellee ) ) GREENE COUNTY vs. ) ) Hon. JAMES E. BECKNER, Judge CARLOS LAMONT MARTIN, ) ) (Possession of Crack Cocaine) Appellant )
For the Appellant: For the Appellee:
D. Clifton Barnes John Knox Walkup Assistant District Public Defender Attorney General and Reporter Third Judicial District 1609 College Park Drive, Box 11 Michael J. Fahey, II Morristown, TN 37813 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Greg W. Eichelman 2d Floor, Cordell Hull Building District Public Defender Nashville, TN 37243-0493
C. Berkeley Bell, Jr. District Attorney General
Eric D. Christiansen Asst. District Attorney General 109 South Main Street Greeneville, TN 37743
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Carlos Lamont Martin, appeals as of right his conviction for
possession of a schedule II controlled substance, a class A misdemeanor.1
Following a jury trial, the Greene County Criminal Court sentenced the appellant to
eleven months and twenty-nine days with a release eligibility of seventy-five
percent.2 In this appeal, the appellant contends that the evidence is insufficient to
support his conviction and that the sentence imposed by the trial court is excessive.
After a review of the record, we affirm the judgment of conviction and
sentence entered by the trial court.
Background
Around 2:20 p.m. on December 7, 1996, Greeneville Police Officer Tim
Hartman was on patrol in an area of Greeneville known as “The Wall.” “The Wall” is
a concrete block wall or structure extending along Davis Street to Sumner Street,
and is an area where people routinely congregate. On this date, Officer Hartman
observed a group of about eight to fifteen men gathered near “The Wall.” One
person, whom Officer Hartman knew to be the appellant, made “a quick sudden
movement,” stepped away from the street, reached over to place something above
“The Wall” into the grass, and walked away from “The Wall.” No other person was
near the object.
1 The appellant was originally charged with felony possession of crack cocaine with the intent to sell, a c lass B fe lony.
2 This sentence was ordered to run consecutive to three outstanding convictions for forgery, failure to appear, and theft under $500, for an effective sentence of four years.
2 Officer Hartman noticed that the object was reflecting sunlight and thought
that the object might be something used to contain drug paraphernalia. He
proceeded to exit his patrol car and walked directly to the object, which he
recognized as a wadded ball of aluminum foil. Upon unfolding the aluminum foil,
Officer Hartman discovered what appeared to be crack cocaine packaged in the
cellophane wrapper from a pack of cigarettes. Hartman placed the contraband in
his pocket, walked straight to the appellant, who was standing near the patrol car,
and placed him under arrest for the possession of crack cocaine. A subsequent
search of the appellant revealed no drug paraphernalia or articles indicative of drug
trafficking on his person.
At trial, David Holloway, a forensic scientist with the Tennessee Bureau of
Investigation crime laboratory in Knoxville, confirmed that the contraband seized by
Officer Hartman contained one-half gram of cocaine base, a schedule II drug. The
appellant, in his own defense, denied having any contact with or possession of the
wadded ball of aluminum foil containing crack cocaine seized by Officer Hartman.
Based upon this evidence, the jury found the appellant guilty of simple
possession of crack cocaine.
I. Sufficiency of the Evidence
The appellant contends that the evidence is not sufficient to support a
conviction for simple possession of cocaine. In support of this issue, he argues that
“it was not proven beyond a reasonable doubt that the cocaine found on the wall
was sufficiently connected to the appellant for this conviction to stand.” Specifically,
he avers that “the officer’s testimony that he observed the actions of the appellant in
a crowd of eight to twelve people from 150 to 200 yards is an impossibility.”
3 When there is a challenge to the verdict based on the sufficiency of the
evidence, this court must review the evidence in the light most favorable to the
prosecution and determine whether “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, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994); Tenn. R. App. P. 13(e). We do not reweigh or reevaluate the
evidence; these are issues resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the testimony
of witnesses for the State and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, before an
appellate court may disturb a jury’s finding of guilt, the appellant must prove that the
evidence was insufficient to support the jury verdict in his case. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
Before the State may succeed in a prosecution for simple possession of
cocaine, the proof must show that the appellant was in possession of a controlled
substance. See Tenn. Code Ann. § 39-17-418(a) (1996 Supp.). There is no
dispute as to the nature of the contraband substance. The only issue is whether the
appellant was in possession of the controlled substance. Possession of a
controlled substance may be actual or constructive. State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). If a person is found to have the power and
intention at a given time to exercise dominion and control over the substance, he is
in constructive possession thereof. Id. at 129 (citations omitted). Although mere
presence in the area where the drugs are discovered is not enough to show
possession, State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996), the
proof shows that the appellant was more than merely present in the area where the
cocaine was found. Specifically, Officer Hartman observed the appellant place the
object containing the cocaine on the top of the wall. Obviously, by returning a guilty
verdict, the jury rejected the appellant’s denial of culpability and possession and
4 accredited the officer’s version of the events. It is not within the authority of this
court to reweigh or reevaluate the testimony of the witnesses. State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). The appellant has had his day in court and this
court will not and cannot substitute its judgment for that of the finder of fact and
arbiter of credibility. Cabbage, 571 S.W.2d at 835. Accordingly, we find the proof
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE SEPTEMBER SESSION, 1998 FILED October 12, 1998
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate C ourt Clerk ) No. 03C01-9711-CR-00508 Appellee ) ) GREENE COUNTY vs. ) ) Hon. JAMES E. BECKNER, Judge CARLOS LAMONT MARTIN, ) ) (Possession of Crack Cocaine) Appellant )
For the Appellant: For the Appellee:
D. Clifton Barnes John Knox Walkup Assistant District Public Defender Attorney General and Reporter Third Judicial District 1609 College Park Drive, Box 11 Michael J. Fahey, II Morristown, TN 37813 Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Greg W. Eichelman 2d Floor, Cordell Hull Building District Public Defender Nashville, TN 37243-0493
C. Berkeley Bell, Jr. District Attorney General
Eric D. Christiansen Asst. District Attorney General 109 South Main Street Greeneville, TN 37743
OPINION FILED:
AFFIRMED
David G. Hayes Judge OPINION
The appellant, Carlos Lamont Martin, appeals as of right his conviction for
possession of a schedule II controlled substance, a class A misdemeanor.1
Following a jury trial, the Greene County Criminal Court sentenced the appellant to
eleven months and twenty-nine days with a release eligibility of seventy-five
percent.2 In this appeal, the appellant contends that the evidence is insufficient to
support his conviction and that the sentence imposed by the trial court is excessive.
After a review of the record, we affirm the judgment of conviction and
sentence entered by the trial court.
Background
Around 2:20 p.m. on December 7, 1996, Greeneville Police Officer Tim
Hartman was on patrol in an area of Greeneville known as “The Wall.” “The Wall” is
a concrete block wall or structure extending along Davis Street to Sumner Street,
and is an area where people routinely congregate. On this date, Officer Hartman
observed a group of about eight to fifteen men gathered near “The Wall.” One
person, whom Officer Hartman knew to be the appellant, made “a quick sudden
movement,” stepped away from the street, reached over to place something above
“The Wall” into the grass, and walked away from “The Wall.” No other person was
near the object.
1 The appellant was originally charged with felony possession of crack cocaine with the intent to sell, a c lass B fe lony.
2 This sentence was ordered to run consecutive to three outstanding convictions for forgery, failure to appear, and theft under $500, for an effective sentence of four years.
2 Officer Hartman noticed that the object was reflecting sunlight and thought
that the object might be something used to contain drug paraphernalia. He
proceeded to exit his patrol car and walked directly to the object, which he
recognized as a wadded ball of aluminum foil. Upon unfolding the aluminum foil,
Officer Hartman discovered what appeared to be crack cocaine packaged in the
cellophane wrapper from a pack of cigarettes. Hartman placed the contraband in
his pocket, walked straight to the appellant, who was standing near the patrol car,
and placed him under arrest for the possession of crack cocaine. A subsequent
search of the appellant revealed no drug paraphernalia or articles indicative of drug
trafficking on his person.
At trial, David Holloway, a forensic scientist with the Tennessee Bureau of
Investigation crime laboratory in Knoxville, confirmed that the contraband seized by
Officer Hartman contained one-half gram of cocaine base, a schedule II drug. The
appellant, in his own defense, denied having any contact with or possession of the
wadded ball of aluminum foil containing crack cocaine seized by Officer Hartman.
Based upon this evidence, the jury found the appellant guilty of simple
possession of crack cocaine.
I. Sufficiency of the Evidence
The appellant contends that the evidence is not sufficient to support a
conviction for simple possession of cocaine. In support of this issue, he argues that
“it was not proven beyond a reasonable doubt that the cocaine found on the wall
was sufficiently connected to the appellant for this conviction to stand.” Specifically,
he avers that “the officer’s testimony that he observed the actions of the appellant in
a crowd of eight to twelve people from 150 to 200 yards is an impossibility.”
3 When there is a challenge to the verdict based on the sufficiency of the
evidence, this court must review the evidence in the light most favorable to the
prosecution and determine whether “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, 99 S.Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253,
259 (Tenn. 1994); Tenn. R. App. P. 13(e). We do not reweigh or reevaluate the
evidence; these are issues resolved by the trier of fact. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Furthermore, a guilty verdict accredits the testimony
of witnesses for the State and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Thus, before an
appellate court may disturb a jury’s finding of guilt, the appellant must prove that the
evidence was insufficient to support the jury verdict in his case. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
Before the State may succeed in a prosecution for simple possession of
cocaine, the proof must show that the appellant was in possession of a controlled
substance. See Tenn. Code Ann. § 39-17-418(a) (1996 Supp.). There is no
dispute as to the nature of the contraband substance. The only issue is whether the
appellant was in possession of the controlled substance. Possession of a
controlled substance may be actual or constructive. State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). If a person is found to have the power and
intention at a given time to exercise dominion and control over the substance, he is
in constructive possession thereof. Id. at 129 (citations omitted). Although mere
presence in the area where the drugs are discovered is not enough to show
possession, State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996), the
proof shows that the appellant was more than merely present in the area where the
cocaine was found. Specifically, Officer Hartman observed the appellant place the
object containing the cocaine on the top of the wall. Obviously, by returning a guilty
verdict, the jury rejected the appellant’s denial of culpability and possession and
4 accredited the officer’s version of the events. It is not within the authority of this
court to reweigh or reevaluate the testimony of the witnesses. State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). The appellant has had his day in court and this
court will not and cannot substitute its judgment for that of the finder of fact and
arbiter of credibility. Cabbage, 571 S.W.2d at 835. Accordingly, we find the proof
sufficient to establish that the appellant was in possession of crack cocaine. Tenn.
R. App. P. 13(e). This issue is without merit.
II. Sentencing
In his final issue, the appellant contends that the sentence imposed by the
trial court is excessive and contrary to the principles of sentencing. Specifically, he
contends (1) that the trial court committed error by considering the original charge of
possession with intent to sell, although the appellant was convicted of the lesser
offense of simple possession and (2) that the State’s argument that the sentence
must be enhanced due to its proximity to a school is misplaced. These arguments
are inaccurate. First, the record does not reflect that the trial court considered the
original charge of possession with intent to sell in reaching its sentencing
determination. Moreover, even though the State argued for enhancement based
upon the proximity to a school, the trial court explicitly rejected this argument. Thus,
we find no need to address these contentions of the appellant. Notwithstanding, the
appellant also asserts that the trial court failed to weigh enhancement and mitigating
factors properly.
The record indicates that the trial court considered relevant sentencing
principles, thus, this court conducts a de novo review coupled with a presumption
that the trial court’s sentencing determinations are correct. Tenn. Code Ann. § 40-
35-401(d) (1990); State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Although
otherwise entitled to the same considerations under the Sentencing Reform Act of
5 1989, unlike a felon, a misdemeanant is not entitled to the presumption of a
minimum sentence. See State v. Seaton, 914 S.W.2d 129, 133 (Tenn. Crim. App.
1995) (citation omitted). Moreover, the trial judge is granted a greater flexibility of
discretion in arriving at the appropriate sentence than in felony cases.
Even in light of the court’s discretion and the less stringent procedures
permitted in misdemeanor sentencing, a misdemeanor offender must be sentenced
to a determinant sentence, including a percentage of that sentence which the
offender must serve before becoming eligible for consideration of rehabilitative
programs. Tenn. Code Ann. 40-35-302(b), (d) (1990); see also State v. Palmer, 902
S.W.2d 391, 394 (Tenn. 1995). The appellant was convicted of a class A
misdemeanor. Thus, his sentence may not exceed 11 months and 29 days, Tenn.
Code Ann. § 40-35-111(e)(1) (1990), and he must be sentenced to a percentage of
not greater than seventy-five percent of that sentence. Palmer, 902 S.W.2d at 393-
394. In determining the percentage of the sentence, the court may consider
enhancement and mitigating factors as well as the legislative purposes and
principles related to sentencing. Tenn. Code Ann. § 40-35-302(d); Palmer, 902
S.W.2d at 393-94; State v. Gilboy, 857 S.W.2d 884, 889 (Tenn. Crim. App. 1993).
However, the statutory enhancement and mitigating factors do not have to be the
only factors considered by the trial court in determining the appropriate sentence.
The court should examine the misdemeanor offense in the light and character of the
circumstances of the offense as well as under the mandated sentencing principles.
State v. Brannon, No. 03C01-9508-CR-00233 (Tenn. Crim. App. at Knoxville, Apr. 3,
1996), perm. to appeal denied, (Tenn. Nov. 4, 1996) (citing Gilboy, 857 S.W.2d at
889).
In determining the appropriate sentence, the trial court, in the present case,
found three enhancement and no mitigating factors applicable. Specifically, the trial
court found that the appellant (1) has a previous history of criminal convictions,
6 Tenn. Code Ann. § 40-35-114(1) (1996 Supp.); (8) has a previous history of
unwillingness to comply with conditions of a sentence involving release into the
community, Tenn. Code Ann. 40-35-114(8); and that (13) the offense was
committed while on probation, Tenn. Code Ann. § 40-35-114(13)(c). The record
supports the trial court’s application of factors (1) and (8). The appellant has prior
convictions for forgery, failure to appear, theft under $500, DUI, and juvenile
adjudications. Additionally, he was on probation when the current offense was
committed, indicating his unwillingness to comply with conditions of release.
Although factor (13) applies only to a felony committed while on release for another
felony, consideration of the premise underlying this factor is appropriate in
misdemeanor sentencing when determining the appellant’s release percentage.
See Tenn. Code Ann. § 40-35-302(d).
The record supports the trial court’s findings regarding enhancement and
mitigating factors. We conclude that the appellant has not met his burden of
showing that service of his sentence at seventy-five percent is improper.
Sentencing Commission Comments, Tenn. Code Ann. § 40-35-401. Rather, the
record indicates that such a sentence is more than justified. This issue is also
without merit.
In consideration of the record before us and the applicable law, we find no
error of law requiring reversal. Accordingly, the judgment of conviction and
sentence imposed by the trial court is affirmed.
____________________________________ DAVID G. HAYES, Judge
7 CONCUR:
________________________________________ JOHN H. PEAY, Judge
________________________________________ JOSEPH M. TIPTON, Judge