IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 2000 SESSION FILED March 15, 2000
Cecil Crowson, Jr. STATE OF TENNESSEE, ) Appellate Court Clerk ) Appellee, ) No. W1999-00972-CCA-R3-CD ) ) Hardin County v. ) ) Honorable C. Creed McGinley, Judge ) PETER ALLEN ROSS, ) (Possession of over .5 grams of cocaine with ) intent to sell and possession of drug Appellant. ) paraphernalia)
For the Appellant: For the Appellee:
Guy T. Wilkinson Paul G. Summers District Public Defender Attorney General of Tennessee and and Richard W. DeBerry Clinton J. Morgan Assistant Public Defender Counsel for the State 117 North Forrest Avenue 425 Fifth Avenue North Camden, TN 38320 Nashville, TN 37243
G. Robert Radford District Attorney General Post Office Box 686 Huntingdon, TN 38344-0686 and John W. Overton, Jr. Assistant District Attorney General Post Office Box 484 Savannah, TN 38372-0484
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton Judge OPINION
The defendant, Peter Allen Ross, appeals as of right his convictions by a
jury in the Hardin County Circuit Court for possession of more than one-half gram of
cocaine with intent to sell, a Class B felony, and possession of drug paraphernalia, a
Class A misdemeanor. The trial court sentenced the defendant as a Range I, standard
offender to twelve years in the Department of Correction for the felony and a concurrent
eleven months and twenty-nine days for the misdemeanor. The court imposed a fifty-
thousand-dollar fine for the felony and a twenty-five-hundred-dollar fine for the
misdemeanor. The defendant contends: (1) that the evidence is insufficient to support
his convictions, (2) that the trial court should have suppressed the evidence obtained
during the warrantless search of his motel room, and (3) that his sentence is excessive.
We affirm the judgments of conviction.
Officer Victor Cherry of the Savannah City Police Department testified that
in August 1998, the police department received a report of stolen checks. He said that
on August 31, he and Officer Allen Snelling arrested Patricia Lishman at Wal-Mart for
attempting to pass one of the stolen checks. He said they took Ms. Lishman to Shaw’s
Comfort Motel, hoping to find the other stolen checks. He said that when asked which
room was hers, Ms. Lishman pointed to room 121. He said he and Officer Snelling
knocked on the door of 121, but no one answered. He said they decided to let Ms.
Lishman knock, but then someone opened the door. He said that four people were in
room 121 and that he could smell marijuana. He said he and Officer Snelling began
removing the occupants one at a time and having them empty their pockets onto a
metal chair outside the room. He said they found a small amount of marijuana in room
121 and more marijuana in a purse.
2 Officer Cherry testified that the defendant came out of the room and was
instructed to empty his pockets. He said one of the officers asked the defendant to
remove his shoes. He said Officer Johnny Murphy alerted him that the defendant had
something in his hand. He said that it was a key to room 132. He said that he asked
the defendant if he knew whose key it was and that the defendant replied that it was not
his key, but it belonged to Shafon Black, one of the four occupants of room 121. Officer
Cherry said Ms. Black said that it was not her key and that she did not know the
defendant that well. He said they arrested Ms. Black for possession of marijuana.
Officer Cherry testified that he thought the defendant might try to run
because the defendant kept trying to get between him and the wall. He said that he
and another officer walked the defendant toward the patrol car. He said the defendant
began throwing his arms up and jerking as if he were trying to escape. He said that
they had to force the defendant to the ground before putting him in the patrol car. He
said that Officer Murphy unlocked the door to room 132 and partially opened it but then
decided to wait for Officer Russ Alexander to arrive with the drug detection dog. He
said Officer Alexander searched room 132 with the dog. Officer Cherry said the
defendant was not arrested for possession of marijuana.
Officer Johnny Murphy of the Hardin County Sheriff’s Department testified
that on August 31, 1998, he went to Shaw’s Motel to aid some city officers. He said
that when he arrived, Officers Cherry and Snelling were bringing people out of a motel
room and searching them. He said he recognized the defendant. He said that a motel
key fell out of the defendant’s sock and that the defendant quickly picked it up and tried
to hide it. He said he took the key from the defendant who said it belonged to a girl
inside the motel room. He said the defendant denied that the key was his.
3 Officer Murphy testified that he unlocked the door to room 132 but then
stopped to wait for Officer Alexander to arrive with the drug detection dog. He said
Officer Alexander searched room 132 with the dog. He said he opened a night stand
drawer and found a large amount of crack cocaine. He said that they secured the
scene until the city’s drug investigator arrived and that they turned the case over to him.
Officer Russ Alexander of the Hardin County Sheriff’s Department
testified that after 2:00 a.m. on August 31, 1998, he and his drug detection dog, Duke,
were dispatched to Shaw’s Comfort Motel. He said that he asked a girl standing
outside room 121 if he could search that room and that the girl said he could search
anything she had. He said the dog found a small amount of marijuana in a clear
cellophane wrapper behind a dresser. He said that one of the subjects from room 121
claimed the marijuana, but he did not remember which one. He said that he next
searched room 132 and that the dog went straight to the night stand. He said the
drawer contained a large amount of what appeared to be crack cocaine. He stated that
it was the most crack cocaine that he had ever seen at one time.
Mike Moncher testified that on August 31, 1998, he was working on the
drug task force of the Savannah City Police Department. He said he was dispatched to
Shaw’s Comfort Motel, where officers told him they had found crack cocaine in room
132. He said he photographed two sandwich bags filled with a large amount of crack
cocaine, a set of digital scales, and a roll of plastic sandwich bags in room 132. He
testified that the scales measured both grams and ounces and were of the type
commonly used to weigh narcotics. He said sandwich bags are commonly used to
package crack cocaine for resale. He said he also found in room 132 a car title and a
receipt bearing the defendant’s name and the defendant’s billfold, which contained a
second car title bearing the defendant’s name.
4 Natu Batel testified that he owned Shaw’s Comfort Motel in August 1998.
He said room 132 was registered in the defendant’s name to a party of two from August
28 to August 31. He said he recalled the defendant paying in cash for the room each
day. He said he did not know who went in or out of room 132 during those four days.
He stated that room 121 was registered to Billy Ross.
Special Agent Kay Sherriff testified that she worked at the Tennessee
Bureau of Investigation Crime Laboratory as a forensic scientist specializing in drug
identification. She said she received a substance for analysis from Officer Mike
Moncher. She said she identified the substance as cocaine base, which is known on
the street as crack cocaine. She said the total weight of the substance was 53.5
grams.
Patricia Lishman testified that on the night of August 30 and the early
morning of August 31, she was arrested for forgery at Wal-Mart. She said that after the
officers learned that she was acting with another person, they took her to Shaw’s
Comfort Motel to look for evidence in her forgery case. She said she had been staying
in room 116 with her son and his girlfriend for three days. She said that without asking
her which room was hers, the officers knocked on room 121. She said that when no
one answered, they returned to the patrol car and asked her to knock on the door. She
said she knocked, a man answered, and the officers asked her if this was her room.
She said she told the officers that it was not her room, and they asked her if she knew
anyone in the room. She said she told them no, and they put her back in the patrol car.
Ms. Lishman testified that the officers started bringing people out of room
121 and searching them. She said they put a girl in the patrol car with her and a man in
another patrol car. She said she recognized the defendant when the officers brought
him out of the room. She said she saw the officers search the defendant and take
5 something from him. She testified that the defendant kept yelling, “Why are you doing
this to me?” She said that the defendant continued to yell as the officers took him to a
patrol car. She said that when she looked over again, the officers had the defendant on
the ground and then put him in the patrol car. She said the officers went to room 116
and talked with her son and his girlfriend before they took her and the others to jail.
I. SUFFICIENCY OF THE EVIDENCE
The defendant contends that the evidence is insufficient to sustain his
convictions because the motel owner testified that another person was a guest in room
132 and that he did not know who went in the room during the time it was registered to
the defendant. The state contends that the defendant has waived this issue because
he does not accompany this assertion with any further argument. See Tenn. Ct. Crim.
App. R. 10(b). Alternatively, the state contends that the evidence is sufficient.
Our standard of review when the sufficiency of the evidence is questioned
on appeal 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, 99 S. Ct.
2781, 2789 (1979). This means that we do not reweigh the evidence but presume that
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences
from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Initially, we note that we will treat issues unsupported by argument,
citation to authorities, or references to the record as waived. Tenn. Ct. Crim. App. R.
10(b). In his brief, the defendant provides citations for our standard of review of the
sufficiency of the evidence and cites to the relevant portions of the trial transcript for the
motel owner’s testimony. Although his argument on this issue is unduly brief, we
6 believe him to be challenging the sufficiency of the state’s proof identifying him as the
person to whom the cocaine belonged. In the light most favorable to the state, Officers
Cherry and Murphy testified that the defendant had the key to room 132 on his person
when they searched him on August 31. Mr. Batel, the motel owner, testified that the
room was registered to the defendant, who paid him in person, on August 28 through
August 31. Officer Murphy testified that he unlocked the door to room 132. Officers
discovered crack cocaine, digital scales and sandwich bags in a drawer of the night
stand in room 132. Officer Moncher testified that he found the defendant’s billfold and
a receipt and two car titles bearing the defendant’s name in room 132. This evidence is
sufficient to support the jury’s determination that the crack cocaine belonged to the
defendant.
II. SUPPRESSION OF THE EVIDENCE
The defendant contends that the trial court should have suppressed the
evidence from room 132 because the warrantless search of the room was illegal. He
argues that he rented room 132 and had an expectation of privacy in that room. He
claims that he did not consent to a search of his room nor did he abandon the room.
He argues that he told the officers that the marijuana in room 121, not the key to room
132, belonged to Shafon Black. He contends that at most, the state’s witnesses reveal
that he disclaimed an interest in the key to room 132, rather than the motel room itself.
The state contends that the trial court properly determined that the defendant had
disclaimed any interest in room 132.
At the suppression hearing, Officer Johnny Murphy testified that after the
defendant told the officers that the key to room 132 was not his and that it belonged to
the girl in room 121, Officer Murphy asked the girl if the officers could search her
property. He said the girl said that they could search anything she had. He said he
asked her if room 132 was her room and she said no. He said that he told her the
7 defendant said it was her room and that she responded, “Well, you can search anything
I’ve got. I don’t have anything on me.” He testified that the defendant never asserted
any claim to room 132 nor asked them not to search it. The rest of Officer Murphy’s
testimony and the testimony of Officer Cherry, Officer Alexander, and Patricia Lishman
was substantially similar to their testimony at trial.
The defendant testified that on August 31, he was visiting in room 121
when the police came. He said that at Officer Cherry’s request, he emptied his
belongings onto a chair. He said he removed a key from his sock without being asked.
He said that Officer Cherry told him to pick up his things and that as he was doing this,
Officer Murphy told the other officers that he appeared nervous. He said Officer
Murphy asked him what was wrong. He said he replied that nothing was wrong except
that the police were harassing him in front of the others when they had no cause to
search him. He said the officers then told him to throw down the key and the rest of his
things. He said that he objected to the officers taking his belongings and that he kept
getting louder and angrier. He said one thing led to another, and the police pinned him
to the ground. He said he never denied that the key was his, and the officers never
asked him whether the key or the room were his. He stated that it seemed like the
officers “already had it in for” him.
The defendant testified that he had rented room 132 and expected privacy
in that room. He said the people in room 121 were smoking marijuana. He said that
the officers did not ask him who had the marijuana but that he told them that it
belonged to the girl.
The trial court denied the defendant’s motion to suppress, finding that
Officer Cherry properly searched the occupants of room 121 because he smelled
marijuana, thereby realizing that the occupants of room 121 were committing a
8 misdemeanor in his presence. It found that the defendant disclaimed any interest in the
key to room 132 and asserted that it belonged to Ms. Black. It noted that although Ms.
Black said that room 132 was not her room, she told the officers they could search
anything that she had. It found that the officers did not know that room 132 was
registered to the defendant until after they discovered drugs in room 132. It found that
the defendant could not disclaim ownership in room 132 and positively assert that
someone else had ownership, then later claim an expectation of privacy in the room
and the resulting constitutional rights.
Our supreme court has held:
It is the general law of this State that when one disclaims interest in the premises or possessions searched or in the articles seized he cannot question the legality of the search and seizure and it necessarily follows there can be no valid objection to evidence obtained by such search.
Bowman v. State, 362 S.W.2d 255, 257 (Tenn. 1962) (citations omitted); see also
Kelley v. State, 566 S.W.2d 858, 859 (Tenn. 1978); Miller v. State, 520 S.W.2d 729,
734 (Tenn. 1975). In the present case, the trial court found that the defendant denied
the key to room 132 was his and told the officers that it belonged to Ms. Black. W e will
uphold the trial court’s factual findings at the suppression hearing unless the evidence
preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
Officers Cherry and Murphy testified that the defendant denied the key was his and said
it belonged to Ms. Black. Officer Murphy said the defendant never told them that room
132 was his room nor asked the officers not to search it. The evidence does not
preponderate against the trial court’s finding. The defendant disclaimed any interest in
the room and, therefore, cannot later claim a legitimate expectation of privacy therein.
The defendant argues that at most, he only disclaimed the key to room 132, not the
room itself. We do not believe his distinction is reasonable under the facts. By
disclaiming the key, the defendant disclaimed his connection to the room. We hold that
9 the trial court properly denied the defendant’s motion to suppress the evidence
obtained from room 132.
III. SENTENCING
The defendant contends that his sentence is excessive. He argues that
the trial court should have considered that his conduct neither caused nor threatened
serious bodily injury. See Tenn. Code Ann. 40-35-113(1). The state contends that the
trial court properly rejected this factor because it does not apply to cocaine offenses.
Appellate review of sentencing is de novo on the record with a presumption that the trial
court's determinations are correct. Tenn. Code Ann. §§ 40-35-401(d), -402(d). As the
Sentencing Commission Comments to these sections note, the burden is now on the
appealing party to show that the sentencing is improper. This means that if the trial
court followed the statutory sentencing procedure, made findings of fact that are
adequately supported in the record, and gave due consideration and proper weight to
the factors and principles that are relevant to sentencing under the 1989 Sentencing
Act, we may not disturb the sentence even if a different result were preferred. State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).
However, "the presumption of correctness which accompanies the trial
court's action is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances."
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). In this respect, for the purpose of
meaningful appellate review,
the trial court must place on the record its reasons for arriving at the final sentencing decision, identify the mitigating and enhancement factors found, state the specific facts supporting each enhancement factor found, and articulate how the mitigating and enhancement factors have been evaluated and balanced in determining the sentence. T.C.A. § 40-35-210(f) (1990).
State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994).
10 Also, in conducting a de novo review, we must consider (1) the evidence,
if any, received at the trial and 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, (5) any mitigating or statutory enhancement
factors, (6) any statement that the defendant made on his own behalf, and (7) the
potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-102, -103, -210; see
Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229 (Tenn. 1986).
The sentence to be imposed by the trial court for possession of cocaine
with the intent to sell, a Class B felony, is presumptively the minimum sentence in the
range when no enhancement or mitigating factors are present. See Tenn. Code Ann. §
40-35-210(c). Procedurally, the trial court is to increase the sentence within the range
based upon the existence of enhancement factors and then reduce the sentence as
appropriate for any mitigating factors. Tenn. Code Ann. § 40-35-210(d), (e). The
weight to be afforded an existing factor is left to the trial court's discretion so long as it
complies with the purposes and principles of the 1989 Sentencing Act, and its findings
are adequately supported by the record. Tenn. Code Ann. § 40-35-210, Sentencing
Commission Comments; Moss, 727 S.W.2d at 237; see Ashby, 823 S.W.2d at 169.
The presentence report reflects that the then twenty-four-year-old
defendant is a high school graduate and has received some training in carpentry.
Although the defendant declined to give any information for the report, a prior
presentence report stated that he had worked at the Sears Warehouse and fast food
restaurants. The prior report stated that the defendant reported initially using drugs at
age seventeen with occasional use thereafter. The presentence report reveals an
extensive prior criminal record including an October 1998 conviction for driving on a
suspended license; February 1998 convictions for driving with a revoked license, a
weapons offense, possession of narcotics equipment, and evading arrest; a September
11 1997 conviction for contributing to the delinquency of a minor; a December 1996
conviction for a traffic offense; October 1995 convictions for theft of property valued
between one thousand and ten thousand dollars and aggravated burglary; and October
1994 convictions for criminal trespassing, evading arrest, and a weapons offense. The
defendant received concurrent three-year sentences as a Range I, standard offender
for the theft and aggravated burglary convictions. He was released on parole in July
1996, and his parole was revoked in January 1997, when he incurred new charges.
The defendant’s juvenile record begins at age eleven and includes grand larceny, theft,
auto theft, concealing stolen property, possession of marijuana, and public intoxication.
The trial court applied the following enhancement factors from Tenn.
Code Ann. § 40-35-114:
(1) The defendant has a previous history of criminal convictions or criminal behavior in addition to those necessary to establish the appropriate range;
....
(8) The defendant has a previous history of unwillingness to comply with the conditions of a sentence involving release into the community; [and]
(20) The defendant was adjudicated to have committed a delinquent act or acts as a juvenile that would constitute a felony if committed by an adult[.]
The trial court rejected mitigating factor (1), that the defendant’s conduct neither caused
nor threatened serious bodily injury, noting that crack cocaine “is an inherently addictive
and dangerous substance that [the defendant] had in his possession in a very
significant quantity.” See Tenn. Code Ann. § 40-35-113(1). Given the three
enhancement factors and the lack of mitigation, the trial court imposed the maximum
sentence of twelve years for the felony conviction.
12 The trial court’s findings justify its rejection of Tenn. Code Ann. § 40-35-
113(1). Although mitigating factor (1) applies unless the threat of serious bodily injury
exists, the trial court emphasized the large quantity of cocaine possessed by the
defendant and the particularly addictive nature of crack cocaine. Thus, the record
supports the sentence imposed by the trial court.
Based upon the foregoing and the record as a whole, we affirm the
judgments of conviction.
Joseph M. Tipton, Judge
CONCUR:
_______________________________ David H. Welles, Judge
_______________________________ L. Terry Lafferty, Senior Judge