IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE June 16, 1999
Cecil Crowson, Jr. APRIL SESSION, 1998 Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9706-CR-00222 ) Appellee, ) ) ) GREENE COUNTY VS. ) ) HON. JAMES E. BECKNER REGINALD ALLAN GILLESPIE, ) JUDGE ) Appe llant. ) (Direct Appeal - Possession with ) Intent to Sell Controlled Substance)
FOR THE APPELLANT: FOR THE APPELLEE:
GREG W. EICHELMAN JOHN KNOX WALKUP Office of the Public Defender Attorney General and Reporter 1609 College Park Drive, Box 11 Morristown, TN 37813-1618 SANDY C. PATRICK Assistant Attorney General 425 Fifth Avenu e North Nashville, TN. 37243-0943
C. BERKELEY BELL District Attorney General
ERIC D. CHRISTIANSEN Assistant District Attorney 109 South Main Street Greeneville, TN. 37743
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
The appellan t, Reginald Allan Gillespie, was convicted by a Greene County
jury of one (1 ) count o f posses sion of with the intent to sell more than 0.5 grams
of cocaine, a Class B felony, one (1) count of simple possession of marijua na, a
Class A misdemeanor, and one (1) count of unlawful possession of a weapon,
a Class E felon y. He was sentenced as a Range I, standard offender to ten (10)
years for possession of cocaine with the intent to sell, one (1) year for unlawful
possession of a weapon and eleven (11) m onths and tw enty-nine (29) da ys for
posse ssion of m arijuana. O n appe al, Appe llant raises th ree issue s:
1) whether the trial court pro perly den ied App ellant’s m otion to suppress the evidence seized in the search of Appellant’s person;
2) whether there was sufficient eviden ce at tria l to sup port the jury’s verdict; and
3) whether the trial court erred in imposing his sentences.
After a review of the reco rd before th is Court, we affirm the judgment of the trial
court.
FACTS
On August 14, 1996, Officer Tim Hartman of the Greeneville Police
Department was patrolling D avis Street in Gree neville when he observed the
appellant and tw o othe r men stand ing along the “W all.”1 Officer Hartman was
traveling at a low rate of speed and the win dows were d own o n his police cruiser.
Upon his detection of the od or of bu rning m arijuan a, the o fficer sto pped his car,
1 At the hearing on the motion to suppress, the “Wall” was described as a high crime area along Davis S treet.
-2- requested back up and exited his vehicle. As he approached the three men, he
saw smoke lingering about them. Officer Hartman asked the men where the
marijuana was located, but did not receive a response.
Officer Hartm an instruc ted the men to turn a round and fa ce the wall,
spread their legs and put their hand s on the w all. He conducted a patdown
search of the appellant, and as he did so, he felt a large lump in the a ppella nt’s
right and left fron t pants po cket. Because the officer recognized the “lump” in the
appe llant’s left front pocket as being a “plastic bag of material,” he pulled out the
conten ts of the pocket. This search produced a lighter, $103 in cash, and a
plastic bag containing thirty rocks of crack cocaine. The officer further discovered
another plastic bag w hich con tained on e rock of c rack coc aine in the vicinity
where the appellant had been standing. Following the search, Officer Hartman
arrested the app ellant.
Subseq uently, another officer arrived on the scene, and he conducted a
second search of the appellant’s person. His search of the appellant produced
a gun, a loaded clip, and 3 .6 gram s of mar ijuana.
The jury found the appellant guilty of possession with intent to sell more
than 0.5 grams of cocaine, simple possession of marijuana, and unlawful
possession of a deadly weapon. The trial court sentenced him to concurrent
terms of ten (10) years for posse ssion with the intent to sell, eleven (11) months
and twenty-nine (29) days for simple possession and one (1) year for unlawful
possession of a weapon. From his convictions and sentences, the appellant now
brings this appea l as of right.
-3- MOTION TO SUPPRESS
The appellant contends that the trial court erred in den ying his m otion to
suppress the evidence seized as a result of the officers’ search of his person. He
argues that the initial patdown search conducted by Officer Hartman was
unrea sona ble as it was not sup ported by reas onable sus picion or probable
cause.
A.
At the suppression hearing, Officer Hartman testified that he was patrolling
in a high crime area on Davis Street when he noticed the appellant and two other
men standing alon g the “W all.” His car windows were rolled down, and he
detected the scent of burning marijuana. Officer Hartman was familiar with the
odor of burning marijuana as a result of his training as a police officer. As the
officer exited his vehicle and approached the men, he observed smoke lingering
about them . In add ition, he recog nized the stro ng od or of bu rning m arijuana.
At this point, the officer conducted a patdown search of the appellant2 and felt a
large lump in both of the appellant’s front pants pockets. The officer then
emptied the contents of the appellant’s left front pants pocket and discovered a
lighter, $103 in cash and a plastic bag which contained crack cocaine. The
appellant was arrested, and another search of the appellant’s person produced
a hand gun an d two ba gs con taining m arijuana.
In denying the mo tion to sup press, the trial court found that the patdown
search of the appellant was supported by reasonable suspicion. The court noted
that, upon the officer detecting the smell of burning marijua na, it was lo gical to
2 The officer conducted a patdown search of all three (3) men, but apparently began with the appellant as he was “the closest” to Officer Hartman at the time. Neither of the other men were charged with a criminal offense as a result of the officer’s patdown search.
-4- conclude that someone in the group of three was smoking marijuana, given the
fact that there was no one else pre sent. The co urt further stated that the officer
“may very well have” had probable cause to search the appellant and his
companions. The trial court recognized the easily disposable nature of the drugs
and concluded tha t there were exige nt circumstan ces which jus tified the more
intrusive search of the app ellant’s per son. As a result, the trial court concluded
that the se arch of the appellan t’s person was co nstitutiona lly permiss ible.
B.
In reviewing a trial court’s denial of a motion to suppres s, this C ourt is
bound by the trial court’s findings of fact unless the evidence preponderates
otherwise. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). However, the
law as applied to those facts is subject to de novo review. Id. The appellant
bears the burden of demonstrating that the evidence preponderates against the
trial court’s find ings. State v. Odom, 928 S.W .2d 18, 22-23 (Tenn. 199 6).
C.
The Constitution of the State of Tennessee guarantees that “the peop le
shall be secure in the ir persons, houses, papers and possessions, from
unrea sona ble searches a nd seizure s. . . .” Tenn. C onst. art. I, § 7. T he Fou rth
Amendment to the United States Constitution provides the same guarantee. Any
search conducted without a warr ant is presum ed illegal. State v. Crabtree, 655
S.W.2d 173, 17 9 (Ten n. Crim. A pp. 198 3). The sta te has the burden of showing
that a warrantless search was conducted within a recognized exception to the
warrant requirem ent. State v. McClanahan, 806 S.W .2d 219, 220 (Tenn. Crim.
App. 1991). One such recognized exception is a search supported by proba ble
cause and co nducte d unde r exigent circ umsta nces. State v. Shrum, 643 S.W.2d
891, 893 (T enn. 19 82); State v. Blake ly, 677 S.W.2d 12, 16 (Tenn. Crim. App.
-5- 1983). “Probable cause has been defined as a reasonable ground for suspicion,
supported by circumstances indicative of an illegal act.” State v. Henning, 975
S.W .2d 290, 294 (Tenn. 199 8).
D.
Although the trial c ourt co nclud ed tha t Office r Hartm an ha d reas onab le
suspicion which would warrant an investigatory detention, the c ourt
acknowledged that the officer “may very well have” had probable cause when he
detected the scen t of burning marijua na. We agree. The appellant and two other
men were standing alone in a high crime area. The officer, as he was driving
slowly past the men, noticed the odor of burning marijuana. He stopped his c ar,
exited his vehicle and approached the men. Smoke was lingering about the men,
and the officer noticed a strong sm ell of m arijuan a. Cer tainly, the officer’s
detection of the strong odor of marijuana and his observation of smoke around
the three m en ga ve the o fficer a “r easo nable ground for suspicion, supported by
circumstances indicative of an illegal act.” State v. Henning, 975 S.W.2d at 294.
Thus, we conclude that Officer Hartman had probable cause to believe that the
men w ere com mitting an illegal act.
Moreover, Officer Hartman was confronted with the possibility that the
appellant might flee from his presence. Additionally, as observed by the trial
court, the app ellant had the ability to dispose of the drugs, even in the presence
of the officers. In our view, to have failed to search under such circumstances
would have meant risking loss of the contraband. See State v. Shrum, 643
S.W.2d at 893. Thus, we conclude tha t there were exigent circumstances which
justified the warrantless search of the appellant’s person.
-6- Because Officer Hartman’s search was supported by probable cause and
was conducted under exigent circumstances, we conclude that the trial court
prope rly denied the appellant’s motion to suppress. This issue is without m erit.
SUFFICIENCY OF THE EVIDENCE
In his first issue, the appellan t contend s that the e vidence is insufficient to
support his convic tion for p osse ssion with the intent to sell. Appellant complains
there was no ac tual sale or any d irect evidence of a sa le submitted to the jury.
He further asserts that the state’s reliance o n the presen ce of cash, a b eeper,
and the am ount o f coca ine wa s insuf ficient to prove that the coca ine fou nd on his
person was possessed for the purpose of resale.
When an accused challenges the sufficiency of the evidence, this Co urt
must review the record to determine if the evidence adduced during the trial was
sufficient “to supp ort the fin dings by the tr ier of fac t of guilt beyon d a rea sona ble
doubt.” Tenn . R. App . P. 13(e). T his rule is app licable to findin gs of g uilt
predicated upon direct e videnc e, circu msta ntial evidence or a combination of
direct and circu mstan tial evidenc e. State v. Brewer, 932 S.W.2d 1, 19 (Tenn.
Crim. App . 1996).
It is well-settled that a criminal offense may be established exclusively by
circumstantial evidenc e. State v. Lequire , 634 S.W .2d 608, 614 (Tenn. Crim.
App. 1981); State v. Hailey, 658 S.W .2d 547, 552 (Tenn. Crim . App. 1983 ).
Further, to support a conviction based upon circumstantial evidence alone, the
facts and circumstances “must be so strong and cogent as to exclude every other
-7- reasonable hypothesis save the guilt of the defen dant.” State v. Crawfo rd, 225
Tenn. 47 8, 470 S.W .2d 610, 612 (1971).
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). Nor m ay this C ourt su bstitute its inferences for those drawn by the trier
of fact from c ircums tantial evide nce. Liakas v. State , 199 Tenn. 298, 305, 286
S.W.2d 856, 859 (1956). To the contrary, this Court is required to afford the state
the strongest legitimate view of the evidence contained in the record as well as
all reasonable and legitimate inferences which may be drawn from the evidence.
State v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). “A guilty verdict
by the jury, approved by the trial judge, accredits the testimony of the witnesses
for the State and resolves all conflicts in favor of the theory of the State.” State
v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Questions concerning the
credibility of the witnesses, the weight and value to be g iven the eviden ce as well
as all factu al issues raised by the evidence are resolved by the jury as the trier
of fact. State v. Tuttle , 914 S.W.2d at 932.
Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burd en in this Court
of illustrating why the evidence is insufficient to support the verdict returned by
the trier of fact. State v. Tug gle, 639 S.W.2 d 913, 9 14 (Te nn. 198 2); State v.
Grace, 493 S.W.2d at 476.
To convict the appellant for the crime of possession of a controlled
substance with the intent to sell, the state was required to prove that the
appellant “possessed a controlled substan ce with inte nt to manufacture, deliver
or sell such c ontrolled s ubstan ce.” Tenn. Co de Ann. § 3 9-17-417 (a )(4). Tenn.
-8- Code Ann. § 39-17-419 provides, in pertinent part, “[i]t may be inferred from the
amount of a controlled substance or substances possessed by an offender, along
with other relevant facts surrounding the arrest, that the controlled substance or
substances were possessed with the purpose of selling or oth erwise d ispensin g.”
In the present case, Officer Hartman found thirty (30) rocks of cocaine on
the appellant’s person. In our view, the large amount of cocaine found on
Appe llant’s person and the location of the crime support an inference of intent to
sell as opp osed to person al use. State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim.
App. 1995). Furthermore, the appellant was carrying a handgun and a beeper
at the time of his arrest, which is also circumstantial evidence indicating an intent
to sell. See State v. Willie J. Wade, C.C.A. No. 02C01-9709-CC-00359, 1998
Tenn. Crim . App. L EXIS 630, F ayette Coun ty (Ten n. Crim . App. filed June 11,
1998, at Jackson); State v. Ron ald Mitc hell, C.C.A. No. 02C01-9702-CC-00070,
1997 Tenn . Crim. A pp. LEXIS 871, Lauderdale County (Tenn. Crim. App. filed
September 15, 1997, at Jackso n); State v. R eginald T . Smith, C.C.A. No. 02C01-
9204-CR-00097, 1993 (Tenn. Crim. App. filed February 17, 1993, at Jackson).
Based upon the foregoing cogent circumstances, we conclude that the jury could
have reason ably foun d each of the elem ents of the offense beyon d a rea sona ble
doubt.
This issu e is withou t merit.
SENTENCING
Finally, the appellant contends that the trial cou rt erred in imposing
excessive sentences. Specifically, he claims that the trial co urt erro neou sly
-9- applied an enhan cemen t factor in sentencing him on his convictions for
possession with the intent to sell cocaine and simple possession of marijuana.
This Court's review of the sentence imposed by the trial court is de novo
with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
presumption is conditioned upon an affirmative showing in the record that the trial
judge considered the sentencing principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of
correctness and our review is de novo. State v. Poo le, 945 S.W.2d 93, 96 (Tenn.
1997).
Ordinarily, a trial co urt is required to make sp ecific findings on the rec ord
with regard to senten cing dete rminatio ns. See Tenn. Code Ann. §§ 40-35-
209(c), 40-35-210 (f). However, with regard to misdemeanor sentencing, our
Supreme Court has recently held that this Court’s review of misdemeanor
sentencing is de novo with a p resum ption o f correc tness even if th e trial co urt did
not make specific findings of fact o n the re cord b ecau se “a tria l court n eed o nly
consider the prin ciples of sen tencin g and enha ncem ent an d mitig ating fa ctors in
order to comply with the legislative mandates of the misdemeanor sentencing
statute.” State v. Troutman, 979 S.W .2d 271, 274 (Tenn. 199 8).
The burde n is up on the appe aling p arty to sh ow tha t the se ntenc e is
improper. Tenn . Code Ann. § 40-35-401(d) Sentencing Commission Comme nts.
In conducting our review, we are required, pursua nt to Ten n. Cod e Ann. §
40-35-210, to consider the following factors in sentencing:
(1) [t]he evidence, if any, received at the trial and the sentencing hearing;
-10- (2) [t]he pre senten ce repo rt;
(3) [t]he principles of sentencing and arguments as to sentencing alternatives;
(4) [t]he nature and characteristics of the criminal conduct involved;
(5) [e]vidence and information offered by the parties on the enhancement and mitigating fac tors in §§ 40-35 -113 and 40-35-114; and
(6) [a]ny statement the defendant wishes to mak e in the defen dant's own behalf about sentencing.
Under the 1989 Sentencing Act, the presumptive sentence is the minimum
within the applicable range if no mitigating or enh ancem ent factors for sentencing
are present. Tenn. C ode An n. § 40-3 5-210(c ); State v. Fletcher, 805 S.W.2d
785, 788 (Tenn. Crim . App. 1991 ). However, if such factors do exist, a trial court
shou ld start at the m inimu m se ntenc e, enh ance the m inimu m se ntenc e within the
range for enhancement factors and then reduce the sentence within the range for
the mitigating factors. Tenn. Code Ann. § 4 0-35-21 0(e). No particular weight for
each factor is prescribed by the statute, as the weight given to ea ch factor is left
to the discretion o f the trial court as long as its findings are supported by the
record. State v. Santiago, 914 S.W.2d 116, 125 (Tenn. Crim. App . 1995); see
Tenn. Code Ann. § 40-35-210 Sentencing Comm ission Comments.
Misdemeanor sentencing is controlled by Tenn. Code Ann. § 40-35-302,
which provides that the trial court shall impose a specific sentence consistent
with the purposes and principles of the 1989 C riminal S entenc ing Refo rm Ac t.
See State v. Palmer, 902 S.W.2 d 391 (T enn. 19 95). On e convicte d of a
misdemeanor, unlike one convicted of a felony, is not entitled to a presumption
of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim.
App. 1994). Misdemeanor sentences do not contain ranges of punishments, and
a misdemeanor defendant may be sentenced to the maximum term provided for
-11- the offense as long as the sentence imposed is consistent with the purposes of
the sen tencing a ct. State v. Palmer, 902 S.W.2d at 393.
At the sentencin g hearing, the trial cou rt found one enhancement factor
and no mitigating factors applicable. The trial court found that Tenn. Code Ann.
§ 40-35-1 14(9), tha t the appe llant possesse d or emp loyed a firearm during the
commission of the offense to be applicable to the appellant’s sentences for
possession with the intent to sell cocaine and simple possession of marijuana.
The trial court imposed a sentence of ten (10) years for appellant’s sentence for
possession with the intent to sell, a Class B felony, and eleven (11) months and
twenty-nine (29) da ys for sim ple possession. Because no enhancement factors
were applicable to the appellant’s conviction for unlawful posse ssion of a
weapon, the trial court imposed the minimum sentence of one (1) year for the
Class E felon y.
Enhancement factors can be utilize d by the trial judg e if these factors are
“not themselves essential eleme nts of the offen se as ch arged in the indictm ent.”
Tenn. Code Ann. § 40-35-114, Sentencing Comm ission Comments. In the
present case, the trial court use d the de adly wea pon en hance ment fa ctor to
enhance the appellant’s sentence. In o ur view, this was clearly pro per.
Possession of a deadly weapon is not an essential element of either the offense
of poss essio n with in tent to s ell or simple possession of marijuana. Thus, the trial
court approp riately applied this enha nceme nt factor.
The trial court found no mitigating factors and one (1) enhancement factor
for the poss ession c onvictions . The weight for each enhancement factor is left
to the discretion of the trial court as long as its findings are supported by the
-12- record. State v. Santiago, 914 S.W .2d at 125 . For poss ession w ith the intent
to sell, the trial court sentenced the appellant to ten (10) years, the middle of the
range for a Class B felon y. This sentence was entirely appropriate. Furthermore,
for simple possession of marijuana, a Class A misdemeanor, there is no
presumption of a minimum senten ce. Thu s, the trial cou rt impos ed app ropriate
sentences for the appellant’s convictions for possession of cocaine with the intent
to sell and simple possession of marijuana.
This issu e has n o merit.
CONCLUSION
The searc h of the appe llant’s person was constitutionally permissible, and
the trial court did not err in denying the appellant’s motion to suppress.
Furthermore, the eviden ce is sufficient to support the appellant’s convictions, and
the trial court imposed appropriate sentences. Accordingly, the judgment of the
trial court is affirmed.
____________________________________ JERRY L. SMITH, JUDGE
CONCUR:
Not Participating PAUL G. SUMMERS, JUDGE
___________________________________ JAMES CURWOOD WITT, JR.
-13-