Assigned on Briefs July 8, 2014
The Defendant-Appellant, Silio Hilerio-Alfaro, was convicted as  charged by a Shelby County Criminal Court jury of one count of possession of .5 grams or more of cocaine with the intent to sell, one count of possession of .5 grams of more of cocaine with the intent to deliver, and one count of possession of a firearm with the intent to go armed during the commission of a dangerous felony. The trial court merged the delivery count with the sale count and imposed an effective sentence of eleven years. On appeal, the Defendant- Appellant challenges the sufficiency of the evidence to sustain his convictions. Upon review, we reverse the judgments of the trial court and vacate the Defendant-Appellant’s convictions.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed; Convictions Vacated; Case Remanded
Appeal from the Criminal Court for Shelby County No. 12-03269 Honorable Bernie Weinman, Judge
Stephen C. Bush, District Public Defender; Tony N. Brayton, Assistant Public Defender, Memphis, Tennessee, for the Defendant-Appellant, Silio Hilerio-Alfaro.
Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General; Amy P. Weirich, District Attorney General; and David M. Zak, Jr., Assistant District Attorney General, for the Appellee, State of Tennessee.
Camille R. McMullen, J., delivered the opinion of the court, in which John Everett Williams, J., joined. Jerry L. Smith, J., not participating.
CAMILLE R. McMULLEN, JUDGE
John Tremmel, a detective with the narcotics unit of the Shelby County Sheriff's Office, testified that on February 23, 2012, he was in an unmarked vehicle and stopped a black GMC Jimmy on Perkins Road in Shelby County after observing the vehicle traveling at a speed of fifty-two miles per hour in a forty mile-per-hour zone. When Detective Tremmel activated his blue lights and siren, the driver passed "a couple of spots where he could have stopped and pulled in" before bringing his vehicle to a stop. As he was following the vehicle, Detective Tremmel observed three individuals, later identified as the Defendant-Appellant, Pablo Chavez, and Isidro Perez, inside the vehicle. The Defendant-Appellant was seated in the front passenger seat of the vehicle, and as soon as Detective Tremmel turned on his blue lights, the driver and the Defendant-Appellant moved toward the center console of the vehicle, which made Detective Tremmel suspicious. Shortly thereafter, Detective Williams, Detective Walton, and Sergeant Mays arrived on the scene. Detective Tremmel and these other officers approached the vehicle and asked the three men inside to exit the vehicle and produce identification.
Detective Tremmel walked his certified narcotics dog around the vehicle, and the dog alerted at the driver's door and the front passenger's door. Detective Tremmel searched the front seat area and discovered a substance, later identified by the Tennessee Bureau of Investigation as 86.28 grams of powder cocaine, underneath a plastic liner in the center console. Based on his eleven years of experience as a narcotics officer, Detective Tremmel opined that the large amount of cocaine found in the center console was more than what individuals usually carried for personal use because it had a street value of thirty-five hundred to four thousand dollars. He also found a .22 caliber pistol in the center console. The pistol contained five live rounds, and a small bag near the pistol contained twelve additional rounds of the same caliber. Detective Tremmel stated that the center console opened from front to back, making it more difficult to be accessed from the back seat. He said he did not fingerprint the pistol or the bag containing the cocaine because it was often difficult to get fingerprints from these items.
David Williams, a detective with the Shelby County Sheriff's Office, testified that he found no contraband on the Defendant-Appellant or Mr. Chavez when he patted them down. During his search, he found two small bags of cocaine in a matchbox in the center console and a third small bag of cocaine in the backseat of the vehicle. He said Mr. Perez later told one of the officers on the scene that he was the owner of the GMC Jimmy. Detective Williams stated that all three individuals in the car were charged with the same offenses because all three men had access to the area where the contraband was found and none of the men acknowledged possession of the contraband.
Pablo Chavez testified that he was sitting in the middle of the backseat at the time of the stop. He said a large bag of cocaine, for which he had paid two thousand dollars, and a small amount of cocaine in a matchbox belonged to him. However, he denied that the small bag of cocaine found in the back seat belonged to him. He also denied knowing what was inside a napkin found in the center console of the vehicle. Mr. Chavez said that although he knew Mr. Perez, he had never met the Defendant-Appellant before he got into the car prior to the stop. He denied having any conversations about a drug transaction in the presence of the Defendant-Appellant and stated that Mr. Perez and the Defendant-Appellant did not know he had cocaine in his possession. Mr. Chavez asserted that while Mr. Perez and the Defendant-Appellant were preoccupied with the officer stopping them, he hid his cocaine in the center console by removing the plastic liner before placing the big bag of cocaine in the area below the liner without the other two men noticing. He claimed he did not see a weapon in the center console and denied that the weapon belonged to him. He also denied seeing anyone putting a gun in the center console. Mr. Chavez said that the small amount of drugs in the matchbook ended up inside the liner after he had hidden the big bag of cocaine in the bottom compartment. He denied that he and the other two men talked about the drugs or the gun prior to the stop.
Isidro Perez testified that he owned the GMC Jimmy and that the gun and ammunition found in the center console of the vehicle belonged to him. After identifying a picture of the contents of the center console, he stated that the perfume bottle in the photograph was his but denied that the napkin next to the perfume bottle in the picture belonged to him. He said he began carrying the gun in his vehicle after he was the victim of a robbery and assault and asserted that he had placed the gun there several days before the stop and had not moved it. Mr. Perez denied that any of the cocaine found in his car belonged to him and denied knowing about the cocaine. He explained he was looking at Detective Tremmel's lights and was concerned about his gun when Mr. Chavez placed the cocaine in the center console. Mr. Perez said that when he stopped his vehicle, he did not say ...