Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs December 9, 2014 at Knoxville
Appeal from the Criminal Court for Davidson County No. 2010-A-601 Mark J. Fishburn, Judge
Michael A. Colavecchio (on appeal) and Karl Pulley (at trial), Nashville, Tennessee, for the appellant, Don Arturo Hyler.
Herbert H. Slatery, III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Victor S. Johnson, III, District Attorney General; and Antoinette Welch and John Zimmerman, Assistant District Attorneys General, for the appellee, State of Tennessee.
Thomas T. Woodall, P. J., delivered the opinion of the Court, in which Alan E. Glenn and Timothy L. Easter, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
Detective Justin Fox of the Metropolitan Nashville Police Department testified that, under his direction, a confidential informant, who previously had bought cocaine from the defendant, telephoned the defendant on December 8, 2009, seeking to buy nine ounces of cocaine. They agreed upon a price of $8250. The informant told Detective Fox that the defendant was employed at a Nashville restaurant called "At the Table." The informant was to meet the defendant at a local Wendy's restaurant. Detective Fox observed their meeting, and, on electronic monitoring equipment, heard the informant say, "It's good, " signifying to him that the purchase had been made from the defendant. Detective Fox followed the informant to an agreed-upon meeting place, where he retrieved the recording equipment and took possession of the cocaine which was determined to weigh 250 grams.
In a series of conversations beginning on December 11, 2009, the defendant agreed to sell the confidential informant a kilogram of cocaine. On December 16, the defendant told the informant that he had located a supplier for the cocaine, and Detective Fox followed the defendant from his job at the restaurant to another location in Nashville, where he met another individual who got into the defendant's car. The informant contacted Detective Fox and said that the defendant had told him that he had gotten the cocaine. The defendant's vehicle was stopped on I-24 in Nashville, and Detective Fox, upon searching the vehicle, found a "brick" of cocaine under the front passenger seat.
We will consider the issues presented on appeal by the defendant.
I. Sufficiency of the Evidence
Our review of a defendant's challenge to the sufficiency of the evidence to sustain a conviction is governed by well settled principles of law. Our standard of review regarding sufficiency of the evidence 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 (1979); see also Tenn. R. App. P. 13(e). After a jury finds a defendant guilty, the presumption of innocence is removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Consequently, the defendant has the burden on appeal of demonstrating why the evidence was insufficient to support the jury's verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellate court does not weigh the evidence anew; rather, "a jury verdict, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts" in the testimony and all reasonably drawn inferences in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, "the State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be drawn therefrom." Id. (citation omitted). This standard of review applies to guilty verdicts based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes, our supreme court adopted the United States Supreme Court standard that "direct and circumstantial evidence should be treated the same when weighing the sufficiency of such evidence." Id. at 381. Accordingly, the evidence need not exclude every other reasonable hypothesis except that of the defendant's guilt, provided the defendant's guilt is established beyond a reasonable doubt. Id.
The State presented substantial proof as to the defendant's guilt. Detective Fox testified as to recorded telephone conversations between the informant and the defendant, explaining the jargon they used in setting up the drug sale by the defendant to the informant. Detective Fox and other officers watched from a distance as the informant entered and soon left the defendant's vehicle and listened to the conversation between the two as the informant purchased the drugs. After the sale, officers met with the informant, who gave them approximately nine ounces of cocaine. As to the conviction for possession with intent to sell, Detective Fox testified as to the recorded conversations between the informant and defendant arranging the sale of cocaine to the informant. Following the traffic stop of the defendant's vehicle, they seized a kilo of cocaine from inside the passenger compartment. The State also presented unchallenged evidence ...