Assigned on Briefs November 1, 2016
from the Circuit Court for Lake County No. 13-CR-9837 R. Lee
Moore, Jr., Judge
defendant, George Washington Matthews, was indicted for one
count of possession of over one-half ounce of marijuana with
intent to sell or deliver and two counts of attempting to
introduce contraband into a penal facility. After trial, a
jury found the defendant guilty on all counts. The defendant
received a total effective sentence of twelve years. On
appeal, the defendant argues the evidence was insufficient to
support his convictions; the trial court erred when it
allowed testimony regarding the defendant's recent
incarceration; and his indictment was defective. After
review, we affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Boyd, Tiptonville, Tennessee, for the appellant, George
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Assistant Attorney General; Phil Bivens, District
Attorney General; and Lance Webb, Assistant District Attorney
General, for the appellee, State of Tennessee.
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
ROSS DYER, JUDGE
after midnight in the early morning hours of February 17,
2013, Deputy Thomas Hollowell was patrolling Proctor City
Road on the eastern boundary of the Northwest Correctional
Center ("the prison") in Lake County, Tennessee.
According to Deputy Hollowell, this road and a nearby field
are known avenues for smuggling contraband into the prison.
Due to the contraband problem, Deputy Hollowell frequently
patrolled the area. During his patrol that morning, Deputy
Hollowell discovered the defendant and another individual
lying in a ditch alongside Proctor City Road. The ditch is
located approximately 100 to 150 yards from the eastern
boundary of the prison. If followed, the ditch leads to the
prison greenhouse and firing range. Deputy Hollowell knew
from personal experience that the firing range was a
"hotspot" for smuggling contraband into the prison
spotting the defendant and his co-defendant, Deputy Hollowell
stopped and exited his vehicle. Deputy Hollowell also noticed
two large duffel bags lying in the ditch approximately one to
two feet from the defendant. After detaining the defendant
and the co-defendant, Deputy Hollowell inspected the duffel
bags and discovered they contained forty-four individually
packaged one-pound bags of tobacco; twenty-three cell phones
with batteries and chargers; and approximately 390 grams of
marijuana in thirteen individual packages. Deputy Hollowell
did not see the defendant or his co-defendant carrying or
handling the duffel bags. At trial, Deputy Hollowell
testified there were no fingerprints or other physical
evidence on the bags or their contents. He also acknowledged
there were no receipts linking the defendants to the cell
phones found inside the two duffel bags. Deputy Hollowell
testified that Northwest Correctional Center is a penal
institution where prisoners are quartered.
Sain, a special agent for the Tennessee Bureau of
Investigation, testified as an expert witness for the State.
As a special agent and forensic scientist, his duties include
testing and identifying controlled substances brought to the
laboratory by law enforcement. Agent Sain was tasked with
identifying the packages of plant material found in the
defendant's duffel bags by Deputy Hollowell. Upon visual
inspection, Agent Sain identified the plant material in the
packages as marijuana. Agent Sain removed and unwrapped one
of the individual packages and weighed it. The weight of the
plant material from that package, without the wrapper, was
approximately twenty-nine grams. Agent Sain explained there
are approximately twenty-eight grams in an ounce, and
approximately fourteen grams in one-half ounce. Agent Sain
also weighed the other packages together. The total weight of
the packages was approximately 390 grams, or fourteen ounces.
Using a sample of the material, Agent Sain conducted a
microscopic and modified Duquenois-Levine color test. Both
tests confirmed the plant material was in fact marijuana. He
then prepared a report of his findings, which was entered
into evidence at trial.
David Ables, an investigator at the prison, testified the
prison is a penal facility where approximately 2400 inmates
are housed. The prison has a history of problems with
contraband; the biggest contraband problems being illegal
drugs, cell phones, and tobacco. The prison consists of some
areas that are enclosed behind walls and razor wire and other
areas that are simply behind a fence. Inmates who earn a
lower security classification are allowed to go outside the
prison walls and perform maintenance on the prison grounds.
Lieutenant Ables explained the Proctor City Road area, where
the defendant was found, is a well-known drop site for
smuggling illegal contraband into the prison. The portion of
the ditch where Deputy Hollowell located the defendant is not
accessible to inmates. Someone attempting to smuggle
contraband into the prison would need to get closer to the
prison property before inmates would actually be able to
access the contraband. Lieutenant Ables explained that other
popular drop spots for contraband include the prison
greenhouse and firing range. The defendant was found about
one half to three quarters of a mile away from the
prison's greenhouse and firing range. There is also an
area about 200 yards from where the defendant was found, near
a "No Trespassing" sign, which is also accessible
to inmates. Finally, Lieutenant Ables stated the defendant
had been an inmate of the prison and was released
approximately two weeks prior to this incident.
Joseph Vernon of the Lake County Sheriff's Office
testified there had been a number of contraband arrests made
in the Proctor City Road area. On February 17, 2013,
Lieutenant Vernon received a phone call from Deputy Hollowell
informing him that he had arrested two individuals with two
large duffel bags containing contraband. Based on his
extensive career in law enforcement, including twenty-two
years with the Department of Correction, Lieutenant Vernon
was familiar with the street value of marijuana, as well as
its value inside prison facilities. He explained thirteen to
fourteen ounces of marijuana, depending on the quality, would
be worth at least between $1300 and $1400 on the street. That
same amount of marijuana, depending on the prevalence of
marijuana within the specific facility, would be worth at
least $20, 000 or more inside a prison. Cell phones were also
a very valuable commodity in most prisons. Lieutenant Vernon
testified he knew of instances where inmates paid more than
$500 dollars to have a cell phone smuggled into prison.
Lieutenant Vernon testified he worked at Northwest
Correctional Center for fifteen years before moving to
internal affairs. He knew the area along Proctor City Road
where the defendant was found. He confirmed it is a popular
location for smuggling contraband into the prison.
State rested its case after calling Deputy Hollowell, Special
Agent Sain, Lieutenant Ables, and Lieutenant Vernon.
Following a jury-out hearing, the defense rested without
presenting any proof. The jury found the defendant guilty of
the following: possession of marijuana over one-half ounce
with intent to sell or deliver (Count 1); attempt to
introduce contraband, marijuana, into a penal institution
(Count 2); and attempt to introduce contraband, cell phones,
into a penal institution (Count 3). On March 26, 2015, the
trial court sentenced the defendant to six years under Count
1, twelve years under Count 2, and eleven months and
twenty-nine days under Count 3. The trial court ordered all
sentences to run concurrently, for a total effective sentence
of twelve years.
April 22, 2015, the defendant filed a timely motion for new
trial alleging the evidence was insufficient to support his
convictions, numerous errors on the part of the trial court,
and deficiencies in the indictments and jury verdict. On
November 23, 2013, the trial court heard argument on the
defendant's motion for new trial. The trial court denied
the defendant's motion, and this timely appeal followed.
On appeal, the defendant argues: the evidence presented at
trial is insufficient to support his convictions; the trial
court erred in allowing testimony regarding the
defendant's incarceration at Northwest Correctional
Complex; the trial court erred in excluding statements made
by the defendant at the time of arrest; and the indictments
in Count 1 and Count 2 are defective. The State argues the
evidence is sufficient to support the defendant's
convictions, the trial court did not err by allowing
testimony regarding the defendant's recent incarceration,
and the indictments are not defective. Following a thorough
review of the record and briefs, we affirm the judgments of
the trial court.
Sufficiency of The Evidence
defendant challenges the sufficiency of the evidence on
appeal, the relevant question for the reviewing court 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." State v. Evans, 838 S.W.2d
185, 190-91 (Tenn. 1992) (citing Jackson v.
Virginia, 443 U.S. 307 (1979)). All questions involving
the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by
the trier of fact. See State v. Papas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). "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).
Our Supreme Court has stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial
judge and the jury see the witness face to face, hear their
testimony and observe their demeanor on the stand. Thus the
trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is
there human atmosphere and the totality of the evidence
cannot be reproduced with a written record in this Court.
Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966)
(citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d
523 (1963)). "A jury conviction removes the presumption
of innocence with which a defendant is initially cloaked and
replaces it with one of guilt, so that on appeal a convicted
defendant has the burden of demonstrating that the evidence
is insufficient." State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
may be found beyond a reasonable doubt where there is direct
evidence, circumstantial evidence, or a combination of the
two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990) (citing State v. Brown, 551 S.W.2d
329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d
895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence "'is the same whether
the conviction is based upon direct or circumstantial
evidence.'" State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011) (quoting State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of fact
must evaluate the credibility of the witnesses, determine the
weight given to witnesses' testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State,
575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover, the
jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence.
Dorantes, 331 S.W.3d at 379 (citing State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). The extent to
which the circumstances are consistent with guilt and
inconsistent with innocence are questions primarily for the
jury. Id. This Court, when considering the
sufficiency of the evidence, shall not reweigh the evidence
or substitute its inferences for those drawn by the trier of
defendant argues the evidence was insufficient to convict him
of possession of a controlled substance, marijuana, with
intent to sell or deliver, because there was no evidence that
the defendant physically handled the duffel bags or that he
had the power and intention to exercise dominion and control
over the drugs. He also argues the evidence was insufficient
to support his convictions for attempting to introduce
contraband into a penal facility. Specifically, he argues
there was no evidence he possessed the duffel bags and,
therefore, acting with the kind of culpability necessary to
commit the completed crime, and there was no evidence of acts
in furtherance of the attempted crime. After viewing the
evidence in the light most favorable to the State, we
disagree with the defendant.
Count One - Possession of A Controlled Substance, Marijuana,
With Intent to Sell or Deliver.
an offense for a defendant to knowingly possess a controlled
substance with intent to manufacture, deliver, or sell the
controlled substance. Tenn. Code Ann. § 39-17-417(a)(4).
A violation of Tennessee Code Annotated section
39-17-417(a)(4) involving more than one-half ounce but less
than ten pounds of marijuana is punishable as a Class E
felony. Tenn. Code Ann. § 39-17-417(g)(1). "Before
a defendant may be convicted of possessing a controlled
substance with intent to manufacture, distribute, or sell,
the State must prove beyond a reasonable doubt the substance
was a controlled substance and the defendant possessed the
substance with the intent to manufacture, deliver or sell the
substance." State v. Cooper, 736 S.W.2d 125,
128 (Tenn. Crim. App. 1987). "It 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 substances were possessed
with the purpose of selling or otherwise dispensing."
of possession may be actual or constructive. Id. at
129. "In order for a person to 'constructively
possess' a drug, that person must have the 'the power
and intention at a given time to exercise dominion and
control over . . . [the drugs] either directly or through
others.'" Id. (quoting State v.
Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)).
In other words, "constructive possession is the ability
to reduce an object to actual possession." Id.
Constructive possession depends on the totality of the
circumstances in each case and may be established through
circumstantial evidence. State v. Robinson, 400
S.W.3d 529, 534 (Tenn. 2013); see also Tenn. Code
Ann. § 39-17-419 (stating that possession may be
inferred from "relevant ...