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State v. Matthews

Court of Criminal Appeals of Tennessee, Jackson

January 24, 2017


          Assigned on Briefs November 1, 2016

         Appeal from the Circuit Court for Lake County No. 13-CR-9837 R. Lee Moore, Jr., Judge

         The 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

          Hal J. Boyd, Tiptonville, Tennessee, for the appellant, George Washington Matthews.

          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.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Camille R. McMullen, JJ., joined.


          J. ROSS DYER, JUDGE

         Just 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 facility.

         After 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.

         Brock 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.

         Lieutenant 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.

         Lieutenant 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.

         The 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.

         On 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.


         I. Sufficiency of The Evidence

         When a 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).

         Guilt 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 fact. Id.

         The 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.

         A. Count One - Possession of A Controlled Substance, Marijuana, With Intent to Sell or Deliver.

         It is 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." Id.

         The act 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. ยง 39-17-419 (stating that possession may be inferred from "relevant ...

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