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State v. Turner

Court of Criminal Appeals of Tennessee, Knoxville

April 13, 2017


          Assigned on Briefs November 16, 2016

         Appeal from the Criminal Court for Knox County No. 105636 Steven Wayne Sword, Judge

         Defendant, Ronald Turner, appeals his convictions stemming from various drug and firearm offenses. He challenges the sufficiency of the evidence and argues that the criminal gang enhancement of some of his offenses pursuant to Tennessee Code Annotated section 40-35-121(b) was unconstitutional in light of State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016). Upon review, we determine that the evidence is sufficient to support Defendant's convictions. However, because Defendant is entitled to retroactive application of the holding in Bonds, we vacate the sentences of the underlying convictions to which the enhancement was applied and remand those convictions for resentencing. Additionally, we conclude that the trial court committed plain error by improperly applying the Drug-Free School Zone Act and remand for resentencing on this basis. We also remand for correction of clerical errors.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Reversed in Part, Affirmed in Part, and Remanded

          J. Liddell Kirk (on appeal) and Michael A. Graves (at trial), Knoxville, Tennessee, for the appellant, Ronald Turner.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General, Senior Counsel; Charme P. Allen, District Attorney General; and TaKisha Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.



         Procedural History and Factual Summary

         Defendant was indicted with one count of possession with intent to deliver more than .5 grams of cocaine within a drug-free zone (DFZ), one count of possession with intent to sell more than .5 grams of cocaine within a DFZ, two counts of possession of a firearm during the commission of a dangerous felony, one count of theft of property valued over $500, and one count of unlawful possession of a weapon. The indictment also included three separate counts for the criminal gang enhancement based on both drug charges and the unlawful possession of a weapon charge. Defendant proceeded to a bifurcated trial, during which the following facts were adduced.

         Officer Thomas Turner of the Knoxville Police Department testified that, on January 3, 2015, he observed a silver Ford Crown Victoria turning onto Fern Street. Officer Turner began following the vehicle and observed it reach a speed of forty miles per hour on two different occasions while driving on streets with a speed limit of twenty-five miles per hour. Officer Turner initiated a traffic stop and approached the driver of the vehicle.

         The driver of the vehicle produced his driver's license. Officer Turner explained the reason for stopping the vehicle and requested that the driver roll down the rear windows of the car because they were darkly tinted. The driver complied with this request, which revealed Defendant sitting in the driver's side back seat. Officer Turner opened the door and asked Defendant to exit the vehicle. Defendant complied. Officer Turner then placed Defendant's hands behind his back and applied handcuffs.[1] Officer Turner's backup, Officer Pickens, [2] observed the handle of a firearm protruding from the waistband of Defendant's pants, and he confiscated the firearm, which was a Kel-Tec nine-millimeter semiautomatic handgun. The firearm was loaded with fourteen rounds in the magazine and one round in the chamber.

         As Officer Turner prepared to put Defendant in the back of his patrol car, Officer Turner searched Defendant's person, discovering a cigarette pack in the right pocket of Defendant's pants. The cigarette pack contained several cigarettes and "two separate, small clear plastic baggies" containing numerous small rocks of crack cocaine. Officer Turner's portable field scale weighed one of the baggies at 1.5 grams and the other at 1.0 grams.

         Based on Officer Turner's training and experience, the amount of cocaine in the baggies exceeded the amount typically carried by a drug user and was consistent with the amounts carried for sale by drug dealers. Defendant's possession of a firearm and lack of possession of drug paraphernalia were also indicative of Defendant's possession of the cocaine with the intent to sell rather than for personal consumption. Officer Terry Pate of the Knoxville Police Department, who was certified by the trial court as an expert in narcotics investigations without objection, also testified that, based on his training and experience, the nature and amount of cocaine in Defendant's possession, in addition to Defendant's possession of a firearm but no possession of drug paraphernalia, indicated that Defendant intended to sell the cocaine.

         Special Agent Mollie Stanfill, a forensic scientist for the Tennessee Bureau of Investigation, performed a chemical analysis on the substance in the plastic baggies and confirmed the presence of .87 grams of cocaine base. Lisa Knight of the Tennessee Department of Safety and Homeland Security testified that Defendant had never applied for or been issued a handgun carry permit.

         Officer Turner confirmed that the route taken by the Crown Victoria along Fern Street passed in front of Fair Garden Preschool. Donna Roach, office manager and administrative technician for KUB Geographic Information Systems, confirmed that a computer model calculated the location indicated by Officer Turner to be within 1000 feet of Fair Garden Preschool.

         Defendant testified that his brother had been murdered the night before he was arrested. Prior to the arrest, Defendant was at his cousin's house. Someone who was with Defendant's brother when he was killed gave Defendant his brother's belongings, which included the handgun. Several packs of cigarettes were on top of a coffee table. Before leaving his cousin's house, Defendant walked over to the table and picked up a pack of Newport cigarettes. Defendant shook the pack and took it with him because it "felt the fullest."

         Defendant left his cousin's house with some people to go to the store to get a drink. On the way, Defendant pulled a cigarette from the pack, and one of the bags of cocaine fell out. Defendant then asked the driver to take him back to his cousin's house because he "didn't want to have somebody else's belongings." On the way back, they passed Officer Turner, with whom Defendant was previously familiar, and Officer Turner stopped the vehicle.

         Defendant testified that he knew he had the gun in his possession, but he did not know that the cocaine was in the pack of cigarettes. Because Defendant did not know that there were drugs in the pack of cigarettes, Defendant was unaware that he was possessing drugs in a DFZ. Defendant took the gun with him because one of the rules of his cousin's house was "no guns."

         Defendant was convicted as charged on all of the underlying offenses, except for the charge of theft, of which Defendant was acquitted.[3] After the jury returned verdicts on the underlying offenses, the court then proceeded to the second phase of the bifurcated trial on the criminal gang enhancement charges. The State presented proof that Defendant was a member of a criminal street gang known as the Vice Lords. After hearing all of the proof, Defendant was convicted of the criminal gang enhancements for all three of the underlying offenses.

         After a sentencing hearing, Defendant received an effective sentence of nineteen years. The trial court sentenced Defendant to fifteen years for possession of cocaine with intent to deliver and merged into it the conviction for possession of cocaine with intent to sell. The trial court sentenced Defendant to four years for possession of a firearm during the commission of a dangerous felony and merged into it the other conviction for the same offense. Pursuant to statute, the sentence for possession of a firearm during the commission of a dangerous felony was mandatorily consecutive to the sentence for possession of cocaine with intent to deliver. The trial court sentenced Defendant to one year for the unlawful possession of a firearm conviction and ran it concurrently with the sentence for possession with intent to deliver.

         After the sentencing hearing, the trial court entered the judgments for the substantive offenses on January 12, 2016, and the judgments were filed on January 13, 2016. Defendant filed a motion for new trial on February 16, 2016. The trial court held a hearing on the motion for new trial on March 3, 2016, and denied the motion. The written order denying the motion was entered the following day. Defendant filed a notice of appeal on March 31, 2016.


         Defendant argues that the evidence was insufficient to support his convictions for possession of a controlled substance with intent to sell or deliver[4] and that his criminal gang enhancements are unconstitutional. The State argues that Defendant's notice of appeal was untimely and that there was sufficient evidence to support his convictions. The State further argues that Defendant has waived his challenge to the criminal gang enhancements by failing to raise a pre-trial challenge to the constitutionality of the ...

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