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State v. Brown

Court of Criminal Appeals of Tennessee, Knoxville

June 7, 2017

STATE OF TENNESSEE
v.
ALVINA TINISHA BROWN

          Assigned on Briefs January 18, 2017

         Appeal from the Criminal Court for McMinn County No. 2014-CR-99 Sandra Donaghy, Judge

         The Defendant, Alvina Tinisha Brown, was convicted by a McMinn County Criminal Court jury of tampering with evidence, a Class C felony, misdemeanor possession of marijuana, misdemeanor possession of alprazolam, and possession of drug paraphernalia, Class A misdemeanors. See T.C.A. §§ 39-16-503 (2014) (evidence tampering), 39-17-418 (2010) (amended 2014, 2016) (misdemeanor possession), 39-17-425 (2014) (possession of drug paraphernalia). The trial court sentenced the Defendant as a Range III, persistent offender to an effective fifteen years. On appeal, the Defendant contends that (1) the trial court erred by denying her motion to suppress, (2) the evidence is insufficient to support her tampering with evidence conviction, and (3) the tampering with evidence sentence is excessive. Because the evidence is insufficient to support the Defendant's conviction for tampering with evidence, we reverse the judgment of the trial court, vacate the conviction, and dismiss the charge. We affirm the remaining judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part; Reversed in Part; Vacated in Part; Dismissed in Part

          Chessia A. Cox, Athens, Tennessee, for the appellant, Alvina Tinisha Brown.

          Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; Stephen Crump, District Attorney General; and Tammy Harris-Crayne and Paul D. Rush, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         This case arises from the discovery of drugs and drug paraphernalia inside the Defendant's purse during a traffic stop. At the trial, McMinn County Sheriff's Deputy Blake Witt testified that on March 9, 2014, he assisted the McMinn County Drug Arrest Response Team, which was serving a search warrant at a house. He said that while he was driving toward the house, he received a radio call regarding a beige car that left the house. He stated that he saw a beige Chevrolet Malibu with two occupants pull out of the driveway, that he and Sergeant Tommy Allman followed the car, and that he activated his blue lights because the driver was not wearing a seat belt. Deputy Witt stated that Eugene Johnson was the driver and that the Defendant was the passenger. Deputy Witt said that Mr. Johnson did not have a valid driver's license and had an outstanding warrant for extradition to Georgia.

         Deputy Witt testified that the car was stopped in the middle of the road, that he asked the Defendant if she had a driver's license, and that she did not. Deputy Witt said that in cases where the owner was unable to move a car from the road, he performed an inventory search, recorded the contents of the car in a log, and had the car towed. He stated that during the inventory search, he found two packs of rolling papers, which he said were commonly used to roll marijuana cigarettes, and a "blue snort straw" made from an ink pen behind the gear shift in the front center console. He said that one pack of rolling papers was on the front driver's side floorboard and the other was on the front passenger-side floorboard. He stated that he recognized the straw as one commonly used to snort powdered pills because it had white residue on both sides and was of a certain length. He said that he did not find loose tobacco or any other material that could have been used to fill the rolling papers. Deputy Witt stated that he asked Deputy Paul Johnson to handcuff the Defendant until Deputy Witt could determine to whom the drug paraphernalia belonged. Deputy Witt said, though, that the Defendant was not under arrest at that time.

         Deputy Witt identified a video recording taken from Sergeant Allman's police cruiser, which was received as an exhibit and played for the jury. In the recording, a Chevrolet car with its doors open was stopped in one lane of a two-lane road. Six men stood around the car, and a woman, later identified as the Defendant, was handcuffed and facing the front of the car. Several small items had been placed on the hood of the car, including a purse. A deputy, later identified as Deputy Paul Johnson, dragged the Defendant backward and onto the ground, at which point she was no longer visible.

         Deputy Johnson said, "Get your f ------ hand out [of] the m ----- f -----, " and told another deputy that the Defendant had a bag. The Defendant repeatedly asked to be "let up, " denied having a bag, and denied having done anything. One of the deputies said he saw a bag in her front pocket, said "There's you a pill, " and handed another deputy something. The Defendant promised that she did not have anything. Deputy Johnson told the Defendant she could not sit up because she had something, and the Defendant denied having a bag and said Deputy Johnson could look in her pockets. Deputy Johnson commented to another deputy, later identified as Sergeant Allman, that he did not know where the bag went. The Defendant sat up, and her head and upper body were visible. Sergeant Allman told the Defendant that a female deputy was on the way. Deputy Johnson told the Defendant that they were not trying to hurt her. Deputy Witt began to search the purse on the hood of the car and pulled out a black bag. The Defendant asked if the deputies were going to steal her money. A deputy asked the Defendant why she had scales, and she responded that she had been on her way to sell jewelry.

         An unidentified deputy told Deputy Witt that he also "had tampering with evidence." The Defendant asked with what she had tampered, and the deputy responded that she had placed a bag in her pants. She reiterated that she did not have a bag in her pants. Deputy Johnson looked at Sergeant Allman and pointed toward the ground behind the Defendant. The Defendant asked with what was she being charged and asked to be allowed to get up because she had a fractured arm. Deputy Johnson walked away from the Defendant momentarily, the Defendant's shoulders shifted, Sergeant Allman pointed at the ground behind the Defendant, both deputies took hold of the Defendant's hands, and one of the deputies told the Defendant to open her hand. She said, "I'm going to give it to you, please don't, " and Deputy Johnson and Sergeant Allman held up the Defendant's hands and pried something from her left hand, which was in a fist. The Defendant denied that she had been tampering with or trying to hide evidence, and she said that she was trying to pull out and give the deputies what she had. She stated that she had told the deputies she smoked marijuana and that she possessed marijuana, and she promised "on [her] children" that she did not have any more. She volunteered to "shake [her] bra out" to demonstrate she did not have more drugs. Sergeant Allman loosened the Defendant's handcuffs, and she told him that she only used "pills and weed." Although the recording's sound was turned off momentarily, the Defendant, Deputy Johnson, and Sergeant Allman appeared to converse. The sound resumed, and the Defendant told the deputies that she had always been cooperative. The sound stopped again, and when it resumed the Defendant said, "[T]he whole container. Not the weed, of course, that's mine." The Defendant asked if "they" had to take her to jail, and Deputy Johnson answered affirmatively. The Defendant discussed whether she could be charged with possession of marijuana for resale, and she said that she did not intend to sell the marijuana. She discussed the jewelry she was going to sell. Deputy Johnson removed his microphone pack, and Sergeant Allman returned it to the car. A deputy commented that the Defendant had "tried to tear that bag up." Deputy Witt continued searching the purse and dropped a small object on the ground. He dragged his foot over the object and a bright white mark was left on the pavement.

         Deputy Witt testified that in the recording, Deputy Johnson handed him one half of one pill, which was scratched such that Deputy Witt could not identify some of the numbers or letters. He said that the pill was white, oblong, and contained the letters "IP." Deputy Witt stated that he later sent the pill to be analyzed by the Tennessee Bureau of Investigation (TBI) laboratory, which identified it as oxycodone. He agreed that the color of the pill was consistent with the residue he observed on the straw from the Chevrolet.

         Deputy Witt testified that Sergeant Allman found a torn "off-white colored bag" in the Defendant's hand and that Deputy Witt recognized marijuana inside the bag. Deputy Witt stated that they found two additional small bags of marijuana inside the Defendant's purse. He said that the TBI laboratory identified the contents of the bags as marijuana and that the bag found in the Defendant's hand contained 1.9 grams of marijuana.

         Deputy Witt testified that when the Defendant was handcuffed, the deputies placed her purse on the hood of the Chevrolet and that Deputy Witt saw a blue "pill crusher" in plain view inside the Defendant's purse. He said that the razor blade in the pill crusher had white residue on it and that the inside compartment contained white powder. Deputy Witt stated that he searched the Defendant's purse and found a black "sack" containing the two bags of marijuana, scales, a purple "capsule" keychain containing pills, a straw, and a glass tube.

         Deputy Witt testified that the Defendant told them she carried the scales to weigh her mother's jewelry and that Deputy Witt did not find any jewelry or other items that would require the use of scales. He said that in his experience, scales were used for weighing illegal drugs and that he classified them as drug paraphernalia. He stated that the straw in the Defendant's purse did not contain residue, that it was too small to be a drinking straw, and that one end of the straw had been cut at an angle. He said that the glass tube had a black lid and that generally, tubes of that type contained powdered drugs, although the tube in the Defendant's purse did not contain any powder. He stated that the purple keychain contained two halves of one blue pill and that the pill was identified by the TBI as alprazolam. He said that he searched the entire car and the Defendant's purse and that he did not find a prescription or a prescription pill bottle.

         On cross-examination, Deputy Witt testified that he had never seen rolling papers used to roll tobacco cigarettes, although he acknowledged it was possible. He stated that he did not send the straw for an analysis of the white residue and that he could not identify the residue. He said that the black sack inside the Defendant's purse was closed when he found it.

         Deputy Witt testified that during the traffic stop, he heard "a commotion" and saw a struggle in which deputies retrieved an object from one of the Defendant's hands, which were behind her back. He agreed that he did not see how the bag in the Defendant's hand tore. Deputy Witt said that Deputy Johnson "sat [the Defendant] on the ground" and rolled her over and that Deputy Price handed Deputy Witt the white pill. Deputy Witt stated that the deputies removed the pill from the Defendant's hand before it fell on the road. He acknowledged that he did not see the pill before it was handed to him and that it could have been in the same condition before Deputy Johnson seized it. He said that the Defendant did not have the opportunity to reach into her purse while she was handcuffed, that he did not open or manipulate the purse, and that the purse had an open top.

         A juror submitted a written question to the trial court relative to a portion of the video recording in which Deputy Witt dropped an object on the ground and dragged his foot over it, creating a bright white spot. The question characterized Deputy Witt's action as making a hand gesture, then scraping or rubbing his shoe on a white spot on the ground. In response to the question, Deputy Witt testified that he did not recall what he was doing in the recording and that he would not destroy evidence that could have been used to charge the Defendant.

         TBI Special Agent Erica Stoner, an expert in chemistry analysis and narcotics, testified that she analyzed the substances seized in this case and that the plant material was marijuana and weighed 9.19 grams. She said that an additional 3.46 grams of plant material was not tested but was "visually consistent" with the larger sample of marijuana. She stated that the white pill was oxycodone and that the blue pill was alprazolam. On cross-examination, Agent Stoner testified that the lack of the identifying numbers did not create difficulty in identifying the white pill.

         McMinn County Sheriff's Deputy Paul Johnson testified that he assisted Deputy Witt by detaining the Defendant. He said that he placed the Defendant in handcuffs and that after he handcuffed the Defendant, he saw a small plastic bag in her hands. He said that the Defendant tried to hide the bag and that he thought the bag might contain narcotics. Deputy Johnson said that he used aggressive language with the Defendant because the traffic stop occurred immediately after a "S.W.A.T." team operation involving kicking open the door of a home and subduing an armed occupant and that as a result, Deputy Johnson's adrenaline was high. Deputy Johnson stated that he placed the Defendant on the ground because she was "concealing and tampering with evidence" and that placing her on the ground was less likely to harm her. Deputy Johnson said that once the Defendant was on the ground, he could not find the plastic bag and thought she had placed the bag in her pocket or "behind her pants." He stated that he opened the Defendant's hand and found a pill, that he did not find the plastic bag, and that it was possible the Defendant ...


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