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State v. Hester

Court of Criminal Appeals of Tennessee, Jackson

November 21, 2017

STATE OF TENNESSEE
v.
ELVIS HESTER

          Assigned on Briefs June 6, 2017

         Appeal from the Criminal Court for Shelby County No. 15-05357 John W. Campbell, Judge

         A Shelby County Criminal Court Jury found the Appellant guilty of possession of marijuana, and the trial court imposed a sentence of six years. On appeal, the Appellant challenges the sufficiency of the evidence sustaining his conviction and the trial court's sentencing him for a Class E felony instead of a Class A misdemeanor as was required by the recent amendment to Tennessee Code Annotated section 39-17-418(e). Upon review, we conclude that the evidence was sufficient to sustain the Appellant's conviction. We further conclude that the trial court erred by sentencing the Appellant for a Class E felony, and we remand to the trial court for entry of a corrected judgment reflecting that the conviction is a Class A misdemeanor and that the accompanying sentence is eleven months and twenty-nine days.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Case Remanded

          Lauren Pasley, Memphis, Tennessee, for the Appellant, Elvis Hester.

          Herbert H. Slatery III, Attorney General and Reporter; Breanne N. Hataway and Caitlin Smith, Assistant Attorneys General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant District Attorney General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

          A Shelby County Grand Jury returned an indictment charging the Appellant with possession of contraband in a penal institution, introducing contraband into a penal institution, and possession of a controlled substance, namely marijuana.

         At trial, Quintin Parks testified that he was a corrections officer with the Shelby County Division of Corrections. On June 25, 2014, he was assigned to the penal farm. That afternoon, the Appellant was escorted from where he was housed in the main building to the visitation room in the F building because he had a female visitor.

         Officer Parks estimated that twenty to twenty-five inmates were in the visitation room, but he could not estimate how many visitors were present. Near the end of the scheduled visitation period, after the Appellant's visitor had left, Officer Parks was patrolling the visitation room when he noticed a "strong odor" of marijuana coming from the area where the Appellant was sitting. The closest person to the Appellant was sitting approximately three feet away. Officer Parks recalled that the Appellant had not smelled of marijuana when he first entered the visitation room. Officer Parks told Officer Beasley about the smell of marijuana, and the officers ushered the remaining visitors out of the room.

         When only officers and inmates remained in the room, Officers Parks and Beasley approached the Appellant. The officers asked to see the bag of potato chips and the bag of candy the Appellant was holding. The officers looked inside the bags and found nothing, but they continued to smell marijuana. Officer Beasley then asked the Appellant to open his mouth. The Appellant refused and made a noise that sounded like "[r]rrnn." Officer Parks again asked the Appellant to open his mouth, and the Appellant again refused and repeated the noise. Officer Parks said that the Appellant "had his mouth puckered up" and that he realized the Appellant had something in his mouth. Officers Parks and Beasley handcuffed the Appellant. Thereafter, Officers Beasley and Coleman took the Appellant to the family room, which was next door to the visitation room.

         On cross-examination, Officer Parks said that Officers Beasley, Bridgeforth, and Braxton were the other officers in the visitation room that day and that the visitation period lasted from 6:30 p.m. to 8:00 p.m. During visitation, each inmate was allowed visits from a maximum of three adults and four children. The visitors were each allowed "one hug and a peck once" the inmate entered the room, but no further touching was allowed. The visitors were permitted to obtain snacks or drinks from the vending machines for the inmates. Officer Parks said that around the time that he and Officer Beasley were handcuffing the Appellant, Officer Coleman was returning from a smoke break. When Officer Coleman helped Officer Beasley take the Appellant to the family room, Officer Parks's involvement with the Appellant ended.

         Officer Parks acknowledged that the visitation room was monitored by security cameras but that he had not reviewed any video from the day in question.

         Officer Phillip Beasley testified that he did not smell marijuana when the Appellant entered the visitation room. At the end of the visitation period, the Appellant was sitting in an "isolated" area. The officers were doing "routine security checks" when Officer Beasley noticed the odor of marijuana coming from the Appellant.

         Officers Beasley and Parks approached the Appellant and asked to look into the bag of potato chips and the bag of candy he was holding. Finding nothing in the bags, Officer Beasley asked the Appellant to open his mouth. The Appellant said nothing but made a noise that sounded like "[h]uh." He appeared to have "a bulge in his - like in his throat like as he - it looked like he was trying to swallow something." When the Appellant was again asked to open his mouth, he refused and became "hostile." Officers Beasley and Parks restrained the Appellant, and he was taken to the family room. Officer Coleman came to the family room then escorted the Appellant to the penal farm's medical facility. Officer Beasley explained, "That's just a procedure like if - if there's a use of force, then we have to escort them to medical to be seen."

         On cross-examination, Officer Beasley testified that Officers Braxton, Bridgeforth, and Parks were also in the visitation room with approximately twenty-five or twenty-six inmates. Officer Beasley recalled that Officer Parks smelled marijuana around the Appellant and that he told Officer Beasley about the odor. Officer Beasley then approached the Appellant and smelled marijuana. The Appellant twice refused the officers' requests to open his mouth, and he appeared to be trying to swallow something. The officers got the Appellant out of his chair, handcuffed him, and escorted him out of the visitation room and into the family room. Officer Beasley stayed with the Appellant in the family room for five or six minutes until Officer Coleman arrived to escort the Appellant to the medical facility. Officer Beasley said that he considered the Appellant's refusal "to deliver whatever he had in his mouth" to be a confrontation and that inmates were required to be taken to the medical facility following a confrontation. Officer Beasley said that the Appellant also was taken to the medical facility because "he had a bulge in his throat and he was trying to swallow, but it wouldn't go down, whatever it was."

         Officer Beasley acknowledged that security cameras were in the visitation room. He had reviewed the video from the day in question but did not see the Appellant's visitor give the Appellant the contraband.

         On redirect examination, Officer Beasley said that no security cameras were in the bathrooms in the visitation room. He agreed that the Appellant's visitor could have gotten a bag of potato chips and a bag of ...


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