Assigned on Briefs June 6, 2017
from the Criminal Court for Shelby County No. 15-05357 John
W. Campbell, Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Affirmed in Part; Reversed in Part; Case Remanded
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.
McGee Ogle, J., delivered the opinion of the court, in which
Thomas T. Woodall, P.J., and Robert W. Wedemeyer, J., joined.
MCGEE OGLE, JUDGE.
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.
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.
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.
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.
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
Parks acknowledged that the visitation room was monitored by
security cameras but that he had not reviewed any video from
the day in question.
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.
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
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."
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.
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 ...