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State v. Hart

Court of Criminal Appeals of Tennessee, Nashville

March 1, 2018


          Assigned on Briefs in Knoxville, November 28, 2017

         Appeal from the Circuit Court for Maury County No. 24609 Robert L. Jones, Judge

         A Maury County jury convicted the Defendant, Kimberly Johnson Hart, of facilitation of possession with intent to sell one-half ounce or more of marijuana and facilitation of possession with intent to sell less than two pounds of tetrahydrocannabinol, a schedule VI narcotic. The trial court sentenced the Defendant to concurrent terms of eleven months and twenty-nine days for each conviction, thirty days to be served in jail, with the remainder to be served on supervised probation. On appeal, the Defendant asserts that the evidence is insufficient to support her convictions and that the trial court erred when it denied her request for judicial diversion. After review, we affirm the trial court's judgments.

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

          L. Samuel Patterson, Columbia, Tennessee, for the appellant, Kimberly Johnson Hart.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Brent A. Cooper, District Attorney General; and Patrick F. Powell, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and J. Ross Dyer, J., joined.



         I. Facts

         A. At Trial

         This case arises from the Defendant's retrieving packaged items containing illegal substances from the post office. For her role, a Maury County grand jury indicted the Defendant for possession of marijuana with intent to sell and possession of tetrahydrocannabinol with intent to sell. At trial, the parties presented the following evidence: Brad Mahs, a Postal Inspection Service federal agent, testified that his job was to investigate "any crimes associated with mail, " which often involved the investigation of narcotics in the mail.

         Agent Mahs testified that he monitored Postal Service data bases looking for packages with a similar weight and dimensions and consecutive numbers on express mail labels that are mailed between two areas. Agent Mahs said that, in his experience, packages with these characteristics are narcotics and then the return packages are money. It was this process that began Agent Mahs's investigation in this case when he found between eleven and sixteen packages with the "same labels, consecutive numbers on packages, lots of the same addresses and names" sent to Columbia, Tennessee. Agent Mahs stated that many of the packages were shipped to 2019 Westwood Drive, the Defendant's former residence. Packages were also sent from a Colorado address to two other addresses, 819 West 9th Street and 314 Caldwell Drive, both associated with the Defendant. On return packages from these residences, the Defendant's name was used as well as the name "Cody Brown."

         Agent Mahs identified a photograph of two handwritten express mail labels sent to an address in Monument, Colorado with the return address of "Kimberly Hart, 2019 Westwood Drive." He also identified a photograph of an express mail label coming from Colorado to 2019 Westwood Drive addressed to "B. Woodruff." Another photograph depicted an express mail label from "Salus Natural Body Care" to "B. Brown" at 2019 Westwood Drive. The package weighed approximately fourteen pounds, and the postage fee was $93.00. A fourth photograph depicted a label addressed to 2019 Westwood Drive from Salus Natural Body Care. The packaged weighed almost twenty pounds and the postal fee was $112.75. Agent Mahs stated that "close to eleven" packages with similar characteristics were associated with the Defendant's addresses.

         Agent Mahs testified that he found the fact that the labels were handwritten was of note. He explained that express mail is "so expensive" that it is "usually" used by businesses that have a "pre-print plan" through the postal service and, thus, the labels are printed, not handwritten. About the particular package at issue in this case, on May 5, 2015, the post office notified Agent Mahs that the package was at the post office and "some people [] had called numerous times to pick it up as well as com[e] to the Post Office two times at least to pick up that package." Agent Mahs identified the express label on the package that was addressed to "B. Brown, 2019 Westwood Drive, Columbia" from Colorado. Pictures of the marijuana contained in the box were entered into evidence. Notes attendant to the package indicated a female caller had requested the package be redelivered from the Westwood address to 314 Caldwell Drive. This second address was also associated with the Defendant.

         Agent Mahs testified that, given all the "indicators" with this package, he requested the police department have a K-9 officer "run the package" to verify his suspicions of narcotics. The police department complied with the request, and the K-9 officer "alerted" to the presence of narcotics. Meanwhile, "[t]he customer" had called trying to "get a hold of the package." The caller left a cell phone number and name. Agent Mahs called the number and spoke with the caller, the Defendant, notifying her that her package was available for pick-up. The Defendant came to the post office to retrieve the package. The Defendant provided her identification, signed for the package and left the post office. Agent Mahs described the Defendant as "[o]verly suspicious" in her demeanor.

         Agent Mahs testified that the Defendant began walking toward a nearby Fred's store when police officers stopped her to inquire about the package. One of the officers opened the package, the marijuana was found, and the Defendant taken into custody. After being transported to the police department, Agent Mahs interviewed the Defendant. During the interview, the Defendant admitted that she had been the person checking on the package and that it was her cell phone Agent Mahs had earlier called. This phone number was the same number listed on the packages going back to Colorado. The Defendant also admitted that she had lived at both the Westwood and Caldwell addresses that had been listed on the packages Agent Mahs had been monitoring. She stated that she had recently purchased and moved into a new residence. Agent Mahs recalled that the explanation that the Defendant provided for her possession of the marijuana was "pretty convoluted" and varied. The Defendant told Agent Mahs that she was picking the package up for her nephew and then said she was picking the package up for her sister. Later, she said that her father told her the package was at the post office and that she was picking it up at his request. She also told Agent Mahs that "[a]nything important she had sent [to the Westwood] address because her dad is always at home." The Defendant stated in her interview that she had believed that the package was figurines, a housewarming gift from her sister. Later in the interview, she contradicted this statement, saying that she did not think her sister had "got her something" because her sister did not have any money. The package containing the marijuana had cost $40.00 to ship.

         Agent Mahs testified that, to his knowledge, no one else had ever checked on the package other than the Defendant. Postal employees reported that the Defendant had come with someone else with her to check on the package, but she was always present. Agent Mahs testified that, in his experience, narcotic packages often list a name different from the name of the person picking up the package.

         On cross-examination, Agent Mahs testified about the express mail labels sent from the Defendant to Monument, Colorado. He agreed that he did not know the contents of the packages associated with the labels. About the package mailed from Salus Beauty to the Westwood Drive address that Agent Mahs had earlier testified about, Agent Mahs stated that he was unaware of who picked up that package. Agent Mahs testified that, through the course of his investigation, he learned that the "B.Brown" listed as the recipient on the package the Defendant picked up from the post office on May 5, 2015, was the Defendant's sister, Betsy Brown. He further confirmed that, during the interview, the Defendant never admitted to ownership of the marijuana.

         On cross-examination, Agent Mahs testified that during the course of his investigation he learned that Betsy Brown and Cody Brown, the Defendant's sister and nephew, respectively, also "used" the Westwood address for a period of time. Agent Mahs confirmed that it was his understanding that the Defendant had lived with her parents at the Westwood address, then moved to the Caldwell address, and recently moved to the West 9th address.

         On redirect examination, Agent Mahs testified that, to his knowledge, neither Betsy Brown nor Cody Brown ever possessed the box of marijuana; however, the Defendant had possession of the box of marijuana at the time she was taken into custody.

         Rebecca Hernandez, a Tennessee Bureau of Investigation ("TBI") forensic scientist, testified as an expert witness in the field of Forensic Chemistry. Ms. Hernandez stated that she examined two substances submitted in this case: 1) a plant material, and 2) a brown substance. The plant material was 447.2 grams, almost a pound, of marijuana, and the brown substance was 32.40 grams of tetrahydrocannabinol, both Schedule VI substances.

         Jeff Seagroves, a Columbia Police Department narcotics investigator, testified as an expert witness in the field of narcotics investigation. Officer Seagroves testified that he executed a search warrant of the package the Defendant retrieved from the post office. He recalled that he detained the Defendant and advised her that he had a search warrant for the package. The package was opened, and he observed a "vacuum sealed type bag" containing what appeared to be marijuana. Officer Seagroves said that the tetrahydrocannabinol, which he termed marijuana wax, was later weighed and determined to be a little more than an ounce.

         Officer Seagroves testified that, based upon his experience, a "user" normally purchased between a few grams to an ounce of marijuana at a time. He stated that only occasionally would he see a half ounce to an ounce purchased by someone for use. More commonly it is lower amounts. Officer Seagroves estimated that "high grade marijuana" was sold for between forty to sixty dollars a gram and that the marijuana wax was sold for approximately forty dollars a gram. In his experience, the amounts of marijuana and marijuana wax found in the Defendant's possession were not for use but were consistent with the amount of marijuana used for resale. Officer Seagroves testified that the Defendant was in possession of the narcotics within 1, 000 feet of a school zone. Officer ...

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