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State v. Brown

Court of Criminal Appeals of Tennessee, Jackson

March 29, 2018

STATE OF TENNESSEE
v.
DAVID VON BROWN

          Assigned on Briefs December 5, 2017

          Appeal from the Circuit Court for Madison County No. 16-3 Roy B. Morgan, Jr., Judge

         The Defendant, David Von Brown, was convicted by a Madison County Circuit Court jury of possession of .5 grams or more of cocaine with intent to sell, a Class B felony; possession of .5 grams or more of cocaine with intent to deliver, a Class B felony; two counts of possession of a firearm during the commission of a dangerous felony, Class D felonies; two counts of possession of a firearm during the commission of a dangerous felony by one having a prior felony conviction, Class D felonies; and felon in possession of a firearm, a Class D felony. The trial court merged the two drug convictions and imposed a sentence of twelve years on that conviction; the court merged the four various possession of a firearm during the commission of a dangerous felony convictions and imposed a sentence of five years on that conviction; and the court imposed a sentence of five years on the felon in possession of a firearm conviction. The court ordered that the sentence for the possession of a firearm during the commission of a dangerous felony conviction be served consecutively to the other sentences, which were to be served concurrently, for a total effective term of seventeen years in the Department of Correction. On appeal, the Defendant argues that: (1) the evidence is insufficient to sustain his convictions; (2) the verdict is against the weight of the evidence; and (3) the trial court erred in not considering any mitigating factors in determining his sentences. After review, we affirm the judgments of the trial court.

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

          Terita Hewlett, Memphis, Tennessee (on appeal); and Jeremy Epperson, Jackson, Tennessee (at trial), for the appellant, David Von Brown.

          Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant Attorney General; Jerry Woodall, District Attorney General; and Aaron J. Chaplin, Assistant District Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in John Everett Williams and J. Ross Dyer JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         In a superseding indictment returned on December 28, 2015, the Defendant was charged with possession of .5 grams or more of cocaine with intent to sell or deliver (Counts 1 and 2); possession of a firearm during the commission of a dangerous felony (Counts 3 and 4); possession of a firearm during the commission of a dangerous felony by one having a prior felony conviction (Counts 5 and 6); felony evading arrest (Count 7); reckless driving (Count 8); driving on a canceled, suspended, or revoked license (Count 9); driving on a canceled, suspended, or revoked license - prior offender (Count 10); assault (Count 11); resisting arrest (Count 12); violation of the gang enhancement statute (Counts 13, 14, and 16); and felon in possession of a firearm (Count 15).

         Prior to trial, the court granted the State's motion to dismiss Count 8. The court also dismissed Counts 13, 14, and 16, relating to the gang enhancement statute, pursuant to this court's decision in State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016). It appears that an earlier trial was held in May 2016, at which the jury found the Defendant guilty as charged in Counts 7, 9, 11, and 12 but was hung on the remaining counts. A few months later, the Defendant entered a guilty plea in Count 10. A retrial was held on the remaining counts, Counts 1 through 6 and 15, in October 2016.

         Officer Blake Lambert with the Jackson Police Department testified that he was driving on patrol on June 2, 2014, around 9:00 p.m. when he noticed a vehicle swerve over two lanes of traffic and almost hit two pedestrians. He followed the vehicle for a short time and then activated his blue lights to initiate a traffic stop. The vehicle did not stop but, instead, tried to flee from Officer Lambert by turning onto different roads and driving through the parking lot of a factory before ultimately pulling into a cul-de-sac.

         The vehicle pulled into a driveway at the end of the cul-de-sac, and the driver, identified as the Defendant, got out and fled on foot. When the Defendant got out of the car, Officer Lambert noticed that he was carrying something in his hand and "whatever it was was reflecting off of th[e] street light." Officer Lambert chased the Defendant on foot, keeping him in sight the entire time but not specifically looking at his hands.

          The Defendant ran to the back of the house at 70 Alpine Cove and unsuccessfully attempted to climb over a fence. Officer Lambert tried to restrain the Defendant, but the Defendant struggled, going so far as to "strik[e] and punch[]" the officer. During the struggle, the two fell into the driveway of 65 Alpine Cove, next to the back passenger side of an older model sedan. Officer Lambert was on top of the Defendant, while the Defendant was either on his stomach or on his hands and knees, attempting to stand up. At no time during the struggle could Officer Lambert see the Defendant's hands because they "were always underneath his body either trying to push up or falling up under him."

         Eventually, other officers arrived on the scene, and the Defendant was handcuffed and put in the back of a patrol car. The officers searched the route the Defendant had run from his vehicle to 70 Alpine Cove, looking for whatever had been in the Defendant's hand when he got out of the car. They did not search in the area of 65 Alpine Cove because Officer Lambert was "amped up, " and "it just slipped [his] mind" in the aftermath of the struggle. The officers did not find anything in their search that evening. The Defendant was taken to the county jail, where he was booked and found to be in possession of $670.10.

         Captain Brian Wilson of the Madison County Sheriff's Office testified that when the Defendant was booked into jail the night of his arrest, he was allowed to ...


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