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State v. Alexander

Court of Criminal Appeals of Tennessee, Jackson

May 14, 2019

STATE OF TENNESSEE
v.
JONATHAN ALEXANDER

          Assigned on Briefs February 5, 2019

          Appeal from the Circuit Court for Hardin County No. 17-CR-104 Charles C. McGinley, Judge

         A Hardin County jury convicted the defendant of two counts of unlawful possession of a firearm (counts 1 and 2), possession of a Schedule II controlled substance with intent to sell or deliver (count 3), possession of unlawful drug paraphernalia (count 4), and possession of a firearm during the commission of a dangerous felony (count 5). On appeal, the defendant challenges the sufficiency of the evidence supporting his convictions in counts 3 and 5 and asserts the trial court erred in failing to instruct the jury on the inference of casual exchange pursuant to Tennessee Code Annotated section 39-17-419. Upon our review of the record, we conclude sufficient evidence exists to support the defendant's convictions and the defendant failed to preserve the jury instruction issue for appeal. In reviewing the sentencing determinations of the trial court, however, we note several errors in the completion of the judgment forms for counts 1, 2, 3, and 4. Specifically, there are clerical errors in the felony classifications as marked in counts 1, 2, and 3 (in count 1, the trial court incorrectly classified the conviction as a Class C felony rather than a Class B felony; in count 2, the trial court incorrectly classified the conviction as a Class E felony rather than a Class C felony; and in count 3, the trial court incorrectly classified the conviction as a Class C felony rather than a Class B felony). Additionally, in merging the defendant's convictions in counts 1 and 2, the trial court failed to impose a sentence for the merged conviction of count 2. Finally, in count 4, the trial court incorrectly sentenced the defendant for a misdemeanor conviction rather than the felony for which he was found guilty, warranting a new sentencing hearing on the same. Consequently, we remand the case to the trial court for sentencing as to counts 2 and 4 and the entry of corrected and completed judgment forms as to counts 1, 2, 3, and 4.

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

          Terry Lee Dicus, Jr., Savannah, Tennessee, for the appellant, Jonathan Alexander.

          Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General; Matthew F. Stowe, District Attorney General; and Vance Dennis, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams, P.J., and Camille R. McMullen, J., joined.

          OPINION

          J. ROSS DYER, JUDGE

         Facts and Procedural History

         This case arises from the arrest of the defendant during a multi-agency saturation operation performed throughout Hardin County. As part of the operation, officers executed an outstanding arrest warrant against the defendant on April 28, 2017. Subsequent to his arrest, the defendant was indicted for two counts of unlawful possession of a firearm, one count of possession of a Schedule II controlled substance with intent to sell or deliver, one count of possession of unlawful drug paraphernalia, and one count of possession of a firearm during the commission of a dangerous felony. Tenn. Code Ann. §§ 39-17-417; -425; -1307; -1324. Prior to trial, the parties entered an agreed stipulation stating the defendant is a convicted felon "for the sole purpose of determining an element of unlawful possession of a firearm." The State presented the following evidence at trial.

         Drug task force officer Jason Caldwell of the Hardin County Sheriff's Department participated in the arrest of the defendant on April 28, 2017. Pursuant to his probation officer, the defendant lived with his parents in Hardin County, Tennessee at the time of arrest. As Officer Caldwell approached the home, he saw the defendant and another male in the living room just inside the front door. Officer Caldwell secured the defendant, a female, and two other males on the front porch, noting at trial he did not know the names of the three other individuals.

         After securing the scene, Officer Caldwell Mirandized the defendant and conducted a consensual search of the "front portion" of the home where it appeared the defendant lived.[1] During the search, Officer Caldwell saw "male clothing, as well as a pair of boots" and a firearm next to the couch in the living room where the defendant was prior to his arrest. Officer Caldwell also found a "Red Bull can with the powder substance on top of it" on a table six to eight inches from the couch. Both the firearm and the Red Bull can were within five to seven feet from where the defendant stood prior to his arrest. Officer Caldwell explained the lid of the Red Bull can was cut and bent to form a "bowl" to hold the white powder, which was later identified as morphine. According to Officer Caldwell, "individuals who intravenously inject any kind of illicit drugs or prescription drugs, they'll take a spoon, or in this instance, there could be a can. They'll put their substance in it, put a little bit of water to it, and heat it up to inject it in the body." Officer Caldwell also found what appeared to be "a couple of marijuana roaches" during the search. Regarding the firearm, Officer Caldwell learned it belonged to the defendant's father. However, at the time of the defendant's arrest, the firearm was loaded with one round and found next to the couch where the defendant slept. Officer Caldwell stated he did not request DNA or fingerprint analysis for the evidence seized during the search, explaining it was unnecessary to do so based upon his training and experience and the "circumstances that surrounded the incident." All of the items found during the search were entered into evidence.

         During cross examination, Officer Caldwell stated only the defendant was charged with crimes subsequent to the search of his parents' home. Officer Caldwell did not inquire if the defendant had a prescription for morphine, but noted "I was never advised he had a script and for it to be crushed down and done like it was, that's what I'm basing all my evidence off of." Officer Caldwell explained he has "arrested individuals and made cases where they have purchased liquid in a syringe from an individual that's melted narcotics down," but noted he did not find a syringe during the search. However, based upon his experience and training, Officer Caldwell believed the defendant "was going to distribute the morphine to the other three individuals that was (sic) there at the house with him" and stated "[t]hrough my training and experience, there was a significant amount of morphine that is crushed up in that [0].5 grams of white powdered substance there."

         Rachel Strandquist, a special agent forensic scientist with the Drug Chemistry Unit of the Tennessee Bureau of Investigation ("TBI"), analyzed the powdery substance found on the Red Bull can and filed a report regarding the same. Special Agent Strandquist used a gas chromatograph mass spectrometer and an ionization detector instrument to test the substance and explained her findings, as follows: "I was submitted a metal can that had a white chunky powder on the bottom. This I tested, and I identified morphine. It was [0].5 grams was the amount that I scraped off of the can." The State entered a copy of her report into evidence. Upon reviewing the report, Special Agent Strandquist noted "there [was] charring on the inside of the can" and opined "it does appear that someone was trying to smoke it." Regarding how the defendant was likely using the ...


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