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State v. Brown

Court of Criminal Appeals of Tennessee, Nashville

July 10, 2019

STATE OF TENNESSEE
v.
KATRINA LYNETTE BROWN

          Session November 15, 2018

          Appeal from the Circuit Court for Marshall County No. 16-CR-99 Franklin Lee Russell, Judge

         After a bench trial, the Appellant, Katrina Lynette Brown, was found guilty of driving under the influence, violating the implied consent law, possessing .5 grams or more of cocaine with the intent to sell, possessing .5 grams or more of cocaine with the intent to deliver, and a brake light violation. The trial court merged the cocaine possession counts and imposed a total effective sentence of ten years, which was suspended to probation. On appeal, the Appellant contends that the evidence is not sufficient to sustain her conviction of possession of .5 grams or more of cocaine with the intent to sell. Upon review, we affirm the judgment of the trial court.

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

          Robert Dalton, Lewisburg, Tennessee (on appeal), and Michael Patrick Auffinger, Murfreesboro, Tennessee (at trial), for the Appellant, Katrina Lynnette Brown.

          Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel; Robert J. Carter, District Attorney General; and Drew Wright and Joseph Clifford Johnson, Assistant District Attorneys General, for the Appellee, State of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which John Everett Williams, P.J., and Alan E. Glenn, J., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         The Marshall County Grand Jury indicted the Appellant for driving under the influence (DUI), violating the implied consent law, possessing .5 grams or more of cocaine with the intent to sell, possessing .5 grams or more of cocaine with the intent to deliver, and a brake light violation. The charges were the result of a traffic stop that occurred in the early morning of December 18, 2015.

         Corporal Lonnie Cook with the Lewisburg Police Department testified that he had been trained in DUI detection. Around 12:50 a.m. on December 18, 2015, he was driving his patrol car on Water Street when he saw a white Hyundai turn onto Water Street from 2nd Avenue. The vehicle, which was traveling in the opposite direction from Corporal Cook, passed his patrol car then briefly stopped at a stop sign at the intersection of Water Street and 3rd Avenue. The intersection was eighty or one hundred feet from Corporal Cook's patrol car. Corporal Cook looked into his driver's side mirror and noticed that the brake light on the driver's side of the vehicle was not working.

         Corporal Cook made a U-turn, activated his patrol car's blue lights, and pursued the vehicle. When the vehicle stopped, Corporal Cook approached, identified himself, and told the driver, who was the Appellant, the reason for the stop. Corporal Cook asked the Appellant for her driver's license and proof of insurance. The Appellant told Corporal Cook her name but said that she did not have a driver's license and that she thought it was suspended. She never provided proof of insurance. She asked Corporal Cook not to take her to jail and said that the car belonged to her boss, for whom she was running errands.

         Corporal Cook said that during their conversation, he noticed the Appellant's eyes were bloodshot, and he smelled alcohol coming from either the Appellant or her vehicle. He asked the Appellant if she had consumed any alcohol that night, and she responded that "she had a few wine coolers" but that "she was fine."

         Corporal Cook confirmed that the Appellant's driver's license had been suspended, and he learned that the Appellant had active warrants for her arrest. By that time, Officer Clint Newbill had arrived on the scene. Corporal Cook asked the Appellant to step outside and walk to the rear of the vehicle. When she complied, Corporal Cook noticed that she was very unsteady and had to hold on to the car for balance as she walked to the rear of the vehicle. As she walked by Corporal Cook, he smelled alcohol and a strong odor of marijuana. He asked the Appellant if she had any marijuana, and she responded that she did not use drugs. He thought the Appellant seemed nervous. Corporal Cook and Officer Newbill handcuffed the Appellant because of the active warrants and her nervousness.

         Corporal Cook said that the Appellant did not follow his commands and that he had to repeat himself "multiple times." When Corporal Cook asked again if the Appellant had any marijuana, she responded, "Yes, it's in the glove compartment of the car." Officer Newbill went to the car to retrieve the marijuana. The Appellant then turned and started to walk away from Corporal Cook. He had to order her to stop multiple times. Corporal Cook said that the Appellant's hands were cuffed behind her back. As she turned, she tilted her body to the right and reached underneath her shirt. Corporal Cook grabbed the Appellant's arms to stop her, and a pack of Newport cigarettes fell from her shirt. The Appellant said, "There it is, there it is, just take me to jail." Corporal Cook looked inside the pack and saw a yellow bag and a clear bag. The bags contained approximately 2.8 grams of marijuana and approximately 3.7 grams of crack cocaine, respectively. The officers searched the Appellant's car but found no drug paraphernalia.

         Corporal Cook said that after Corporal Amanda Binkley arrived, she took the Appellant to jail. Corporal Cook later went to the jail, told the Appellant that he believed she was under the influence of an intoxicant, read the implied consent form to her, and asked her to perform field sobriety tests. The Appellant refused to perform the field sobriety tests or provide a blood sample. Corporal Cook stated that cash was found on the Appellant's person at the jail, but he did not state the amount.

         Corporal Cook said that he charged the Appellant with driving on a suspended license, DUI, possession of a schedule II substance with the intent to sell, possession of a schedule VI substance, and violation of the implied consent law. He explained that he charged the Appellant with possession of a schedule II substance with the intent to sell because of the amount of crack cocaine in her possession and because no drug paraphernalia was found in her possession. Corporal Cook explained that a person possessing crack cocaine for personal use usually had a "crack pipe, a little glass pipe" for smoking the crack cocaine. He also noted that a person possessing crack cocaine for personal use typically had "just a little piece or two," but the Appellant possessed "quite a large amount."

         On cross-examination, Corporal Cook acknowledged that an aluminum soda can could be used to smoke marijuana, "but they're usually bent and they've got holes punched in them and burn marks on them." When he searched the Appellant's vehicle, he did ...


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