State v. Beard

• Decision Date: 25 June 1991
• Citation: State v. Beard, 818 S.W.2d 376 (Tenn. Crim. App. 1991)
• Parties: STATE of Tennessee, Appellee, v. Morris BEARD, Appellant. 818 S.W.2d 376
• Court: Tennessee Court of Criminal Appeals

Page 376

818 S.W.2d 376

STATE of Tennessee, Appellee, v. Morris BEARD, Appellant.

818 S.W.2d 376

Court of Criminal Appeals of Tennessee at Knoxville.

June 25, 1991.

Permission to Appeal Denied by

Supreme Court Sept. 30, 1991.

James Harvey Stutts, Asst. Public Defender, Sweetwater, J. Curwood Witt, Madisonville, for appellant.

Charles W. Burson, Atty. Gen., Rebecca L. Gundt, Asst. Atty. Gen., Nashville, Chalmers Thompson, Asst. Dist. Atty., Madisonville, for appellee.

OPINION

F. LLOYD TATUM, Special Judge.

The defendant, Morris Beard, and his wife, Melinda Beard, were indicted for possession of more than one-half ounce and less than ten pounds of marijuana with intent to sell, conspiracy to sell marijuana, and the sale and delivery of marijuana.

The defendant, Morris Beard, filed a pre-trial motion to require the State to elect between the possession count of the indictment and the sale count of the indictment. The Trial Court overruled this motion during trial.

After the State rested, the Trial Court granted Melinda Beard's motion for a judgment of acquittal on all counts and granted the defendant's motion for acquittal on the conspiracy count of the indictment. The Trial Judge submitted both the possession and sale counts of the indictment to the jury and the jury returned verdicts finding the defendant guilty on both of these two counts.

At the sentencing hearing, the Trial Judge set aside the guilty verdict for the sale of controlled substance and sentenced the defendant only on the possession count. The defendant was sentenced as a Range 1, Standard offender, to 18 months in the local jail, suspended after serving 12 months.

The defendant presents the following issues for review:

I. Whether the Court erred in not requiring the State to elect to proceed with prosecution for possession of a controlled substance with the intent to sell or the sale of the same controlled substance in that the defendant cannot be prosecuted on both?

II. Whether the Court erred in instructing the jury that these were separate and distinct offenses, either or both of which the defendant could be convicted of, thus allowing the jury to consider more charges against the defendant than they should have?

III. Whether the Court erred in sentencing the defendant on the felony conviction, and subsequently setting aside the misdemeanor conviction for sale of marijuana, when the misdemeanor was the factually greater offense?

IV. Whether the Court improperly considered the sentencing criteria in sentencing the defendant, resulting in an excessive sentence in this cause?

The defendant does not attack the sufficiency of the evidence, but we will briefly outline the facts:

On April 28, 1989, Officer Terry Thomas and an informant went to the defendant's home and discussed purchasing marijuana with the defendant. The defendant produced a bag of marijuana and a small set of hand scales. The defendant weighed the bag which was approximately one-half ounce. He then took some marijuana from a second bag and placed it in the first bag so as to bring the weight of the first bag to one ounce. He sold this bag to Officer Thomas for the sum of $100.00.

The first two issues above-quoted will be disposed of together. The defendant relies heavily on State v. Williams, 623 S.W.2d 121 (Tenn.Crim.App.1981) for the proposition that the Trial Judge should have required the State to elect to prosecute on either the possession count or the sale count of the indictment. In the Williams case, the defendant was convicted of both possession and sale of hydromorphone. We held that the conviction for possession with intent to sell the drug and selling the same drug is prohibited by double jeopardy principles, stating that it was impossible to conceive of a situation where a defendant could sell drugs without being in possession, at least constructively. This court cured the error by reversing and dismissing the conviction for possession with intent to sell hydromorphone and let stand only the conviction for selling hydromorphone. In the case at bar, the Trial Judge has already dismissed the conviction for selling and left standing only the conviction for possessing the controlled substance.

Since these two offenses were based on the same conduct, known to the District Attorney and were within the jurisdiction of the same court, it was mandatory that they both be included in separate counts of the same indictment. Rule 8(a), Tenn.R.Crim.P.

In State v. Johnson, 765 S.W.2d 780 (Tenn.Crim.App.1988), the defendant was convicted of both possessing cocaine with intent to sell and possessing cocaine with intent to deliver. This court held that the dual convictions for possessing the same cocaine constituted double jeopardy. One conviction was reversed and set aside and the other was affirmed.

It was not necessary for the Trial Judge to require the State to elect on which of the counts it would proceed. In State v. Petrone, 170 Tenn. 322, 95 S.W.2d 52 (1936), a defendant was charged with tippling, procuring, receiving, possessing, and transporting the same intoxicating liquors in separate counts of one indictment. In reversing a judgment of the Trial Court sustaining a motion to quash the indictment, the Supreme Court stated:

" 'The joinder of several distinct felonies of the same degree constitutes no ground of demurrer or arrest of judgment, and of course cannot be assigned as error in a reviewing court. Wright v. State, 4 Humph. 194. Separate offenses, punished by different degrees of severity, but differing only in degree and belonging to the same class of crimes, may be united, and often must be to attain the ends of justice; as for example, the offenses of stealing and receiving stolen goods. Hampton v. State, 8 Humph. 69 ; Cash v. State, 10 Humph. 111; Ayrs v. State, 5 Cold. 26.'

In Lawless v. State, 72 Tenn. (4 Lea) 173, 176, 177, the court said:

'But it has long been settled in this State, in accord with authority, that different offenses punished by different degrees of severity, differing only in degree, and belonging to the same class of crimes, may be united, and it is not error in the Court below to refuse to quash for this reason, or to compel the prosecutor to elect on which of the charges he would proceed: Hampton v. State, 8 Humph. 69 ; Cash v. State, 10 Humph. 111. A fortiori, where the offense is the same, the several counts being inserted to meet the uncertainty of the evidence; Boyd v. State, 7 Cold. 77; Wright v. State, 4 Humph. 194; Hall v. State, 3 Lea 559.'

In Tenpenny v. State, 151 Tenn. 669, 270 S.W. 989, it was held that the felony of transporting more than one gallon of intoxicating liquor may be joined in indictment with counts charging misdemeanor of transporting less than one gallon and possessing such liquor." (Emphasis added)

Likewise, this court, in Halquist v. State, 489 S.W.2d 88, 92 (Tenn.Crim.App.1972), stated:

"It is well settled in this State that if the different offenses charged in the different counts grow out of the same transaction, or if they be but different species of the same offense, the several counts may and should be joined in the same indictment. (citations omitted). In Galbreath v. State, 187 Tenn. 669, 216 S.W.2d 689, supra, the Court said: 'The insertion of several counts charging kindred offenses which the proof may develop to be a violation of one statute or another is a common and approved practice, and tends to a much more rapid dispatch of the business of the Court. We do not think such practice is either unfair or prejudicial to defendants.'

And where the several counts of an indictment are based upon the same transaction, the State cannot be required to elect to proceed upon one count or the other. Raine v. State, 143 Tenn. 168, 226 S.W. 189; Lawless v. State, supra. ."

In Raine v. State, 143 Tenn. 168, 226 S.W. 189 (1920), the Supreme Court stated:

"The failure of the trial judge...