State v. Dykes
| Decision Date | 27 September 1990 |
| Docket Number | No. 129,129 |
| Citation | 803 S.W.2d 250 |
| Parties | STATE of Tennessee, Appellee, v. Frank "Bud" DYKES, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Charles W. Burson, Atty. Gen. & Reporter, Bettye Springfield-Carter, Asst. Atty. Gen., Nashville, C. Berkeley Bell, Dist. Atty. Gen., Greeneville, Doug Godbee, Asst. Dist. Atty. Gen., Rogersville, for appellee.
B.C. McInturff, Kingsport, for appellant.
The appellant, Bud Dykes, was convicted of selling more than one-half ounce of marijuana by a jury of his peers. The trial judge, finding the appellant to be a Range I standard offender, sentenced the appellant to pay a fine of $5,000 and serve one year and six months in the local jail.
The appellant raises five issues for our review. He contends that the evidence contained in the record is insufficient to sustain his conviction. He further contends that the trial judge erred in overruling his motion to dismiss, denying his motion for a continuance, refusing to suspend his sentence, and the sentence imposed by the trial judge is excessive.
On the afternoon of January 26, 1988, an agent of the Tennessee Bureau of Investigation, along with a cooperating individual, visited the home of the appellant. The agent gave the cooperating individual $30. This person subsequently entered the appellant's residence. A few minutes later the appellant exited the residence, got into a pick-up truck, crossed the roadway in front of his home, and drove into an open field. A few minutes later, the appellant returned and handed the agent a bag containing a green, leafy substance. The agent asked the appellant if he could purchase a second bag for $30. The appellant agreed to make the sale. He again drove into the field across from his residence. When he returned, he handed the agent a second bag containing a green, leafy substance.
The forensic chemist who tested the contents of the two bags testified that the green, leafy substance contained in the two bags was marijuana. Each bag contained approximately one ounce of marijuana.
The appellant, a self-employed logger, attempted to establish an alibi defense. He contended that he loaded his truck with logs on the date in question, and, thereafter, delivered the logs to a sawmill in Greene County. Both he and his brother testified that he arrived home between 4:30 p.m. and 5:00 p.m. on the date in question. He introduced two receipts from a sawmill dated January 25, 1988, and January 26, 1988. He emphatically denied selling marijuana to the agent, and he further denied owning a pick-up truck like the one described by the agent.
Several witnesses testified in support of the appellant's defense. However, their testimony was tentative at best.
The State presented the owner of the sawmill in rebuttal. He related that the appellant had contacted him approximately a month prior to the trial date. The appellant told him that he had lost his receipts for January 25, 1988, and January 26, 1988. Although the witness could not find any records to establish that he had purchased logs from the appellant on these dates, he nevertheless prepared the receipts that the appellant introduced into evidence.
When an accused challenges the sufficiency of the convicting evidence, this Court must review the record to determine if the evidence adduced at the trial is sufficient "to support the finding by the trier of fact of guilt beyond a reasonable doubt." 1 This rule is applicable to findings of guilt based upon direct evidence, circumstantial evidence, or direct and circumstantial evidence. 2
In determining the sufficiency of the evidence, we do not reweigh or reevaluate the evidence. 3 Nor may we substitute our inferences for those drawn by the trier of fact from circumstantial evidence. 4 To the contrary, we are required to afford the State of Tennessee the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. 5
Questions concerning the credibility of witnesses, the weight and value to be given the evidence as well as all factual issues raised by the evidence are resolved by the trier of fact, not this Court. 6 In State v. Grace 7 our Supreme Court said: "A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of the State." 8
Since a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, 9 the appellant has the burden in this Court of illustrating why the evidence contained in the record is insufficient to support the verdict returned by the trier of fact. 10 This Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the facts contained in the record, and any inferences which may be drawn from the facts, are insufficient, as a matter of law, for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. 11
There is sufficient evidence contained in the record from which a rational trier of fact can conclude that the appellant is guilty of selling more than one-half ounce of marijuana to the TBI agent beyond a reasonable doubt. 12 The jury obviously did not believe the appellant or his witnesses as it rejected his alibi defense.
This issue is without merit.
The appellant stated in his motion for a new trial as well as in his brief: "The Court erred in overruling his Motion to Dismiss." This issue does not conform to Rule 27(a)(4), Tennessee Rules of Appellate Procedure, and, as a result, it has been waived. The issue is too broad in scope. 13 As the Court of Appeals said in Tortorich v. Erickson: "To answer such a query requires a degree of clairvoyance with which this Court is not possessed." 14
In State v. Gauldin, supra, the appellant raised an issue as to "[w]hether the instructions given by the Court to the Jury were unclear and confusing." This Court ruled that the issue was waived because it was too broad in scope. In State v. King, supra, issues to the effect that "[t]he court erred in the charges it charged the jury as to the applicable law in this case" and "[t]he District Attorney committed error in his argument to the jury," were held to be too broad. Consequently, the issues were not considered by this Court. The same result was reached in State v. McKinney, supra. In State v. Newsome, supra, one appellant contended that "during voir dire the assistant district attorney general prefaced one question or remark with some statement having to do with the kind of favors that rape defendants and/or their attorneys would or would not want, such as young women," while another appellant contended that "the State through its assistant district attorney [general] made comments that implied that counsel for the defendant was using trickery in an effort to select men or exclude all women from the jury to hear the case." This Court commented that "[t]hese vague conclusory allegations fall far short of presenting issues for review by this Court." 15 In summary, the 16
We also note that the transcript of the hearing on the motion to dismiss is not adequate to support appellate review of this issue.
The resolution of this issue hinges upon numerous dates and events. However, the appellant did not offer any evidence in support of his motion, and there is no stipulation apparent on the face of the record. The hearing consisted of the statements and arguments of counsel regarding this issue. It must be remembered that allegations contained in pleadings 17 and statements made by counsel during a hearing or a trial 18 are not evidence. The same is true with regard to the recitation of facts and argument contained in a brief submitted to this Court. 19
We opt to consider this issue. Of course, our decision will be limited to the facts outlined by counsel during the presentation of the motion.
It appears that the transaction in question was part of a regional undercover operation which was established to investigate the sale of illicit drugs. The indictment was returned after the investigation was terminated. The sale of marijuana to the T.B.I. agent is alleged to have occurred on January 26, 1988. The indictment was returned on January 5, 1989. A capias was subsequently issued for the appellant's arrest.
On the 22nd day of September, 1989, the appellant filed a motion to dismiss the prosecution. The motion alleged a deprivation of the right to a speedy trial. The trial judge, noting that the motion was filed approximately three (3) months after the return of the indictment, dismissed the motion.
Delay between the commission of an offense and the commencement of adversarial proceedings does not violate an accused's constitutional right to a speedy trial. 20 However, such a "delay may occur in such a manner that the defendant's Fifth Amendment right to due process--in contrast to the Sixth Amendment right to speedy trial--is violated." 21 In United States v. Marion, supra, the United States Supreme Court said: "[T]he Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the preindictment delay ... caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 22 This Court recognized the rule articulated in Marion in Halquist v. State. 23 In Halquist this Court said: "While there is no constitutional right to be arrested, ... courts have recognized that an unreasonable delay between the commission of the offense and the arrest may violate the defendant's constitutional...
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State v. Cannon
...direct and circumstantial evidence. State v. Pendergrass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990) ). In the absence of direct evidence, a criminal offense may be established exclusively by circumstantial evidence. D......
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State v. Gilley
...the Tennessee Constitution. See U.S. Const. amends. V, XIV; Tenn. Const. art. 1, § 8, 9; Gray, 917 S.W.2d at 673. In State v. Dykes, 803 S.W.2d 250 (Tenn. Crim.App.1990), this court, relying upon United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), stated that "[b]efo......
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State v. Hernandez
...of the delay, and (c) the State caused the delay in order to gain tactical advantage over or to harass the accused.State v. Dykes, 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990); see State v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997); United States v. Marion, 404 W. S. 307 (1971). Prejudice to a......
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State v. Griffis
...at 82; Roberts, 755 S.W.2d at 836.58 Richardson, 875 S.W.2d at 674; Oody, 823 S.W.2d at 558-59; Roberts, 755 S.W.2d at 836.59 State v. Dykes, 803 S.W.2d 250, 257 (Tenn.Crim.App.), per. app. denied (Tenn.1990); State v. Seals, 735 S.W.2d 849, 853 (Tenn.Crim.App.1987).60 Dykes, 803 S.W.2d at ......