State v. Gibson, M2014–00598–SC–R11–CD

• Court: Supreme Court of Tennessee
• Writing for the Court: Sharon G. Lee, J.
• Citation: 506 S.W.3d 450
• Parties: STATE of Tennessee v. Stanley Bernard GIBSON
• Docket Number: No. M2014–00598–SC–R11–CD,M2014–00598–SC–R11–CD
• Decision Date: 16 November 2016

506 S.W.3d 450

STATE of Tennessee
v.
Stanley Bernard GIBSON

No. M2014–00598–SC–R11–CD

Supreme Court of Tennessee, AT NASHVILLE.

April 22, 2016 Session
Filed November 16, 2016

Richard C. Strong, Nashville, Tennessee (on appeal), and Paul J. Walwyn, Madison, Tennessee (at trial), for the appellant, Stanley Bernard Gibson.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; John H. Bledsoe, Senior Counsel; Glenn R. Funk, District Attorney General; and Antoinette Welch and John Zimmerman, Assistant District Attorneys General, for the appellee, State of Tennessee.

Sharon G. Lee, J., delivered the opinion of the court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark and Holly Kirby, JJ., joined.

OPINION

Sharon G. Lee, J.

The primary issue presented is whether the Drug–Free School Zone Act, Tennessee Code Annotated section 39–17–432, applies

506 S.W.3d 452

when a defendant is convicted of facilitation of an offense listed in Tennessee Code Annotated section 39–17–417. The defendant was convicted of facilitation of possession with intent to deliver .5 grams or more of cocaine within 1,000 feet of a school. The trial court applied the Act to increase the defendant's felony classification and to require service of the entire minimum sentence. The Court of Criminal Appeals affirmed the conviction and sentence. State v. Gibson , No. M2014–00598–CCA–R3–CD, 2015 WL 3867567, at *1 (Tenn. Crim. App. June 23, 2015). We granted review to address whether the Act applies to a conviction for facilitation and whether the evidence was sufficient to support the conviction. The State concedes the trial court erred by applying the Act to require service of the entire minimum sentence but argues the Act is a separate criminal offense and supports the higher felony classification. Based on the clear language of the Drug–Free School Zone Act, we hold the Act does not apply to a conviction for facilitation. Therefore, the trial court erred by increasing the felony classification and by requiring service of the entire minimum sentence. Further, we hold the evidence was sufficient to support the conviction for facilitation.

I.

Trial and Conviction

On April 21, 2009, a Davidson County grand jury indicted Stanley Bernard Gibson for the knowing possession with intent to deliver .5 grams or more of cocaine, a Schedule II controlled substance, within 1,000 feet of a school in violation of Tennessee Code Annotated section 39–17–417 and the knowing possession of a firearm with the intent to go armed during the commission of or attempt to commit a dangerous felony in violation of Tennessee Code Annotated section 39–17–1324(a).

When this case was tried August 12–13, 2013, Sergeant Brink Fidler with the Metropolitan Nashville Police Department ("Metro Police") testified that he had been a police officer for fifteen years, worked in the narcotics division for ten years, and served on the Twentieth Judicial District Drug Task Force for five years. On October 31, 2008, he was notified that patrol officers, responding to a burglar alarm call at 128 Cook Drive in Antioch, found there had been a forced entry to the house. No one was at home, but officers discovered over twenty pounds of marijuana in the kitchen pantry and approximately $73,000 in cash in the trunk of a vehicle in the garage.

Further investigation revealed that Fontaine Cabels lived at the Cook Drive house. His clothes and furniture were in the house, and his vehicle was in the garage. The vehicle's registration and other paperwork, including bank statements, found at the Cook Drive house listed 506 Moore Avenue as the address for Mr. Cabels. Officers learned that Tameika Scales and her child lived at the Moore Avenue house and that Mr. Cabels was the father of the unborn child of Ms. Scales's sister. About a month before the incident at the house on Cook Drive, Mr. Cabels had been arrested in Louisiana with seventy to eighty pounds of marijuana.

On November 4, 2008, Metro Police Detective Joseph Simonik, the lead detective on the case, obtained a search warrant for the Moore Avenue house based on facts uncovered in the investigation. Before the search warrant was executed, Sergeant Fidler and Drug Task Force Investigator Isaac Wood conducted surveillance of the house. Sergeant Fidler parked his vehicle across the street so he could see the front door and glass patio door leading to the front porch. Sergeant Fidler and Investigator Wood observed a male, later identified

506 S.W.3d 453

as Mr. Gibson, seated in and also on the arm of a chair placed by the front door. They saw Mr. Gibson open the interior door and go back and forth from the house and the front porch several times. Sergeant Fidler also observed a female, later identified as Ms. Scales, talking with Mr. Gibson in the house. Sergeant Fidler saw her come in and out a few times and then leave in her vehicle.

When the search warrant was executed, Sergeant Fidler and Investigator Wood were the first to enter the house. Mr. Gibson was compliant as he was handcuffed and made to sit on the floor. During a search of the house, officers found two duffel bags on the chair by the front door where Mr. Gibson had been sitting—a blue and black duffel bag on top of the chair and a red and black duffel bag in the seat of the chair. Officers opened the bags and photographed their contents.

The red and black duffel bag contained a .44 Magnum Desert Eagle handgun, a loaded magazine for the handgun, Mr. Gibson's student identification for the International Academy of Design and Technology, garden gloves, some papers, and a notepad. The contents of the blue and black duffel bag consisted of a bag containing 1.4 grams of crack cocaine, a bag containing 7 grams of cocaine, a blue bandana, a .38 Frago Arms semi-automatic handgun, small digital scales, and some men's clothing. Detective Simonik searched Mr. Gibson and found in his pants pocket a small bag containing .04 grams of cocaine, over a hundred dollars, and a blue bandana sticking out of his back pocket. Sergeant Fidler testified that small digital scales, like those found in the blue and black duffel bag, are typically carried by a drug dealer and used to weigh narcotics during transactions. He stated that a cocaine user would usually purchase between .1 to .2 grams of cocaine at a time, known as a "twenty-rock" because it usually costs twenty dollars. The 7 grams of powder cocaine found in the blue and black duffel bag had a street value of $250 to $350, although it could be worth $700 if cooked into crack cocaine and sold to individual users. Sergeant Fidler testified that drug dealers carry weapons to protect their drugs, cash, and assets from rival drug dealers and police. Based on Sergeant Fidler's experience, the blue bandanas found in one of the duffel bags and in Mr. Gibson's pocket were "flags" and signified affiliation with the Crips gang, which is involved in dealing drugs.

No one else was in the house, and Ms. Scales and Mr. Gibson denied ownership of the weapons or drugs. No other drugs, large sums of money, or any other items associated with the drug trade were found in the house. Nothing linking Mr. Cabels to the house was found, and he had not been located by the police at the time of the search. Neither Sergeant Fidler nor Investigator Wood saw Mr. Gibson have any contact with the two duffel bags. No fingerprints were recovered from the weapons. Aside from Mr. Gibson's school identification found in one of the duffel bags and his driver's license found in the back bedroom, officers did not locate paperwork, bills, or mail with Mr. Gibson's name on them at the Moore Avenue house.

Detective Simonik, who had been an officer for fifteen years and also served on the Drug Task Force, testified that he was at the Moore Avenue house when the search warrant was executed. As Ms. Scales returned to the house just as the search began, Detective Simonik detained her outside the house and subsequently took her into the house. In a recorded statement taken by Detective Simonik, Ms. Scales and Mr. Gibson denied knowledge of the drugs and guns found in the duffel bags. Detective Simonik arrested Mr. Gibson and took him into custody.

506 S.W.3d 454

Tennessee Bureau of Investigation Special Agent Denotria Patterson, a forensic chemist, testified that she analyzed the items obtained during the search. She confirmed that the bag in Mr. Gibson's pocket contained .04 grams of cocaine, the large bag found in the blue and black duffel bag contained 7 grams of cocaine, and the smaller bag in the blue and black duffel bag contained 1.4 grams of cocaine base, commonly known as crack cocaine.

David Kline, manager of the Nashville Planning Department's Mapping Division, testified he used Planning Department software to determine that the house at 506 Moore Avenue was within 1,000 feet of Fall Hamilton Elementary School.

Steve Keel, School Security Operations Manager for Metropolitan–Nashville Public Schools, testified that Fall Hamilton Elementary School was in operation when the drugs were found at the house on Moore Avenue.

Mr. Gibson testified in his own defense. At the time of the arrest, Mr. Gibson and...