State v. McKenzie, E2021-00445-CCA-R3-CD

• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
• Writing for the Court: JILL BARTEE AYERS, JUDGE
• Parties: STATE OF TENNESSEE v. JAMES CLARK MCKENZIE
• Docket Number: E2021-00445-CCA-R3-CD
• Decision Date: 23 June 2022

STATE OF TENNESSEE
v.
JAMES CLARK MCKENZIE

No. E2021-00445-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Knoxville

June 23, 2022

Assigned on Briefs May 25, 2022

Appeal from the Criminal Court for Knox County No. 117046 G. Scott Green, Judge.

Defendant, James Clark McKenzie, was convicted by a jury of possession with the intent to sell, deliver, or manufacture more than 0.5 grams of cocaine within 1,000 feet of a drug-free zone, unlawful possession of a firearm by a person previously convicted of a felony drug offense, unlawful possession of a firearm by a person previously convicted of a violent felony, possession of a firearm with the intent to go armed during the commission of a dangerous felony, and tampering with the evidence. The trial court imposed a total effective sentence of fifteen years. On appeal, Defendant contends the evidence is insufficient to support his conviction for possession with the intent to sell more than 0.5 grams of cocaine within a drug-free zone and that the trial court erred in sentencing him under the 2019 version of the Drug-Free School Zone Act. Following our review of the record and the briefs of the parties, we affirm the judgments of the trial court. However, we conclude that the trial court erroneously sentenced Defendant in count two, possession of a firearm by a person with a previous felony drug conviction, and remand for entry of an amended judgment as to that count only.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Criminal Court Affirmed in Part; Reversed in Part; Remanded

J. Liddell Kirk, Madisonville, Tennessee, (on appeal), and Clinton Frazier, Maryville, Tennessee (at trial), for the appellant, James Clark McKenzie.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney General; Charme P. Allen, District Attorney General; and Larry Dillon, Assistant District Attorney General, for the appellee, State of Tennessee.

JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, P.J. and ROBERT H. MONTGOMERY, JR., J., joined.

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OPINION

JILL BARTEE AYERS, JUDGE

Factual and Procedural Background

This case arose when officers of the Knox County Police Department and the Special Operations Squad executed a search warrant of Defendant's residence at 2300 Center Avenue in Knoxville. The search yielded drugs, drug distribution paraphernalia, a semi-automatic rifle with a silencer, ammunition for the rifle and a loaded magazine for another firearm.

A Knox County Grand Jury entered a true bill charging Defendant with possession with the intent to sell, deliver, or manufacture more than 0.5 grams of cocaine within 1,000 feet of a park, a Class B felony; possession of a firearm by a person with a felony drug conviction, a Class C felony; possession of a firearm by a person with a felony crime of violence, a Class B felony; possession with the intent to go armed during the commission of a dangerous felony, to-wit: possession with the intent to sell, deliver, or manufacture cocaine, a Class D felony; and evidence tampering, a Class C felony. Defendant was also charged with three counts of the criminal gang enhancement statute. The trial transcript reflects that after resting its case, the State announced its decision not to proceed on the gang enhancement counts.

Trial -November 9-10, 2020

Donna Roach, a tech office manager for the Knoxville/Knox County Geographic Information System, testified that she prepared two maps with a 1,000 feet buffer around 2300 Center Avenue. The maps were received as an exhibit. Located within the buffer of 2300 Center Avenue was the Walter P. Taylor Recreation Center and the Williams Creek Urban Forest Park. On cross-examination, Ms. Roach acknowledged that the recreation center has since been torn down, but that the park still exists.

Monica Crutcher, superintendent of the Knoxville Parks and Recreation Department, testified that the Williams Creek Urban Forest Park fell under her supervision. Superintendent Crutcher identified the park on one of the maps prepared by Ms. Roach and confirmed the accuracy of the park's location and its existence in May 2019. Ms. Crutcher was aware that the recreation center had been torn down but could not recall when and whether it was still standing on May 28, 2019.

Officer Jacob Wilson of the Knoxville Police Department ("KPD") had worked multiple stints in the Organized Crime Unit where he investigated "street level, mid-level, and upper-level drug crimes[.]" Officer Wilson testified that he received specialized

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training in undercover drug operation from the KPD, the Tennessee Bureau of Investigation ("TBI"), Law Enforcement Training Associates, and the Tennessee Gang Investigators Association, conducted multiple undercover operations with both state and federal law enforcement agencies, and was involved in sixty-three cases which led to the issuance and execution of twenty-five search warrants.

In May 2019, Officer Wilson, with the assistance of a confidential informant, had the residence located at 2300 Center Avenue under surveillance. Based on information obtained from the surveillance, Officer Wilson obtained a warrant to search the residence. The warrant was executed on May 28, 2019, around 1:30 p.m. by Officer Wilson and officers of the Special Operations Squad of the KPD, more commonly referred to as the "SWAT Team." As they approached the residence, Officer Wilson observed Defendant first standing in the threshold of the open front doorway and then fleeing to the interior of the residence. The SWAT team entered the residence and followed Defendant inside the house while Officer Wilson maintained a position outside. Defendant was arrested in the open doorway of the only bathroom in the house. Once Defendant was secured and the residence was cleared of any occupants, Officer Wilson entered the residence and took photographs. The residence was a two-bedroom house. One of the bedrooms was used for storage. The second bedroom appeared to be used as a bedroom and contained photographs of Defendant and men's clothing in the closet.

Officer Wilson identified the items that were seized during the search in a series of photographs which were exhibited to the jury. Among the items were a white powder substance in a plastic bag which tested positive for cocaine in a field test; a black, AR-15 rifle with a loaded 30-round magazine; a .45 caliber loaded magazine for a Smith &Wesson handgun; a black digital scale with powder residue; and a metal measuring spoon with powder residue.

Officer Wilson explained the significance of finding powder residue on the digital scale and the measuring spoon:

That's evidence, in my training and experience, that both of those items have been used as drug distribution paraphernalia. It's common for drug distributors to weigh out quantities of whatever substance that they're selling prior to packaging it or prior to selling it so that they know exactly what weight that they're selling to a customer

Also, the measuring spoon is typically used to measure out various quantities of drugs, including cocaine, whether that - that measurement is being placed into water with baking soda to be made into crack cocaine or measuring out powder itself to be weighed on the scale. So, it's significant that both of

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those had the powdery residue on it to - to show evidence that - that they've been used in the distribution of cocaine.

The measuring spoon and the plastic bag with the white powdery substance were found on the floor near the bathroom where Defendant was taken into custody. The bag with the white powdery substance was later weighed on a digital scale at the KPD Organized Crime Unit office and its gross weight was 15.7 grams. Officer Wilson explained that the amount of the cocaine in the plastic bag suggested a distribution amount because it was large enough to be divided into smaller amounts for sale.

Officer Wilson testified that a number of small empty plastic bags were found in the toilet bowl. He testified that sellers use bags to package drugs for sale. He explained how plastic bags are used differently by a seller and a user:

Typically, when you see large quantities of these baggies, especially when they are empty, it's indicative that this person possesses this paraphernalia with the intent to package some sort of narcotic or some sort of controlled substance to - to sell it. We can find these baggies with someone who has used, but typically it's a single baggie or maybe one or two that have been discarded in a vehicle that contain residue in it from where they've purchased that inside that baggie, used the contents of it, consumed the contents of its, and then discarded it. These all were unused baggies or appeared to be unused baggies in a large quantity.

Based on his experience and training, Officer Wilson opined that the plastic bags were discarded in an attempt to destroy evidence:

It appears that there's some of them that have already made it down the toilet. And actually, when we entered the residence, the - the toilet was running. So, it had just been flushed. So, it's my belief, based upon that and the other drug paraphernalia or drug distribution paraphernalia evidence that's lying in and around the toilet now, that - that there were other substances or other items that were discarded or destroyed by flushing it down the toilet before we made entry and secured the Defendant.

In terms of the rifle and ammunition found in the residence, Officer Wilson testified that the AR-15 rifle was found in the closet of the bedroom which contained photographs of Defendant and men's clothing. The rifle was affixed with a silencer and a bipod and was loaded with a 30-round magazine in its well and a bullet in the chamber. The cartridges in the rifle magazine were...