State v. Perez, No. W2004-00980-CCA-R3-CD (TN 5/11/2005), W2004-00980-CCA-R3-CD.

Decision Date11 May 2005
Docket NumberNo. W2004-00980-CCA-R3-CD.,W2004-00980-CCA-R3-CD.
CourtTennessee Supreme Court

Robert Wilson Jones, District Public Defender, and Barry W. Kuhn and Tony N. Brayton, Assistant Public Defenders, for the appellant, Luis Perez.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and J. Robert Carter, Jr., and Valerie L. Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

John Everett Williams, J., delivered the opinion of the court, in which Alan E. Glenn and Robert W. Wedemeyer, JJ., joined.



The defendant appeals his dual convictions for possession of marijuana with intent to sell and with intent to deliver. We affirm the sufficiency of the evidence and the denial of the defendant's motion to suppress. We remand for merger of the offenses as the dual convictions are violative of double jeopardy. Further, we modify the sentence to two years in our de novo review, due to error in failure to make findings of fact in sentencing.

The defendant, Luis Perez, was indicted in a two-count indictment, charging the defendant, in the first count, with unlawful possession of over 4536 grams of marijuana with the intent to sell and, in the second count, with the intent to deliver the same marijuana, in violation of Tennessee Code Annotated section 39-17-417. The defendant's pretrial motion to suppress evidence was denied after a hearing. The defendant was convicted, after a jury trial, on both counts, each a Class D felony. The defendant received a sentence of four years on each count as a standard offender, with the sentences to run concurrently. In addition, a $2500 fine was imposed on each conviction count.

The defendant timely appeals and presents four issues:

(1) that the evidence was insufficient to support the convictions beyond a reasonable doubt;

(2) that the trial court erred in failing to suppress the evidence;

(3) that the trial court erred in its failure to merge the two guilty verdicts into a single conviction; and

(4) that the trial court erred in sentencing the defendant.

Factual Background

On November 18, 2002, the defendant was stopped on I-40 in Memphis for driving sixty-six miles per hour in a fifty-five mile-per-hour zone, as detected by radar. The arresting officer, Chris Jones, a Shelby County officer assigned to the West Tennessee Drug Task Force, stated that he smelled raw marijuana when the defendant rolled his window down. A second officer, in training and riding with Jones, Marco Yzaguierre, also claimed to smell the odor on approaching the vehicle.

The defendant produced a New York driver's license and stated that he lived in California. The defendant told the officers that he was test driving the older model Honda to New York and that the car belonged to a friend. Officer Jones phoned U.S. Customs to check the validity of the defendant's driver's license information. The defendant refused to consent to a vehicle search and was placed in the officer's squad car. Sergeant McCord, a K-9 handler for the West Tennessee Drug Task Force, was called and responded to the scene. The dog alerted to the defendant's vehicle and, when released inside the car, alerted on a green tub in the back seat area. A duffle bag inside the tub contained thirteen large bundles wrapped in cellophane and weighing, in gross, approximately seventeen pounds. Field testing from one bundle revealed the contents to be positive for THC, and this was subsequently confirmed by the TBI laboratory. The remaining bundles were undisturbed and not tested. Upon discovery of the marijuana, the defendant was arrested. After the defendant's arrest, Officer Jones learned that the defendant's driver's license was in revoked status.

Sufficiency of Evidence

In attacking the sufficiency of the evidence to convict, the defendant specifically focuses on the untested twelve bundles introduced as marijuana. The defendant contends that this circumstantial evidence is insufficient to convict, due to the failure to test all bundles and the failure to introduce the weight of the one bundle tested.

In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the State's witnesses and resolves all conflicts in favor of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the State is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Court will not disturb a verdict of guilt due to the sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational trier of fact to find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court's duty to affirm the conviction if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).

Although the evidence of the defendant's guilt is circumstantial in nature, circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). However, in order for this to occur, the circumstantial evidence must be not only consistent with the guilt of the accused but must also be inconsistent with innocence and must exclude every other reasonable theory or hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In addition, "it must establish such a certainty of guilt of the accused as to convince the mind beyond a reasonable doubt that [the defendant] is the one who committed the crime." Id. (quoting Pruitt v. State, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970)).

While following the above guidelines, this Court must remember that the jury decides the weight to be given to circumstantial evidence and "[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury." Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958); see also Gregory, 862 S.W.2d at 577; State v. Coury, 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt, 460 S.W.2d at 391.

Tennessee Code Annotated section 39-17-417 provides, in pertinent part, that it is a criminal offense for a defendant to knowingly "[p]ossess a controlled substance with intent to manufacture, deliver or sell such controlled substance." "It may be inferred from the amount of a controlled substance or substances possessed by an offender, along with other relevant facts surrounding the arrest, that the controlled substance or substances were possessed with the purpose of selling or otherwise dispensing." Id. § 39-17-419.

The jury, in this case, accepted the logical inference that the twelve similarly wrapped bundles, located in the same container as the one tested, contained the same substance, marijuana. This inference, in our view, seems more logical than the likelihood of wrapping twelve innocuous materials to accompany the one bundle of contraband. While there might be some conceivable reason to include "dummy" bundles, such reason remains unfathomable to us. The jury accepted the inference that the quantity of marijuana, along with facts surrounding the arrest, indicated that the defendant possessed the drug for the purpose of selling or otherwise dispensing. The inference is reasonable, and it is not our prerogative to substitute another. Accordingly, we conclude that the evidence is sufficient beyond a reasonable doubt to sustain the convictions.

Suppression of Evidence

The defendant next contends that the trial court erred in denying the defendant's pre-trial motion to suppress. The basis for the defendant's argument is that the arresting officers "could have and should have" obtained a search warrant prior to searching the vehicle. The State maintains that the search was justified in multiple ways, including the officer's detection of the odor of raw marijuana, the indication of drugs by the trained drug detection canine, and the inevitability of discovery due to the defendant's revoked license status.

The findings of fact made by the trial court at the hearing on a motion to suppress are binding upon this Court unless the evidence contained in the record preponderates against them. State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound by the trial court's conclusions of law. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). The application of the law to the facts found by the trial court are questions of law that this Court reviews de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The...

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