State of Tennessee v. Anthony Harville ( 2016 )


Menu:
  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs June 21, 2016
    STATE OF TENNESSEE v. ANTHONY HARVILLE
    Appeal from the Criminal Court for Smith County
    No. 2013-CR-343 John D. Wootten, Jr., Judge
    ___________________________________
    No. M2015-02116-CCA-R3-CD – Filed August 9, 2016
    ___________________________________
    Defendant, Anthony Harville, was convicted of three counts of the sale of a Schedule II
    controlled substance and received an effective sentence of fifteen years. Defendant
    appeals his convictions, challenging the sufficiency of the evidence and his sentence.
    After a review, we affirm the convictions and sentences.
    Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
    TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
    WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
    Comer L. Donnell, District Public Defender; Michael W. Taylor, Assistant Public
    Defender, for the appellant, Anthony Nelson Harville.
    Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
    Attorney General; Tom P. Thompson, District Attorney General; and Jason Lawson,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    In December of 2013, Defendant was indicted on one count of the sale of
    oxycodone and two counts of the sale of methamphetamine after a series of controlled
    buys with a confidential informant.
    In all three transactions at issue herein, Derrick Goolsby acted as the primary
    confidential informant. His girlfriend, Elizabeth Domiano, was the driver of the car used
    for transportation during the drug purchases. Prior to becoming a confidential informant,
    Mr. Goolsby was arrested on methamphetamine-related charges. He agreed to serve as a
    confidential informant in return for a recommendation from the Drug Task Force for
    favorable treatment on his sentence.
    On May 15, 2013, Mr. Goolsby and Ms. Domiano met with the Drug Task Force.
    In preparation for the controlled drug transaction, law enforcement personnel searched
    Mr. Goolsby and his car. He was given $100 for the controlled buy with Defendant. Ms.
    Domiano was the driver of the car because Mr. Goolsby did not have a driver‟s license.
    She was not searched. However, she agreed to confidential informant terms and
    conditions and was subject to search. Both Mr. Goolsby and Ms. Domiano were fitted
    with recording devices.
    The pair met Defendant on Bright Street in South Carthage, near Defendant‟s
    residence. Mr. Gooslsby and Ms. Domiano drove to the meeting location in their car and
    waited to be approached by Defendant. Soon thereafter, Defendant handed Mr. Goolsby
    nine oxycodone pills wrapped in a paper towel in exchange for the money provided by
    the task force. Defendant also arranged a future “ice” purchase. Mr. Goolsby testified
    that ice, “on the street, refers to a different form of methamphetamine generally believed
    to be more pure and it looks like shards of glass or shard of ice, . . . [from] a difference in
    the finishing process and manufacturing it.”
    Mr. Goolsby returned to the meeting location with the Drug Task Force. He was
    searched and turned over the pills provided by Defendant during the controlled buy. In
    exchange for his cooperation, law enforcement personnel paid Mr. Goolsby $100. Ms.
    Domiano did not receive any remuneration for her participation. The controlled buy was
    taped with both video and audio recording devices. The pills were sent to the Tennessee
    Bureau of Investigation (“TBI”) for analysis and were determined to be oxycodone.
    On June 5, 2013, the same procedure was followed. Mr. Goolsby and Ms.
    Domiano were fitted with recording devices and travelled to the prearranged meeting spot
    in the car. During this transaction, Mr. Goolsby purchased methamphetamine in the form
    of ice from Defendant for $100. The drugs were bagged and sent to TBI for analysis.
    The TBI confirmed the weight as .22 grams of methamphetamine.
    Lastly, on June 12, 2015, Mr. Goolsby again purchased ice from Defendant under
    the direction of the Drug Task Force. The transaction was again recorded. The substance
    was confirmed as .14 grams of methamphetamine by the TBI.
    At the conclusion of the jury trial, Defendant was convicted of all three offenses as
    charged in the indictment. The trial court sentenced Defendant to three years for the sale
    of oxycodone and six years on each count of the sale of methamphetamine, to be served
    consecutively, for a total effective sentence of fifteen years. The trial court denied
    Defendant‟s motion for new trial. Defendant filed a timely notice of appeal.
    -2-
    Analysis
    I. Sufficiency of the Evidence
    On appeal Defendant alleges that the evidence was insufficient to support the
    convictions. Specifically, Defendant argues that there was “reasonable doubt that
    [Defendant] committed the offenses” because Ms. Domiano “was never searched before
    or after any of the alleged drug buys,” and she was “capable of concealing drugs and
    money on her person.” Defendant suggests that Ms. Domiano had an incentive to keep
    Mr. Goolsby out of jail because she was pregnant with his child. As a result of this
    possibility, Defendant insists that reasonable doubt exists as to his guilt. The State
    disagrees.
    At the outset, we note that Defendant‟s brief contains a mere one sentence
    statement of the standard of review for the sufficiency of the evidence. Ordinarily,
    “[i]ssues which are not supported by argument, citation to authorities, or appropriate
    references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R.
    10(b). We caution Defendant that following the rules of this Court is the safest way to
    ensure a full resolution of the issues presented on appeal. However meager the brief on
    appeal, we determine Defendant has presented this Court with a brief adequate enough to
    result in a resolution of the issues.
    When a defendant challenges the sufficiency of the evidence, this Court is obliged
    to review that claim according to certain well-settled principles. The relevant question
    the reviewing court must answer is whether any rational trier of fact could have found the
    accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
    App. P. 13(e); Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979). The jury‟s verdict replaces
    the presumption of innocence with one of guilt; therefore, the burden is shifted onto the
    defendant to show that the evidence introduced at trial was insufficient to support such a
    verdict. State v. Reid, 
    91 S.W.3d 247
    , 277 (Tenn. 2002). The prosecution is entitled to
    the “„strongest legitimate view of the evidence and to all reasonable and legitimate
    inferences that may be drawn therefrom.‟” State v. Goodwin, 
    143 S.W.3d 771
    , 775
    (Tenn. 2004) (quoting State v. Smith, 
    24 S.W.3d 274
    , 279 (Tenn. 2000)). It is not the role
    of this Court to reweigh or reevaluate the evidence, nor to substitute our own inferences
    for those drawn from the evidence by the trier of fact. 
    Reid, 91 S.W.3d at 277
    .
    Questions concerning the “„credibility of the witnesses, the weight to be given their
    testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury
    as the trier of fact.‟” State v. Wagner, 
    382 S.W.3d 289
    , 297 (Tenn. 2012) (quoting State
    v. Campbell, 
    245 S.W.3d 331
    , 335 (Tenn. 2008)). “„A guilty verdict by the jury,
    approved by the trial court, accredits the testimony of the witnesses for the State and
    resolves all conflicts in favor of the prosecution‟s theory.‟” 
    Reid, 91 S.W.3d at 277
                                                 -3-
    (quoting State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn. 1997)). This standard of review
    applies whether the conviction is based upon direct evidence, circumstantial evidence, or
    a combination of the two. State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011); State v.
    Hanson, 
    279 S.W.3d 265
    , 275 (Tenn. 2009).
    Viewing the evidence in the light most favorable to the State, the videotape and
    audio recording of the controlled drug transactions entered into evidence at trial bolster
    Mr. Goolsby‟s testimony that Defendant sold him the drugs on all three occasions. Ms.
    Domiano‟s testimony also supported this theory. The jury was aware that Ms. Domiano
    was not individually searched prior to each controlled drug purchase. Moreover, the
    weight and content of the drugs was confirmed by the TBI. The jury obviously
    accredited the testimony of the State‟s witnesses. It is not within our purview to question
    the credibility determination made by the jury. 
    Smith, 24 S.W.3d at 279
    (citing Liakas v.
    State, 
    286 S.W.2d 856
    , 859 (Tenn. 1956). Therefore, we conclude that the evidence was
    sufficient to support the convictions.
    II. Sentencing
    Next, Defendant argues that the trial court improperly enhanced his sentence,
    failed to consider mitigating factors, erred in finding that a sentence of confinement was
    necessary in order to avoid depreciating the seriousness of the offense, and improperly
    failed to order an alternative sentence.
    Initially, we point out that Defendant‟s brief mischaracterizes the standard of
    review with regard to sentencing as de novo. Under current law, when a defendant
    challenges the length or manner of service of a within-range sentence, this Court reviews
    the trial court‟s sentencing decision under an abuse of discretion standard with a
    presumption of reasonableness. State v. Caudle, 
    388 S.W.3d 273
    , 278-79 (Tenn. 2012);
    State v. Bise, 
    380 S.W.3d 682
    , 708 (Tenn. 2012). This presumption applies to “within-
    range sentencing decisions that reflect a proper application of the purposes and principles
    of the Sentencing Act.” 
    Bise, 380 S.W.3d at 707
    . A trial court abuses its discretion in
    sentencing when it “applie[s] an incorrect legal standard, or reache[s] a decision which is
    against logic or reasoning that cause[s] an injustice to the party complaining.” State v.
    Shuck, 
    953 S.W.2d 662
    , 669 (Tenn. 1997) (citing Ballard v. Herzke, 
    924 S.W.2d 652
    ,
    661 (Tenn. 1996)). This deferential standard does not permit an appellate court to
    substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 
    970 S.W.2d 920
    , 927 (Tenn. 1998). The defendant bears the burden of proving that the sentence is
    improper. T.C.A. § 40-35-101, Sentencing Comm‟n Cmts.
    In reaching its decision, the trial court must consider the following factors: (1) the
    evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
    report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
    -4-
    the nature and characteristics of the criminal conduct involved; (5) evidence and
    information offered by the parties on enhancement and mitigating factors; (6) any
    statistical information provided by the administrative office of the courts as to sentencing
    practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
    behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
    103, -210(b); see also 
    Bise, 380 S.W.3d at 697-98
    . Additionally, the sentence imposed
    “should be no greater than that deserved for the offense committed” and also “should be
    the least severe measure necessary to achieve the purposes for which the sentence is
    imposed.” T.C.A. § 40-35-103(2), (4).
    This Court will uphold the sentence “so long as it is within the appropriate range
    and the record demonstrates that the sentence is otherwise in compliance with the
    purposes and principles listed by statute.” 
    Bise, 380 S.W.3d at 709-10
    . The weighing of
    various enhancement and mitigating factors is within the sound discretion of the trial
    court. State v. Carter, 
    254 S.W.3d 335
    , 345 (Tenn. 2008). The misapplication of an
    enhancement or mitigating factor by the trial court “does not invalidate the sentence
    imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
    
    Bise, 380 S.W.3d at 706
    .
    Defendant‟s sentences are within the applicable ranges. Defendant was convicted
    of three Class C felonies as a standard offender. As such, he was subject to a range of
    punishment from three to six years on each offense. See T.C.A. § 40-35-112(a)(3). The
    trial court identified several enhancement factors on the record and considered the
    principles and purposes of the Sentencing Act. The trial court applied enhancement
    factor (1), that Defendant had a previous history of criminal convictions in addition to
    those necessary to establish the appropriate range, because the presentence report
    indicated that Defendant had at least seventeen prior criminal convictions, including one
    felony conviction for the sale of cocaine, going back a period of seventeen years. See 
    id. § 40-35-114(1).
    Additionally, according to the presentence report, Defendant previously
    had a sentence of probation revoked. See 
    id. § 40-35-114(8).
    The trial court also noted
    that Defendant had no hesitation about committing a crime when the risk to human life
    was high because he was dealing in “poison.” See 
    id. § 40-35-114(10).
    The trial court
    did not find that any mitigating factors were applicable, including those proffered by
    defense counsel—remorse and the fact that Defendant had a family. The trial court noted
    that Defendant did not express any remorse for the crimes committed. Lastly, the trial
    court specifically noted that confinement was necessary in order to avoid depreciating the
    seriousness of the offense. Based on the record, the trial court did not abuse its discretion
    in determining the length of Defendant‟s sentences.
    With regard to consecutive sentencing, our supreme court has held that “the abuse
    of discretion standard, accompanied by a presumption of reasonableness, applies to
    consecutive sentencing determinations” “if [the trial court] has provided reasons on the
    -5-
    record establishing at least one of the seven grounds listed in Tennessee Code Annotated
    section 40-35-115(b)[.]” State v. Pollard, 
    432 S.W.3d 851
    , 859-62 (Tenn. 2013). In
    other words, the imposition of consecutive sentencing is subject to the general sentencing
    principles that the overall sentence imposed “should be no greater than that deserved for
    the offense committed” and that it “should be the least severe measure necessary to
    achieve the purposes for which the sentence is imposed[.]” T.C.A. § 40-35-103(2), (4).
    Further, “[s]o long as a trial court properly articulates reasons for ordering consecutive
    sentences, thereby providing a basis for meaningful appellate review, the sentences will
    be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” 
    Pollard, 432 S.W.3d at 862
    (citing Tenn. R. Crim. P. 32(c)(1) (“The order [for consecutive
    sentences] shall specify the reasons for this decision and is reviewable on appeal.”)); see
    also 
    Bise, 380 S.W.3d at 705
    .
    In this case, the trial court determined consecutive sentences were necessary
    because Defendant was a professional criminal, had an extensive criminal history, and
    was a dangerous offender. “Any one of these grounds is a sufficient basis for the
    imposition of consecutive sentences.” 
    Pollard, 432 S.W.3d at 862
    (citing State v.
    Dickson, 
    413 S.W.3d 735
    , 748 (Tenn. 2013)). However, when consecutive sentencing is
    imposed based upon the dangerous offender classification, see T.C.A. § 40-35-115(b)(4),
    the record must also demonstrate that the total sentence is “reasonably related to the
    severity of the offenses” and “necessary in order to protect the public from further
    criminal acts” by the defendant. 
    Pollard, 432 S.W.3d at 863
    ; see also State v. Wilkerson,
    
    905 S.W.2d 933
    , 939 (Tenn. 1995). “The need for the additional findings before
    imposing consecutive sentencing on the basis of the „dangerous offender‟ provision
    arises, in part, from the fact that this category „is the most subjective and hardest to
    apply.‟” State v. Imfeld, 
    70 S.W.3d 698
    , 708 (Tenn. 2002) (quoting State v. Lane, 
    3 S.W.3d 456
    , 461 (Tenn. 1999)).
    In our view, the trial court made the requisite Wilkerson findings to support its
    determination that Defendant is a dangerous offender. The trial court found that
    Defendant‟s behavior of being involved in the sale of methamphetamine was akin to
    “dealing in poison” and “indicates little or no regard for human life and no hesitation
    about committing a crime where the risk to human life is great” because it “affects not
    just the seller, but the customer, and it affects those that make it.” The trial court
    determined that confinement was necessary to protect the public from further criminal
    acts and was reasonably related to the severity of the offense. In addition, the trial court
    named two other statutory reasons for ordering Defendant to serve the sentences
    consecutively—that Defendant was a professional criminal and had an extensive criminal
    history. The trial court commented that the “professional criminal” finding was the
    “weaker of the three factors” but nevertheless determined that Defendant was a
    professional criminal. The trial court did not abuse its discretion in sentencing Defendant
    consecutively.
    -6-
    Lastly, with regard to the denial of an alternative sentence, we acknowledge that
    Defendant in this case was eligible for probation because the actual sentence imposed for
    each conviction was ten years or less and the offenses for which the defendant was
    sentenced are not specifically excluded by statute. T.C.A. § 40-35-303(a); State v.
    Langston, 
    708 S.W.2d 830
    , 832-33 (Tenn. 1986) (concluding that a defendant is eligible
    for probation if each of the sentences is ten years or less regardless of the effective
    sentence). The trial court shall automatically consider probation as a sentencing
    alternative for eligible defendants; however, the defendant bears the burden of proving
    his or her suitability for probation. 
    Id. § 40-35-303(b).
    In addition, “the defendant is not
    automatically entitled to probation as a matter of law.” 
    Id. § 40-35-303(b),
    Sentencing
    Comm‟n Cmts. Rather, the defendant must demonstrate that probation would “„serve the
    ends of justice and the best interest of both the public and the defendant.‟” State v.
    Carter, 
    254 S.W.3d 335
    , 347 (Tenn. 2008) (quoting State v. Housewright, 
    982 S.W.2d 354
    , 357 (Tenn. Crim. App. 1997)).
    When considering probation, the trial court should consider the nature and
    circumstances of the offense, the defendant‟s criminal record, the defendant‟s
    background and social history, the defendant‟s present condition, including physical and
    mental condition, the deterrent effect on the defendant, and the best interests of the
    defendant and the public. See State v. Kendrick, 
    10 S.W.3d 650
    , 656 (Tenn. Crim. App.
    1999) (citing State v. Grear, 
    568 S.W.2d 285
    , 286 (Tenn. 1978)). The principles of
    sentencing also require the sentence to be “no greater than that deserved for the offense
    committed” and “the least severe measure necessary to achieve the purposes for which
    the sentence is imposed.” T.C.A. § 40-35-103(2), (4). In addition, “[t]he potential or
    lack of potential for the rehabilitation or treatment of the defendant should be considered
    in determining the sentence alternative or length of a term to be imposed[,]” and “[t]he
    length of a term of probation may reflect the length of a treatment or rehabilitation
    program in which participation is a condition of the sentence[.]” 
    Id. § 40-35-103(5).
    Moreover, our supreme court has held that truthfulness is a factor which the court may
    consider in deciding whether to grant or deny probation. State v. Bunch, 
    646 S.W.2d 158
    , 160 (Tenn. 1983) (citing State v. Poe, 
    614 S.W.2d 403
    , 404 (Tenn. Crim. App.
    1981)).
    Based upon the pre-sentence report, the trial court found that Defendant had
    seventeen prior offenses. The trial court expressed doubt with regard to Defendant‟s
    ability to be rehabilitated based on the fact that he had been involved in drug treatment
    programs in the past and that they “obviously” did not work. The record shows that the
    trial court considered the relevant sentencing considerations, and Defendant has not
    established that the trial court abused its discretion in denying alternative sentencing or
    “otherwise overc[a]me the presumption of reasonableness afforded sentences [that]
    -7-
    reflect a proper application of the purposes and principles of our statutory scheme.” See
    
    Caudle, 388 S.W.3d at 280
    . Defendant is not entitled to relief.
    Conclusion
    For the foregoing reasons, the judgments of the trial court are affirmed.
    ____________________________________
    TIMOTHY L. EASTER, JUDGE
    -8-