State of Tennessee v. Daniel H. Jones ( 2011 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT KNOXVILLE
    October 26, 2010 Session
    STATE OF TENNESSEE v. DANIEL H. JONES
    Appeal from the Criminal Court for Sullivan County
    No. S53,124 Robert H. Montgomery, Jr., Judge
    No. E2010-00016-CCA-R3-CD - Filed June 6, 2011
    The Sullivan County Grand Jury charged by presentment Appellant, Daniel H. Jones, with
    possession of .5 gram of cocaine with intent to sell. This charge was the result of the
    execution of a search warrant during which officers arrested five individuals and found
    containers holding rocks of crack cocaine and other drug paraphernalia. After a jury trial
    held on August 26, 28, and 29, 2008, Appellant was convicted as charged. The trial court
    sentenced Appellant to eleven years as a Range I, standard offender. On appeal, Appellant
    argues that the trial court erred in allowing testimony of a prior bad act of Appellant in
    contravention of Rule 404(b) of the Tennessee Rules of Evidence and that the evidence was
    insufficient to support his conviction. After a thorough review of the record, we conclude
    that the trial court did not abuse its discretion in admitting the evidence in question and that
    the evidence was sufficient to support Appellant’s conviction. Therefore, we affirm the
    judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.
    J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
    N ORMA M CG EE O GLE, JJ., joined.
    Gregory W. Francisco, Kingsport, Tennessee, for the appellant, Daniel H. Jones.
    Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
    General; Greeley Wells, District Attorney General; and Kent Chitwood, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    Factual Background
    On October 19, 2005, Officer Sean Chambers observed a residence at 805 East
    Sullivan Street in Kingsport, Tennessee. From this observation, Chambers believed he had
    sufficient probable cause to obtain a search warrant. He successfully obtained a search
    warrant for the residence in question.
    On October 20, 2005, Ms. Lillian Horton saw Appellant on the porch of 805 East
    Sullivan Street. She approached Appellant, who told her he was waiting on Robert Hale to
    arrive. Ms. Horton saw people coming and going from the residence during the time she was
    there. She also saw people sit down and smoke crack while they were there. Ms. Horton saw
    Appellant and three or four individuals go to the kitchen in the rear of the residence. When
    they returned, some of them stayed and smoked crack and the others left the residence. Ms.
    Horton only saw Appellant go to another room with other people. She never saw Mr. Harris
    or Ms. Aikens do that.
    On the date in question, Ms. Aikens was living at 805 East Sullivan Street with Mr.
    Harris. She had been living with Mr. Harris for a couple of months in October 2005. During
    the months she was living there, she saw Appellant a few times a week. Mr. Harris stated
    that at that time, Appellant would come to his residence on a daily basis.
    On October 20, 2005, Officers Steve Hammonds and Kevin Hite, with the Kingsport
    Police Department SWAT team, assisted with the execution of the search warrant obtained
    by Officer Chambers for the residence at 805 East Sullivan Street. Upon their initial
    approach, Officer Hammonds encountered Jon Harris, the resident, on the front porch.
    Officer Hammonds saw Lillian Horton seated on a couch just inside the front door. When
    Officer Hammonds entered the residence, he found Appellant standing in the doorway of a
    bedroom located immediately to the right of the front door.
    Officer Hammonds ordered Appellant to get onto the ground. Appellant refused, and
    Officer Hammonds pulled Appellant onto the ground. Officer Hammonds saw Amanda
    Aiken in the bedroom. Officer Hammonds remained in the living room watching Appellant
    and the two females. The rest of the SWAT team was searching the residence. Officer Hite
    proceeded to the bathroom. He found Robert Hale standing over the toilet. Officer Hite
    immediately placed Mr. Hite on the ground and looked into the toilet. In the toilet, he found
    a plastic baggie containing several “off-colored, off-white colored rocks” that appeared to
    be crack cocaine. Officer Hammonds heard Officer Hite yell that he had found narcotics in
    the toilet bowl.
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    The officers eventually handcuffed everyone in the house and brought them all into
    the living room. Once the occupants of the residence had been secured, Officer Chambers
    entered the house. He first Mirandized the individuals in the living room. He attempted to
    discover who owned the crack that had been found in the toilet. Afterwards, the officers
    began to search the residence, as well as each individual. When the officers searched Mr.
    Harris, they found crack cocaine and $46 in cash. When they searched Ms. Aiken, they
    found a crack pipe.
    The officers began with a search of the living room. In the living room, the officers
    found a razor blade on top of a CD case. Razor blades are often used to cut or chop cocaine.
    In addition to the razor blade, the officers found a rolled cigarette, a pair of hemostats and
    rolling papers, a peach-colored pill, and several handwritten notes. The notes were messages
    stating that someone had gone out to run an errand and would return shortly or the person
    could be found at a certain location. In the bathroom, Officer Chambers obtained the plastic
    baggie that contained crack cocaine. Officers also found a black plastic key case containing
    crack cocaine, $309 in cash, two cell phones, and two sets of keys behind a laundry basket
    in the bathroom. The keys did not belong to Appellant’s vehicle.
    The officers also searched the bedroom. The officers found a piece of crack cocaine
    on top of a Tennessee driver’s handbook, a bag of drug paraphernalia, two bags of
    hypodermic needles, a lighter, crack pipe filters, another razor blade, and a pushrod, which
    is used to push the filters into and out of crack pipes. Officer Chambers also found a Tic Tac
    box containing over twenty-five rocks of crack cocaine under the mattress of the bed.
    Officer Chambers also found a small bottle containing one rock of crack cocaine under the
    mattress and a tin in the pocket of a shirt in a closet containing three or four rocks of crack
    cocaine.
    Officer Chambers testified at trial that the residence in question did not have
    electricity. The only light was in the living room from a single lamp which was connected
    to an extension cord that had been run from another building. In addition, the officers did
    not locate any food in the residence.
    After completing the search of the residence, the individuals found in the house were
    transported to the police station. Officer Chambers interviewed Appellant. Appellant gave
    the following statement, “Jon Harris is my cousin. I visit him daily at his apartment on East
    Sullivan Street. I do not smoke crack cocaine nor do I sell crack cocaine. That is my
    statement.”
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    At trial, Officer Chambers testified that the number of the rocks of crack cocaine
    contained in the Tic Tac box was more than a typical user would have in their possession.
    Ms. Aikens testified at trial about the day in question. She stated that she was on the
    bed smoking crack when the officers arrived. She had purchased the crack from Appellant
    who gave her the cocaine from a Tic Tac box he kept in his pants pocket. When the officers
    arrived, Appellant placed the Tic Tac box under the mattress, and Ms. Aikens threw her
    cocaine across the room. Ms. Aikens stated that the cocaine found in the baggie in the
    bathroom belonged to Mr. Hale. The cocaine, driver’s handbook, razor blade in the
    bedroom, the bag with drug paraphernalia, and the bottle containing crack cocaine belonged
    to her. The Tic Tac box containing a large amount of cocaine belonged to Appellant. Ms.
    Aikens also stated that about two weeks before October 20, 2005, she saw Appellant with
    a Tic Tac box with cocaine in it. She saw him sell the cocaine in the Tic Tac box in
    exchange for money.
    Mr. Harris stated that he had bought the rock of crack cocaine from Appellant. He
    said that Appellant kept his crack cocaine in a Tic Tac box and that Appellant did this
    frequently. Mr. Harris also testified that he had never seen Appellant actually use crack
    cocaine.
    ANALYSIS
    On appeal, Appellant argues that “the Trial Court erred in allowing testimony of the
    prior bad act of the Defendant having previously possessed cocaine in a Tic Tac box into
    evidence in this Trial for the purpose of corroborating otherwise uncorroborated co-
    defendant/accomplice testimony.” Furthermore, Appellant argues that there was insufficient
    evidence to support his conviction without the wrongfully admitted evidence.
    Prior Bad Acts
    As we begin our analysis, we note well-established precedent providing “that trial
    courts have broad discretion in determining the admissibility of evidence, and their rulings
    will not be reversed absent an abuse of that discretion.” State v. McLeod, 
    937 S.W.2d 867
    ,
    871 (Tenn. 1996). The general rule is that evidence of a defendant’s prior conduct is
    inadmissible, especially when previous crimes or acts are of the same character as the
    charged offense, because such evidence is irrelevant and “invites the finder of fact to infer
    guilt from propensity.” State v. Hallock, 
    875 S.W.2d 285
    , 290 (Tenn. Crim. App. 1993).
    Tennessee Rule of Evidence 404(b) permits the admission of evidence of prior conduct if the
    evidence of other acts is relevant to a litigated issue such as identity, intent, or rebuttal of
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    accident or mistake, and the probative value outweighs the danger of unfair prejudice. Tenn.
    R. Evid. 404(b) Advisory Comm’n Cmts.; see State v. Parton, 
    694 S.W.2d 299
    , 303 (Tenn.
    1985); State v. Hooten, 
    735 S.W.2d 823
    , 824 (Tenn. Crim. App. 1987). However,
    “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
    person in order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b).
    Before admitting evidence under Rule 404(b), the rule provides that (1) upon request, the
    court must hold a hearing outside the jury’s presence; (2) the court must determine that the
    evidence is probative on a material issue and must, if requested, state on the record the
    material issue and the reasons for admitting or excluding the evidence; (3) the court must find
    proof of the other crime, wrong, or act to be clear and convincing; and (4) the court must
    exclude the evidence if the danger of unfair prejudice outweighs its probative value. Tenn.
    R. Evid. 404(b).
    The rationale underlying Rule 404(b)’s exclusion of evidence of a defendant’s prior
    bad acts is that admission of such evidence carries with it the inherent risk of the jury
    convicting the defendant of a crime based upon his bad character or propensity to commit a
    crime, rather than the conviction resting upon the strength of the evidence. State v. Rickman,
    
    876 S.W.2d 824
    , 828 (Tenn. 1994). The risk is greater when the defendant’s prior bad acts
    are similar to the crime for which the defendant is on trial. Id.; see also State v. McCary, 
    922 S.W.2d 511
    , 514 (Tenn. 1996).
    At a hearing held prior to trial, Appellant made an oral motion in limine to have a
    portion of the testimony of Officer Sean Chambers excluded from trial. The testimony in
    question concerned Appellant’s arrest two months before the date in question. During that
    arrest, Officer Chambers found Appellant in possession of a Tic Tac box containing several
    rocks of crack cocaine. After hearing argument from both sides, the trial court ruled that
    Officer Chambers’s testimony regarding Appellant’s prior possession of a Tic Tac box
    containing cocaine was not admissible because the probative value was outweighed by the
    danger of unfair prejudice.
    During the trial, the trial court discussed the inclusion of the names of the co-
    defendants, Mr. Harris, Ms. Horton, Ms. Aiken, and Mr. Hale, in the jury instruction in
    connection with the definition of accomplice. The trial court stated that the determination
    as to who would be considered an accomplice would be up to the jury. The State brought up
    that Ms. Horton, Ms. Aikens, and Mr. Harris were witnesses at trial for the State, and if they
    were determined to be accomplices additional corroborating evidence would be necessary
    to corroborate their testimony. The State argued that Officer Chambers’s testimony
    regarding Appellant’s prior possession of the Tic Tac box should be admitted to corroborate
    the testimony of the potential accomplices. The trial court held a jury-out hearing on the
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    issue. At the conclusion of the hearing, the trial court determined that the probative value
    outweighed the danger of unfair prejudice. The trial court’s findings are as follows:
    [B]oth Mr. Harris, Ms. Aikens as well as Ms. Horton, because they were all
    three — they testified they were all in the house when this occurred; because
    the drugs were not found on anybody who they belong to is [obviously] a
    relevant issue in this case. We also, though, have a situation, too, where we
    have, and under the accomplice theory then accomplice testimony cannot be
    corroborated by another accomplice. And assuming the jury found all three of
    those people to be accomplices, then there would be — because that’s the only
    people — only individuals’ testimony that it belongs to the defendant. That
    would be essentially the end of the State’s case. Now, I previously ruled with
    regard to the issue of their seeing him with a Tic-Tac box in the period of time
    two weeks before this occurred because I found that the relevance of that and
    the probative value outweighed the danger of unfair prejudice and what we
    also have, based upon the testimony that I previously heard in the suppression
    hearing was, is that two weeks — within two months prior to this event the
    defendant was found [with a Tic Tac box containing rocks of crack cocaine.]
    ....
    And because of the Tic-Tac box I find that that is relevant corroborative
    evidence and so the issue that I have to decide is whether the probative value
    is outweighed by the danger of unfair prejudice. And of course I’ve already
    let in the information with regard to the Tic-Tac box was within two weeks
    and give a cautionary instruction to the jury about that and because of the fact
    that we’re dealing with an issue of accomplices and accomplice’s [sic]
    testimony in this — the Tic-Tac box on the defendant. Now what was the
    weight on that one? Do you recall, General?
    [Appellant’s counsel]: The weight of the — exactly, .5 grams according
    to the lab result.
    The Court: Does it say the number of rocks, do you recall?
    [Assistant District Attorney General]: Judge, it doesn’t, it just says .5
    gram.
    ....
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    [Assistant District Attorney]: . . . Judge, the officer’s note says several
    rocks. He did not count them out.
    The Court: Well, I find that that amount and the fact that it was several,
    I find that the probative value is not outweighed by the danger of unfair
    prejudice for the purpose of the use — solely for the corroboration of the
    testimony of people that may end up determined to be accomplices.
    Officer Chambers was recalled to the witness stand. He testified that he saw
    Appellant on August 29, 2005. On that date, Officer Chambers searched Appellant and
    found a Tic Tac box containing what appeared to be crack cocaine. Officer Chambers said
    that the Tic Tac boxes he found on August 29th and during the search in question “both had
    a bottom layer of Kleenex that was packed inside the box with tan colored rocks laying on
    top of that.” Officer Chambers stated that the Tic Tac box found on August 29 th contained
    more than one rock of crack cocaine.
    The record demonstrates that the trial court met the requirements under Rule 404(b)
    before determining that Officer Chambers’s testimony was admissible. Our determination
    on appeal is whether the trial court abused its discretion in admitting the testimony. As stated
    above, in the jury-out hearing, the trial court determined that Officer Chambers’s testimony
    regarding Appellant’s prior possession of a Tic Tac box containing rocks of crack cocaine
    was admissible in part because it corroborated the testimony of the other witnesses at trial.
    In State v. Caughron, 
    855 S.W.2d 526
     (Tenn. 1993), our supreme court addressed a
    similar situation. In Caughron, the defendant was convicted of first degree premeditated
    murder. Caughron, 855 S.W.2d at 530. The accomplice testified that the defendant beat the
    victim with a pool stick, tied up the victim with sheer material the defendant kept in his car,
    and after attempting to have intercourse with the victim, slapped the victim on her buttocks.
    Id. at 531. Another witness, Jimmy Huskey, testified that the defendant owned a pool stick
    similar to the one described by the accomplice, that the defendant kept a light-colored, sheer
    table cloth in his car, and that the defendant had told him that slapping women on the
    buttocks “really turned him on.” Id. at 532. On appeal, the defendant argued that the
    evidence about the pool stick, the sheer material, and his propensity to slap women on the
    buttocks should not have been allowed into evidence based upon Rule 404(b) of the
    Tennessee Rules of Evidence. Our supreme court held that the evidence was admissible “to
    connect Defendant to this crime and corroborate the accomplice’s testimony.” Id. at 538.
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    The same can be said about Officer Chambers’s testimony regarding the Tic Tac box.
    His testimony about Appellant’s prior possession of the Tic Tac box is necessary to answer
    the question who owned the Tic Tac box found under the mattress, i.e. to connect Appellant
    to the crime, and to corroborate the testimony of the other witnesses who could be considered
    accomplices. We conclude that the evidence was admitted for purposes other than to prove
    character, which is prohibited by the rule in question. Therefore, the trial court did not abuse
    its discretion in allowing the testimony of Officer Chambers regarding Appellant’s prior
    possession of a Tic Tac box configured in an identical manner to that found under the
    mattress on the date of the offense which is the subject of this appeal.
    Sufficiency of the Evidence
    Appellant also argues that there was insufficient evidence to support his conviction
    because the evidence of his prior possession of the Tic Tac box should have been excluded.
    As stated above, we have determined that the trial court did not abuse its discretion in
    allowing the testimony in question. Appellant argues that the testimony in question did not
    sufficiently corroborate the testimony of the other three witnesses who could have been
    considered accomplices.
    When a defendant challenges the sufficiency of the evidence, this Court is obliged to
    review that claim according to certain well-settled principles. A verdict of guilty, rendered
    by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
    and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 
    875 S.W.2d 253
    , 259 (Tenn. 1994); State v. Harris, 
    839 S.W.2d 54
    , 75 (Tenn. 1992). Thus, although the
    accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
    removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 
    639 S.W.2d 913
    , 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
    demonstrate the insufficiency of the convicting evidence. Id. 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); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
    strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
    that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
    precluded from re-weighing or reconsidering the evidence when evaluating the convicting
    proof. State v. Morgan, 
    929 S.W.2d 380
    , 383 (Tenn. Crim. App. 1996); State v. Matthews,
    
    805 S.W.2d 776
    , 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
    “inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
    805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
    weight and value to be given to evidence, as well as all factual issues raised by such
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    evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 
    788 S.W.2d 559
    , 561 (Tenn. 1990).
    It is true that convictions may not be based solely upon the uncorroborated testimony
    of accomplices. See State v. Robinson, 
    971 S.W.2d 30
    , 42 (Tenn. Crim. App. 1997).
    However, Tennessee law requires only a modicum of evidence in order to sufficiently
    corroborate such testimony. See State v. Copeland, 
    677 S.W.2d 471
    , 475 (Tenn. Crim. App.
    1984). More specifically, precedent provides that:
    The rule of corroboration as applied and used in this State is that there must be
    some evidence independent of the testimony of the accomplice. The
    corroborating evidence must connect, or tend to connect the defendant with the
    commission of the crime charged; and, furthermore, the tendency of the
    corroborative evidence to connect the defendant must be independent of any
    testimony of the accomplice. The corroborative evidence must[,] of its own
    force, independently of the accomplice’s testimony, tend to connect the
    defendant with the commission of the crime.
    State v. Griffis, 
    964 S.W.2d 577
    , 588–89 (Tenn. Crim. App. 1997) (quoting Sherrill v. State,
    
    321 S.W.2d 811
    , 815 (Tenn. 1959)). In addition, our courts have stated that:
    The evidence corroborating the testimony of an accomplice may consist of
    direct evidence, circumstantial evidence, or a combination of direct and
    circumstantial evidence. The quantum of evidence necessary to corroborate
    an accomplice’s testimony is not required to be sufficient enough to support
    the accused’s conviction independent of the accomplice’s testimony nor is it
    required to extend to every portion of the accomplice’s testimony. To the
    contrary, only slight circumstances are required to corroborate an accomplice’s
    testimony. The corroborating evidence is sufficient if it connects the accused
    with the crime in question.
    Id. at 589 (footnotes omitted). Furthermore, we note that the question of whether an
    accomplice’s testimony has been sufficiently corroborated is for the jury to determine. See
    id. at 588; State v. Maddox, 
    957 S.W.2d 547
    , 554 (Tenn. Crim. App. 1997).
    -9-
    Officer Chambers testified that he found a Tic Tac box with Kleenex layered in the
    bottom cushioning several rocks of crack cocaine. This occurred within two months of the
    search of the East Sullivan residence during which a Tic Tac box with Kleenex layered in the
    bottom and containing several rock of crack cocaine was found under a mattress. Ms. Aikens
    testified that she was in the bedroom smoking crack that had been given to her by Appellant
    from a Tic Tac box he kept in his pants pocket. She stated that she had seen Appellant with
    a Tic Tac box containing cocaine about two weeks before the search. On the earlier
    occasion, she saw Appellant sell crack cocaine he kept in the Tic Tac box for money. Mr.
    Harris also testified that Appellant kept his crack cocaine in a Tic Tac box.
    We conclude that Officer Chambers’s testimony is sufficient to corroborate this
    testimony. The earlier possession of the Tic Tac box connects Appellant with the Tic Tac
    box found in the residence during the search. See Griffis, 964 S.W.2d at 588–89. Clearly,
    the jury concluded that Officer Chambers’s testimony was sufficient to corroborate the other
    testimony. Therefore, we find that the evidence is sufficient to support Appellant’s
    conviction.
    CONCLUSION
    For the foregoing reasons, we affirm the judgment of the trial court.
    ___________________________________
    JERRY L. SMITH, JUDGE
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