State of Tennessee v. Jason R. McCallum ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs March 1, 2011
STATE OF TENNESSEE v. JASON R. McCALLUM
Direct Appeal from the Circuit Court for Dyer County
No. 09-CR-142 Lee Moore, Judge
No. W2010-01075-CCA-R3-CD - Filed May 5, 2011
The defendant, Jason R. McCallum, was convicted by a Dyer County Circuit Court jury of
the sale of more than 0.5 grams of a Schedule II controlled substance, methamphetamine,
within 1000 feet of a school, a Class A felony. He was sentenced to eighteen years as a
Range I offender. On appeal, he challenges the sufficiency of the convicting evidence.
After review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and C AMILLE R. M CM ULLEN, JJ., joined.
James E. Lanier, District Public Defender; and Patrick McGill, Assistant Public Defender,
for the appellant, Jason R. McCallum.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Renee Creasy, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The case relates to the defendant’s arrest for the sale of methamphetamine in a drug-
free school zone. At his trial, Sergeant Todd Thayer with the Dyersburg Police Department
testified that he worked in the Narcotics Unit and that he used confidential informants to
build cases against those who sold drugs. Sergeant Thayer described the procedures the unit
used to develop and work with confidential informants and explained how controlled drug
buys were conducted.
Sergeant Thayer testified that the informant used in the defendant’s case was an
individual Sergeant Thayer had arrested for selling cocaine and who agreed to work with the
police to avoid prosecution on drug-related charges pending against him. He had worked
as a confidential informant for over a year and had “made more than fifty undercover cases
. . . probably closer to 60, 70 cases.”
Sergeant Thayer testified that in October 2008, the informant called and told him that
he had arranged to buy $200 worth of methamphetamine from the defendant. Sergeant
Thayer met with the informant and placed an audio transmitter and video recorder on his
person and supplied him with the “buy money.” The informant’s person and vehicle were
searched to make sure he had no other money, illegal narcotics, or weapons in his
possession. The informant then made several calls to the defendant’s number, and
eventually the defendant called back and the call was recorded. The officers and the
informant left their meeting spot, with the officers driving behind the informant in an
undercover car. The informant drove to the defendant’s residence on East College Street
in Newbern, and the officers parked out-of-sight across the street where they listened to the
transaction over the audio equipment.
Sergeant Thayer testified that after the transaction was completed, the officers met
the informant at the meeting location and the informant turned over the methamphetamine.
The informant’s person and vehicle were also searched again. Sergeant Thayer identified
the evidence package that contained the methamphetamine he recovered from the informant
on October 14, 2008. Sergeant Thayer stated that after the defendant was arrested, he and
Investigator Chris Gorman met with the defendant and his attorney at the Dyer County
Sheriff’s Department, and the defendant “admitted to selling the substance to [the informant]
on that date.”
On cross-examination, Sergeant Thayer acknowledged that during his meeting with
the defendant and the defendant’s counsel, the defendant insisted that “the stuff [he] sold
[the informant] wasn’t meth.” Sergeant Thayer acknowledged that he had never arrested an
African-American for making methamphetamine, but officers had “bought meth from
several African[-]Americans . . . in undercover buys.” Sergeant Thayer stated that the
informant’s prior drug charges were cocaine-related and not methamphetamine-related.
Thomas Langford, a property evidence technician/investigator with the Dyersburg
Police Department, testified that he handled the evidence in this case. He established the
chain of custody, including his removing the evidence from the storage locker and taking
it to the Tennessee Bureau of Investigation (“TBI”) Lab in Memphis. After the evidence
was returned from the TBI Lab, Langford opened the evidence package in the presence of
an investigator from the public defender’s office to retrieve a sample to mail to a private lab
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for independent testing. On cross-examination, Langford testified that it was not routine to
have independent testing done, and, in fact, this was “the first time [he had] seen it done.”
Investigator Chris Gorman with the Dyer County Sheriff’s Department testified that
he assisted Sergeant Thayer with the defendant’s case. Investigator Gorman stated that he
met with the informant prior to the transaction and set up the monitoring equipment in the
informant’s vehicle. He also searched the informant’s vehicle beforehand to ensure that no
contraband or money was present. After the transaction had been completed, Investigator
Gorman searched the informant’s vehicle again and removed the monitoring equipment.
Investigator Gorman field-tested the substance once he and Sergeant Thayer returned to the
police station, and “[i]t came back positive for methamphetamine.” On cross-examination,
Investigator Gorman acknowledged that during the meeting with the defendant and his
counsel, the defendant insisted that the substance he sold “was not real.”
The confidential informant testified about his criminal background and his decision
to work as an informant. He knew the defendant “briefly through school” and recalled that,
sometime in October 2008, he “bumped into [the defendant] at a store and [they] exchanged
conversation.” During this conversation, the defendant asked the informant if he could get
him some cocaine and informed the informant that “he messed with meth . . . if [they] could
trade out[.]” The defendant then gave the informant his phone number.
On October 14, 2008, the defendant informed the informant that “he was running
short and if [the informant] wanted . . . what . . . [they] had talked about then [he] probably
needed to come get it.” The defendant told the informant that he had “an eight ball,” or
“[t]hree grams,” of methamphetamine, but that “he was running short and it wasn’t a whole
eight ball.” After this conversation, the informant contacted Sergeant Thayer and
Investigator Gorman and met with them to prepare for the drug buy from the defendant.
The informant testified that he called the defendant while in the officers’ presence,
but the defendant did not answer his phone. However, the defendant called the informant
back, and the informant “asked him was he still, was he ready for me. And he replied yes
and we was to go do business.” The officers recorded the conversation, and the audio was
played for the jury.
After the phone call, the informant went to 117 College Street in Newbern, and the
defendant approached the passenger’s side of his vehicle and “handed [the informant] the
meth and [the informant] handed [the defendant] $200.” The informant then returned to the
“meeting spot” where he met the officers and they turned off the equipment and “g[ot] the
package.” The video of the transaction was played for the jury. The informant identified
the bag of the substance that he received from the defendant.
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On cross-examination, the informant admitted that he had previously sold cocaine to
the defendant’s ex-wife. The informant acknowledged that the package of substance the
defendant sold him looked unusual. However, he elaborated on redirect that it looked
unusual because he had never “deal[t] with meth” and only seen it on less than five
occasions.
Special Agent Dana Parmenter, a forensic scientist with the TBI Crime Lab, testified
that she analyzed the evidence submitted in this case and determined that it weighed 1.6
grams and contained methamphetamine, a Schedule II controlled substance.
Carmen Cupples testified that he managed the Geographic Information System
(“GIS”) for the City of Dyersburg. Cupples used the GIS system to produce a map of 117
East College Street. The map showed that the address was “across the intersection” from
Newbern Elementary School. Cupples said that the distance between the property lines of
the two locations was 145 feet. On cross-examination, Cupples admitted that he never went
out and personally measured the distance between the school and the location where the
transaction occurred.
On redirect examination, Cupples explained that the mapping system was based on
an aerial photograph and that the system met the National Mapping Accuracy standards of
having a horizontal accuracy of two to three feet. He noted that there was a system of
checks and balances in place to ensure the accuracy of the system. Cupples said that he had
frequently been by Newbern Elementary School. He testified that he had drawn a line on
the map showing the College Street address to the school. The line showed the distance
from the property boundary of the residence to the corner of the school building as 435 feet.
The measurement between the physical structure at 117 East College Street to the structure
of the elementary school was 390 feet.
Testifying on behalf of the defense, Amanda McCallum, the defendant’s wife,
testified that she came home from work on October 14, 2008, and saw her prescription bottle
for Prozac sitting empty on the dresser and “broken capsules” lying around. When she asked
the defendant about her pills, he responded that he had used them to make some money.
Mrs. McCallum asked the defendant how the pills made him money, and he explained that
he “took [her] Prozac and . . . mixed it with fingernail polish remover . . . [and] sold it.”
Mrs. McCallum and the defendant argued, and she told him that his actions were
“irresponsible,” but the defendant stated, “I’ve gotta make money somehow.”
The defendant testified that he saw the informant while pumping gas at a gas station.
The defendant did not recognize the informant, but the informant recognized him and they
began talking. The informant asked the defendant when he had gotten out of prison and “if
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[he] was still messing with meth.” The defendant thought that the informant’s question was
odd because they had never had prior drug dealings and “[t]here just ain’t very many African
Americans . . . messing with meth.”
The defendant testified that his ex-wife and the informant were friends, and the
informant had previously sold “her fake crack and stuff like that, [so the defendant] figured
it was [his] chance to get [the informant] back.” The defendant told the informant that he
could get some methamphetamine and suggested that, if the informant could get some
cocaine, they could “do some swapping out.” The informant told the defendant that he
would call him when he got paid or “he got his hand on some dope.”
The defendant testified that the informant called him a few days later asking if the
defendant “could . . . still get that,” and the defendant told the informant that he could. The
defendant explained, however, that he did not have any methamphetamine, so he had to
think of a way to “make that $200 . . . or make that cocaine or whatever he had.” He
elaborated that he “just wanted to get high or get some money to get high.” The defendant
looked around the house, found the Prozac, opened the capsules, and put the contents in a
baggie. He realized the color would never pass for methamphetamine.
The defendant testified that the informant “kind of stalled . . . for about thirty, forty-
five minutes,” but then called back and asked the defendant if he “still ha[d] it.” The
defendant was suspicious but went ahead with the transaction because he “didn’t know it
was illegal to sell Prozac.” The defendant stated that he was aware that the State’s lab test
and the independent test obtained by defense counsel “[s]aid [the substance] was
methamphetamine.” However, the defendant thought “[t]here’s no way Prozac can test as
methamphetamine.” The defendant denied selling methamphetamine to the informant.
After the conclusion of the proof, the jury convicted the defendant as charged of the
sale of more than 0.5 grams of a Schedule II controlled substance, methamphetamine, within
1000 feet of a school.
ANALYSIS
The defendant challenges the sufficiency of the convicting evidence, arguing that the
State failed to prove that the sale occurred within 1000 feet of a school and that he did not
have the mens rea to commit the offense because he believed he was selling Prozac mixed
with nail polish remover. When the sufficiency of the convicting evidence is challenged, the
relevant question of the reviewing court is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
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(1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support the findings by
the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-
92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the
trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our
supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and
the jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be given
to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)).
“A jury conviction removes the presumption of innocence with which a defendant is
initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant has
the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
The defendant was convicted of selling more than 0.5 grams of a Schedule II
controlled substance, specifically, methamphetamine. See Tenn. Code Ann. § 39-17-
417(a)(3), (c)(1) (2006). Although the offense was a Class B felony, id. § 39-17-417(c)(1),
he was charged and found guilty under the Drug-Free School Zone Act, which raised the
conviction class to a Class A felony. See id. § 39-17-432(b)(1). The Act defines this
enhanced drug offense as “[a] violation of § 39-17-417 . . . that occurs on the grounds or
facilities of any school or within one thousand feet (1,000') of the real property that
comprises a public or private elementary school, middle school, secondary school, preschool,
child care agency, or public library, recreational center or park[.]” Id. As required, the
indictment specifically alleged that the sale occurred within 1000 feet of the type of school
prohibited in the statute. See State v. Fields, 40 S.W.3d 435, 440 (Tenn. 2001).
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The defendant first argues that “the distance between where the transaction occurred
and the school was never measured. There is nothing in the record to establish the reliability
of the device used [to] guess the distance.” However, the GIS Manager for the City of
Dyersburg, Carmen Cupples, testified that the GIS system he used to map the area of the
transaction was based on an aerial photograph and property assessment data. Cupples said
that the system met the National Mapping Accuracy standards of having a horizontal
accuracy of two to three feet and that there was a system of checks and balances in place to
ensure the accuracy of the GIS system. In addition, Cupples testified that he was familiar
with the location that he mapped and had been by Newbern Elementary School “[q]uite
frequently.” The map showed that Newbern Elementary School was “across the
intersection” from the defendant’s address and that the distance between the property lines
of the two locations was 145 feet and the distance between the two physical structures was
390 feet. This evidence was heard and assessed by the jury, and the jury determined that the
State proved that the transaction occurred within 1000 feet of a school. The evidence was
sufficient for a rational trier of fact to make this determination.
The defendant also contests the sufficiency of the evidence based on his assertion that
the substance he sold to the confidential informant was not methamphetamine. The
defendant testified at trial that the substance he sold to the informant was Prozac mixed with
nail polish remover. The police witnesses also testified that the defendant told them during
an interview that the substance was not methamphetamine. However, it was the jury’s
prerogative to disbelieve the defendant’s claim based on the fact that the substance tested
positive for methamphetamine by both the TBI lab and an independent lab. Based on this
evidence, viewed in the light most favorable to the State, a rational trier of fact could
conclude that the substance sold by the defendant was what the defendant told the informant
he was selling to him – methamphetamine.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court.
_________________________________
ALAN E. GLENN, JUDGE
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