State of Tennessee v. Cortino Harris ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 5, 2010
STATE OF TENNESSEE v. CORTINO HARRIS
Direct Appeal from the Circuit Court for Madison County
No. 08-147 Donald H. Allen, Judge
No. W2009-00457-CCA-R3-CD - Filed February 2, 2010
The defendant, Cortino Harris, was convicted by a Madison County Circuit Court jury of
possession of marijuana with intent to sell and possession of marijuana with intent to
deliver, Class E felonies, and evading arrest, a Class A misdemeanor. The court merged the
felony drug convictions and sentenced the defendant as a Range II multiple offender to four
years in the Department of Correction. The court sentenced the defendant to eleven months,
twenty-nine days on the misdemeanor conviction, to be served consecutively to the felony
sentence. On appeal, the defendant challenges the sufficiency of the convicting evidence
and the trial court’s imposition of consecutive sentences. After review, we affirm the
judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and C AMILLE
R. M CM ULLEN, JJ., joined.
Gregory D. Gookin, Assistant Public Defender, for the appellant, Cortino Harris.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Shaun A. Brown,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
This case arises out of a drug transaction that was witnessed by an undercover officer
for which the defendant was indicted on possession of marijuana with intent to sell,
possession of marijuana with intent to deliver, and misdemeanor evading arrest.
Sergeant Jamie Blankenship with the Jackson Police Department testified that she
was called to the parking lot of a Phillips 66 gas station on the night of October 21, 2007,
in response to Sergeant Whitman’s locating a vehicle that had been involved in a drug
transaction. Upon her arrival, Sergeant Blankenship noticed the defendant, the former driver
of the vehicle, standing outside the vehicle, Sergeant Whitman standing next to the
defendant, and a passenger still sitting in the front passenger seat. Sergeant Blankenship
recalled that Sergeant Whitman was explaining to the defendant why he had been stopped,
what the allegation was against him, and what he needed to do.
Sergeant Blankenship testified that Sergeant Whitman requested to pat down the
defendant and search his vehicle, but the defendant “bec[a]me very agitated” and would not
consent to a patdown or search of his vehicle. Sergeant Whitman and the defendant
continued “back and forth” with Sergeant Whitman telling the defendant he needed to put
his hands on the trunk of the car and the defendant refusing, at which point Sergeant
Blankenship took a step toward the defendant and the defendant “bolted and fled.” Sergeant
Whitman and Officer Haney unsuccessfully pursued the defendant on foot, while Sergeant
Blankenship stayed with the vehicle and the passenger. The passenger agreed to a search
of his person, which did not reveal any controlled substances or contraband, and he was
allowed to leave the scene. Sergeant Blankenship inventoried the vehicle before it was
towed, during which she found a third-full box of ziplock bags in the back floorboard and
a large quantity of what appeared to be marijuana tightly wrapped in cellophane in the
console area. She noted that the marijuana was packaged in a way that was “common
practice for narcotic sales.”
On cross-examination, Sergeant Blankenship acknowledged that when she arrived,
the defendant had already given Sergeant Whitman his driver’s license and vehicle
registration information. Sergeant Blankenship stated that when she stepped toward the
defendant, she was not attempting to place him under arrest but instead was planning on
detaining him until another individual arrived who could identify the vehicle as being
involved in the drug transaction. On redirect examination, Sergeant Blankenship testified
that the passenger was allowed to leave the scene because the officers were able to verify
his identity, he did not have any outstanding warrants, and there was no reason to detain him
further.
Brenda McNeil, an evidence technician for the Madison County Sheriff’s Department
Narcotics Unit, testified that she transported the drug evidence seized in this case to and
from the laboratory in Memphis for testing.
Agent Melanie Johnson, a forensic scientist with the Tennessee Bureau of
Investigation’s crime laboratory, testified that she tested the substance recovered in this case
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and determined that it was 57.4 grams of marijuana.
Officer Tikal Greer with the Jackson Police Department testified that he was working
an auto burglary detail the night of October 21, 2007, when he saw what appeared to be a
drug transaction take place. He noticed two cars, one silver and one black, “backed in
facing east at PetSmart” approximately 100 feet from his location in the parking lot between
PetSmart and another establishment. A white male got out of the silver vehicle and got into
the backseat of the black vehicle and talked to the two occupants of the black vehicle. The
white male then returned to the silver vehicle, discussed something with his passenger, and
returned to the black vehicle. Officer Greer then saw “an exchange between the white male
and one of the occupants of the black vehicle,” but he could not determine which occupant
made the exchange. Afterward, the white male got out of the black vehicle and returned to
the silver car. The exchange took approximately ten minutes.
Officer Greer testified that both cars left the scene. Not wanting to reveal his identity
as an undercover officer, Officer Greer radioed for assistance from other officers in stopping
the vehicles. Officer Greer recalled that Sergeant Whitman stopped the black car. Upon
traveling to the scene of the stop, Officer Greer verified that it was the same car he had seen
at PetSmart but noted that only the passenger was present.
Officer James Avery with the Jackson Police Department testified that he received
a radio call from Officer Greer the night of October 21, 2007, regarding two vehicles being
involved in a possible drug transaction. Officer Avery stated that he assisted another officer
in the traffic stop of the silver vehicle, a Honda Accord with two white male occupants. A
search of the vehicle revealed a small bag of marijuana.
Sergeant Phillip Whitman with the Jackson Police Department testified that he
responded to Officer Greer’s call on October 21, 2007, and began following the black
vehicle, an Infiniti car. Sergeant Whitman activated his patrol car’s emergency lights, and
the black car pulled into the parking lot of a Phillips 66 gas station. The driver, identified
as the defendant, gave Sergeant Whitman his license and registration.
Meanwhile, Sergeant Whitman was informed that narcotics had been recovered from
the silver vehicle, so he approached the black car again to ask the defendant for permission
to search. He recalled that the defendant stepped out of the car, and Sergeant Whitman
informed him that he was going to conduct a pat-down search for his safety. The defendant
told Sergeant Whitman that he could not “search [him] or [his] car.” When Sergeant
Whitman informed the defendant that it was standard procedure, “[the defendant] broke and
ran.”
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Sergeant Whitman recalled that the passenger remained in the vehicle, and they let
him go after conducting a warrant check on him. The officers conducted an inventory
search of the defendant’s abandoned vehicle and located marijuana in the console. They
also found an open box of plastic bags, which piqued Sergeant Whitman’s curiosity because
“that’s what you would do to package for resell.” Sergeant Whitman identified the
defendant’s driver’s license that he had left that night, as well as the vehicle registration
showing that the vehicle was registered to the defendant.
Sergeant Whitman testified that he did not arrest the defendant that night because the
defendant ran away. He said that he was about to take the defendant into custody and arrest
him when he ran off.
On cross-examination, Sergeant Whitman testified that the defendant “was being
detained” when he fled from the officers. Asked on redirect examination whether he was
“attempting to lay hands on him to arrest him when he ran,” Sergeant Whitman said, “I was
fixing to. I was going to pat him down and basically just like I said to follow procedure.”
Following the conclusion of the proof, the defendant was convicted on all three
counts as charged.
ANALYSIS
I. Sufficiency of the Evidence
The defendant first argues that the evidence was insufficient to sustain his convictions.
When reviewing a challenge to the sufficiency of the convicting evidence, we note that 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,
99 S. Ct. 2781, 2789 (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:
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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. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
To sustain the defendant’s drug convictions, the State had to show beyond a
reasonable doubt that the defendant knowingly possessed “not less than one-half ( ½ ) ounce
(14.175 grams) nor more than ten pounds (10 lbs.) (4535 grams) of marijuana” with the
intent to deliver or sell it. Tenn. Code Ann. § 39-17-417(a)(4), (g)(1) (2006). Possession
of drugs may be constructive as well as actual. State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001); State v. Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996); State v. Cooper,
736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). “Constructive possession requires that a
person knowingly have the power and the intention at a given time to exercise dominion and
control over an object, either directly or through others. In essence, constructive possession
is the ability to reduce an object to actual possession.” State v. Copeland, 677 S.W.2d 471,
476 (Tenn. Crim. App. 1984) (citation omitted). Criminal liability may result from sole
possession or joint possession with another person. See State v. Richards, 286 S.W.3d 873,
885-886 (Tenn. 2009).
To convict the defendant of misdemeanor evading arrest, the State had to prove that
the defendant intentionally fled from a person he knew to be a law enforcement officer while
knowing that the officer was attempting to arrest him. Tenn. Code Ann. §
39-16-603(a)(1)(A) (2006).
In the light most favorable to the State, the evidence shows that Officer Greer
observed a drug transaction take place between the occupants of two vehicles. Upon
initiating a traffic stop of one of the vehicles, Sergeant Whitman obtained the driver’s
license and vehicle registration from the driver, identified as the defendant. The vehicle was
registered to the defendant. Meanwhile, a stop and search of the other vehicle revealed a
small bag of marijuana. Informed of this information, Sergeant Whitman requested to pat-
down the defendant and search his car, but the defendant refused and ran away. An
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inventory search of the defendant’s abandoned vehicle revealed 57.4 grams of marijuana
wrapped in a way indicative of resell and a partially used box of plastic bags, also indicative
of resell. This evidence was sufficient for a rational trier of fact to conclude that the
defendant constructively possessed, either solely or jointly with his passenger, marijuana
with the intent to sell or deliver.
As to the evading arrest conviction, the defendant has argued on appeal that the issue,
as to this claim, is “first, whether Sergeants Blankenship and Whitman were attempting to
arrest [the defendant] when they tried to grab his arm and, second, whether [the defendant]
knew that he was about to be arrested.” We note that, in his motion for new trial, the
defendant made the general claims, without amplification, that the evidence was insufficient
to sustain his convictions. At the hearing on the motion, no argument was presented as to
the conviction for evading arrest. Accordingly, the trial court was not afforded the
opportunity to consider the more specific arguments which are made on appeal.
Nevertheless, in the light most favorable to the State, the evidence shows that
Sergeant Whitman pulled the defendant over by activating the blue lights on his marked
patrol car. He informed the defendant “why he had made the stop and what the allegation
had been and . . . explain[ed] to him what he needed to do.” Sergeant Whitman said that he
was about to place the defendant in custody and arrest him when the defendant ran. Even
though Sergeant Blankenship testified that she was not attempting to arrest the defendant
when she reached for him, Sergeant Whitman was the primary officer involved in the
interaction with the defendant and Sergeant Blankenship’s involvement was only auxiliary.
Based on this evidence, a rational trier of fact could conclude that when the defendant fled,
Sergeant Whitman was about to arrest him, and the defendant should have known Sergeant
Whitman was attempting to arrest him having been informed of the allegation against him.
II. Sentencing
On appeal, the defendant argues that the trial court erred in imposing consecutive
sentences. When an accused challenges the length and manner of service of a sentence, it
is the duty of this court to conduct a de novo review on the record “with a presumption that
the determinations made by the court from which the appeal is taken are correct.” Tenn.
Code Ann. § 40-35-401(d) (2006). This presumption is “conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant
facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The
presumption does not apply to the legal conclusions reached by the trial court in sentencing
the accused or to the determinations made by the trial court which are predicated upon
uncontroverted facts. State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State
v. Smith, 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994); State v. Bonestel, 871 S.W.2d 163,
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166 (Tenn. Crim. App. 1993), overruled on other grounds by State v. Hooper, 29 S.W.3d 1,
9 (Tenn. 2000).
In conducting a de novo review of a sentence, this court must consider (a) any
evidence received at the trial and/or sentencing hearing, (b) the presentence report, (c) the
principles of sentencing, (d) the arguments of counsel relative to sentencing alternatives, (e)
the nature and characteristics of the offense, (f) any mitigating or enhancement factors, (g)
any statistical information provided by the administrative office of the courts as to Tennessee
sentencing practices for similar offenses; (h) any statements made by the accused in his own
behalf; and (i) the accused’s potential or lack of potential for rehabilitation or treatment.
Tenn. Code Ann. §§ 40-35-103, -210 (2006); State v. Taylor, 63 S.W.3d 400, 411 (Tenn.
Crim. App. 2001). The party challenging the sentence imposed by the trial court has the
burden of establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401 (2006),
Sentencing Commission Cmts.; Ashby, 823 S.W.2d at 169.
At the sentencing hearing, the thirty-four-year-old defendant testified that his felony
conviction in California for possession of cocaine for sale was actually a misdemeanor
conviction for simple possession of cocaine. The defendant denied that he was involved in
the incident in this case and said that he had tried to report that his car had been stolen. On
cross-examination, the defendant admitted that his California conviction for burglary in the
second degree was a felony, but he said “[t]hey had dropped it [and] [he] never went to the
penitentiary.”
The court first merged the defendant’s convictions for possession with intent to sell
and possession with intent to deliver into one conviction. The court discussed the
defendant’s criminal record as indicated in the presentence report and determined that he was
a Range II multiple offender. The court enhanced the defendant’s sentence within the range
based on his approximately twenty-two prior misdemeanor convictions, his being a leader
in the commission of the offense, and his failure to previously comply with a sentence
involving release in the community. See Tenn. Code. Ann. § 40-35-114(1), (2), (8). The
court applied slight mitigation to the fact the offense did not involve or threaten serious
bodily injury. See id. § 40-35-113(1). The court sentenced the defendant to four years on
the felony drug conviction and eleven months, twenty-nine days on the misdemeanor evading
arrest conviction.
The court found that the defendant’s testimony was not truthful, which reflected
poorly on his amenability to rehabilitation. The court determined that a sentence of
confinement was necessary to protect society from a defendant with a long history of
criminal conduct, to avoid deprecating the seriousness of the offenses, and that measures less
restrictive than confinement had recently and frequently been applied to the defendant
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without success.
The defendant contests on appeal the trial court’s ordering that his sentences be served
consecutively. Tennessee Code Annotated section 40-35-115(b) provides that a trial court
may, in its discretion, order sentences to run consecutively if it finds by a preponderance of
the evidence that the defendant is an offender whose record of criminal activity is extensive.
Tenn. Code Ann. § 40-35-115(b)(2) (2006). The presentence report shows that the defendant
has approximately twenty-five prior felony, misdemeanor, or traffic offense convictions
stemming from the age of eighteen. As such, the trial court was clearly within its discretion
in ordering consecutive sentencing based on the defendant’s record of criminal activity.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
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ALAN E. GLENN, JUDGE
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