State v. Wilkerson ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
APRIL, 1998 SESSION
July 9, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) No. 03C01-9708-CR-00336
)
Appellee )
) McMinn County
vs. )
) Honorable, R. Steven Bebb, Judge
)
PHIL WILKERSON, ) (Sale of Cocaine)
)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES M. CORN JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
P.O. Box 1453
Cleveland, TN 37364-1453 CLINTON J. MORGAN
Counsel for the State
Criminal Justice Division
425 Fifth Ave. North
2nd Floor, Cordell Hull building
Nashville, TN 37243-0493
JERRY N. ESTES
District Attorney General
Washington Ave.
Athens, TN 37303
AMY REEDY
Assistant District Attorney General
P.O. Box 647
Athens, TN 37303-1453
OPINION FILED: ____________________
AFFIRMED AND REMANDED
CURWOOD WITT
JUDGE
OPINION
The defendant, Phil Wilkerson,1 was convicted in a bench trial in the
McMinn County Criminal Court of two counts of the sale of less than .5 gram of
cocaine, a class C felony. As a career offender, he was sentenced to fifteen years,
the mandatory maximum penalty, on each count. The trial court ordered that
sentences in the instant case run concurrently but that they be served consecutively
to a twelve-year sentence on a prior conviction. In this appeal, the defendant
contends that the evidence was insufficient to prove that he was the seller of the
cocaine rather than a procuring agent for the purchaser and that the trial court erred
in running the fifteen-year sentences consecutively to the earlier sentence. We find
the evidence sufficient to support the defendant’s convictions but remand the case
to the trial court for reconsideration of the consecutive sentencing issue.
The defendant waived trial by jury and was tried on two counts of sale
of cocaine weighing less than five-tenths of a gram. The defendant was arrested
after Heather Morris, an undercover officer for the Athens Police Department,
purchased cocaine from him on two occasions. The sales were electronically
recorded and monitored by William Matthews, another Athens police officer. The
tapes were played for the jury.
According to Officer Morris’s testimony, the two transactions followed
a similar pattern. At about 11:40 p.m. on October 1, 1996, she drove down Kilgore
Street in Athens, an area known for drug sales. The officer was familiar with
Wilkerson through her study of the photographs of known street salesmen.2 When
she saw him standing in a group of several men, she pulled over and asked if she
could get “a hundred,” that is, a hundred dollars worth of cocaine. The defendant
1
The grand jury indicted the defendant as Phil Wilkerson. Other
documents and the briefs indicate that his name is Stanley Phil Wilkerson. In
accordance with the custom of this court, we use the defendant’s name as given
in the indictment.
2
She and Officer Matthews both testified that the defendant has
very distinctive features. The record does not indicate what those features are.
2
said, “Yeah, circle the block.” She gave the defendant one hundred dollars and
drove around the block. When she returned, the defendant gave her eight “rocks”
or pieces of cocaine. The second sale occurred on October 4 at about 9:50 p.m.
On this occasion, she once again gave one hundred dollars to the defendant. On
the tape, the voice identified as the defendant’s told her to drive around the block,
and he would get the cocaine from some undisclosed third person. After circling the
block, she received ten “rocks” of cocaine from the defendant.3 At another point,
the defendant mentioned that he would be “taken care of at the end of the evening.”
Ms. Morris stated that it was her understanding that the defendant was getting the
drugs from a third party. She positively identified the defendant as the person who
sold her the cocaine.
The defendant testified in his own behalf and stated that he probably
had taken part in the transactions with Officer Morris. He said that as a drug addict
he acted as a street seller for a third party. He never received any money from the
transactions but generally received some crack cocaine for his own use.
Sometimes the third party provided him with some crack, and sometimes he just
helped himself to a piece before he delivered it to the customer.
Based on this evidence, the trial judge found the defendant guilty of
two counts of the sale of cocaine.
A guilty verdict accredits the testimony of the state’s witnesses and
resolves all conflicts in favor of the state’s theory. State v. Hatchett, 560 S.W.2d
627, 630 (Tenn. 1978). The state is entitled to the strongest legitimate view of the
evidence and all reasonable or legitimate inferences which may be drawn
therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). It is the appellate
court’s duty to affirm the conviction if the evidence, viewed under these standards,
3
The defense stipulated to the admission of the laboratory reports
that indicated that the material Officer Morris received from the defendant
contained cocaine.
3
was sufficient for any rational trier of fact to have found the essential elements of
the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317,
99 S. Ct. 2781, 2789; State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R.
App. P. 13(e). The appellate court will not disturb a verdict of guilty due to
sufficiency of the evidence unless the facts contained in the record, together with
appropriate inferences, are insufficient as a matter of law to sustain the verdict.
State v. McPherson, 882 S.W.2d 365, 369 (Tenn. Crim. App. 1994).
To convict a defendant of the sale of cocaine, the state must prove
that the defendant knowingly sold a controlled substance. Tenn. Code Ann. § 39-
17-417(a)(3) (1997). The defendant does not deny that he gave Officer Morris
baggies containing crack cocaine. In fact, he stipulated that each baggy contained
.4 gram of a substance containing cocaine. Nor does he contend that he acted
unknowingly when he received the money and delivered the cocaine to Officer
Morris.4 The defendant contends that the evidence does not prove that the
transactions constituted sales. He relies upon this court’s holding in State v.
Baldwin, 867 S.W.2d 358 (Tenn. Crim. App. 1993), to argue that as the “procurer”
of the cocaine, he may be convicted only of simple possession. For the reasons
discussed below, we find that the defendant’s transactions with Officer Morris were
sales and that the evidence submitted at trial is more than sufficient to prove that
the defendant is guilty of knowingly selling cocaine.
The defendant’s reliance on Baldwin is misplaced. In Baldwin, this
court modified the defendant’s conviction for selling cocaine to one for possession.
Id. at 359. The undercover officer in Baldwin offered to give the defendant a ride
home. Neither Baldwin nor another man who was riding in the car knew that the
driver was a police officer. Id. When the undercover officer and the other man
4
“Knowing” refers to a person who acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware
of the nature of the conduct or that the circumstances exist. . . .” Tenn. Code
Ann. § 39-11-302 (1997).
4
discussed purchasing drugs, Baldwin suggested that they drive to the area where
her nephew might have some for sale. When she spotted her nephew, the other
man took a twenty-dollar bill from the officer. Id. He and Baldwin approached a
man who accepted the money and handed the defendant a “rock.” Upon their
return to the car, the officer directed the defendant to give him the rock. When she
complied, the officer arrested her. Id. In modifying the conviction, this court found
that, although her actions had facilitated the sale, the fact that she brought the
drugs back to the car was insufficient to establish her intent to participate in the
sale. Id. at 360.
The facts of this case prove beyond a reasonable doubt that the
defendant participated in two sales of cocaine. In State v. William (Slim) Alexander,
No. 01C01-9302-CR-00063, slip op. at 4 (Tenn. Crim. App., Nashville, Mar. 24,
1994), this court adopted the general definition of “sale” found at Black’s Law
Dictionary 1200 (5th ed. 1979) as “a contract between two parties by which the
seller, in consideration of the payment or promise of payment of a certain price in
money, transfers to the buyer the title and possession of the property.” Alexander,
slip op. at 4. According to this definition, a sale consists of two broad components:
a bargained-for offer and acceptance, and an actual or constructive transfer or
delivery of the subject matter property. Id. In this case, Officer Morris offered to
purchase a certain amount of cocaine for a given price. The defendant accepted
the payments. One who accepts payment in exchange for property is involved in
a sale. State v. David Henning, No. 02C01-9404-CC-00079, slip op. at 5 (Tenn.
Crim. App., Jackson, Oct. 26, 1994). In both transactions, Wilkerson not only
accepted the payment but delivered the property as well. In Baldwin, on the other
hand, the defendant pointed out the person who was selling drugs, accompanied
a third person who had the money to the transaction and then carried the controlled
substance from the seller to the undercover officer. Thus the court found that the
evidence was not sufficient to demonstrate that the defendant had the intent to
participate in a sale. In this case, however, Wilkerson’s actions satisfy the two
5
broad requirements of a “sale.” See Alexander, slip op. at 4. In both transactions
he accepted an offer and delivered the property. We find that the evidence in the
record is sufficient for a rational trier of fact to conclude beyond a reasonable doubt
that the defendant participated in knowing sales of cocaine on October 1 and
October 4, 1996. See State v. Michael Wayne Henry, No. 02C01-9611-CC-00382,
slip op. at 9-12 (Tenn. Crim. App., Jackson, May 29, 1997).
In his second issue, the defendant contends that the trial court erred
by ordering him to serve the two concurrent fifteen-year sentences consecutively
to a previous twelve year sentence. The defendant argues that the trial judge erred
in finding that the law required the court to run the fifteen-year sentences
consecutively to his earlier sentence and that a twenty-seven year sentence is
disproportionate to the seriousness of the offenses. Because the law does not
mandate consecutive sentencing in this instance, we remand the case to the trial
court for reconsideration of the issue of concurrent and consecutive sentencing in
light of Rule 32 (c) of the Tennessee Rules of Criminal Procedure and Tennessee
Code Annotated sections 40-35-115 and 310.
At the conclusion of the sentencing hearing, the trial court found that
the defendant was a career offender with nine prior B and C felonies and sentenced
him on both counts to the maximum sentence within the applicable range as
required by Tennessee Code Annotated section 40-35-108(a)(1). The trial judge
also found that (1) deterrence was a requirement because of the increase in
cocaine use in McMinn County; (2) although the defendant was presently addicted
to cocaine, he had previously lived a productive life; (3) the defendant had
committed numerous crimes since 1993; (4) he had demonstrated an unwillingness
to comply with conditions of release; and (5) he was on probation when he sold the
cocaine to Officer Norris. The trial judge stated:
I guess the only thing that I can do, that I feel like I can
do is to run those two sentences concurrently, that is, at
the same time. However, since they were committed at
a time when you were on probation from this court
6
these sentences must run consecutive to your priors,
which were all concurrent type things, for a total of
twelve years. (Emphasis added).
The court then sentenced the defendant to an effective sentence of 27 years with
15 years to be served at 60% as a career offender.
The trial court apparently believed that if a defendant were on
probation when the current offense was committed, he had no choice but to run the
sentence for the current offense consecutively to the unexpired sentence.5 The law
does not mandate such a result. See Tenn. Code Ann. §§ 40-335-115(b), -310
(1997); Tennessee Rules of Criminal Procedure 32(c).
The procedure the trial court must follow in deciding whether or not a
sentence should be served concurrently or consecutively with an unexpired
sentence is set out in Rule 32(c)(2) of the Tennessee Rules of Criminal Procedure:
Sentence When Defendant Has Prior Sentence Not
Fully Served. -- If the defendant has additional
sentences not yet fully served as the result of
convictions in the same court or in other courts of this
state and if this fact is made known to the court prior to
sentencing, the court shall recite this in the judgment
setting sentence, and the sentence imposed shall be
deemed to be concurrent with the prior sentence or
sentences, unless it affirmatively appears that the new
sentence being imposed is to be served consecutively
with the prior sentence or sentences.
This court has previously held that the exercise of discretion given the
trial court by Tennessee Rules of Criminal Procedure 32(c)(2) essentially involves
the consideration of the sentencing criteria provided in Tennessee Code Annotated
section 40-35-115(b) (1990). State v. Larry G. Hart, No. 02C01-9406-CC-00111
(Tenn. Crim. App., Jackson, June 28, 1995), opinion on pet. for reh’g (Tenn. Crim.
5
The court may have been thinking of the Tennessee Code
Annotated section 40-20-111(b) which requires the imposition of consecutive
sentences when the defendant commits a felony while he is on bail and is
convicted for both offenses.
7
App., Jackson, Jul. 26, 1995).6 In Hart, the trial court stated that a consecutive
sentence was mandatory because the offense was committed while the defendant
was serving a sentence on community corrections. Slip op. at 11. The panel
remanded the case to the trial court to allow the trial court to exercise its discretion
in determining whether the sentence in the case at bar should run concurrently with
or consecutively to the prior sentence. Slip op. at 12. Such a remand is
appropriate in this case as well.
The Hart court instructed the trial court to proceed according to rule
32(c)(2) of the Tennessee Rules of Criminal Procedure. However, in determining
whether the sentence imposed should be served concurrently with or consecutively
to the prior sentence, the trial court should consider the statutory criteria set forth
in Tennessee Code Annotated section 40-35-115.7
Upon remand, the trial court in this case has the discretion to order
that the fifteen-year sentences be served concurrently with or consecutively to the
unexpired twelve-year sentence. In making this determination, the trial judge should
consider the statutory criteria in Tennessee Code Annotated section 40-35-115 as
well as the purposes and principles of the Sentencing Reform Act of 1989. See
Tenn. Code Ann. §§ 40-35-102, -103 (1997). Consecutive sentences should not
be routinely imposed and the aggregate maximum of consecutive terms must be
6
See also State v. Michael W. Kaufmann, No. 03C01-9607-CC-
00260, slip op. at 3 (Tenn. Crim. App., Knoxville, Oct. 22, 1997); State v. Charles
Clay Young, No. 01C01-9605-CC-00195, slip op. at 15 (Tenn. Crim. App.,
Nashville, Aug. 15, 1997); State v. Lisa Gaye Copeland, No. 03C01-9605-CC-
00196, slip op. at 6 (Tenn. Crim. App., Knoxville, May 13, 1997); State v.
Thomas Edward Capps, No. 01C01-9506-CC-00164, slip op. at 4 (Tenn. Crim.
App., Nashville, Feb. 29, 1996).
7
Another statutory basis for ordering consecutive sentencing in this
situation is found in Tennessee Code Annotated section 40-35-310 which
provides that
[i]n any case of revocation [of probation] on account of conduct by
the defendant which has resulted in a judgment of conviction
against him during his period of probation, the trial judge may order
that the term of imprisonment imposed by the original judgment be
served consecutively to any sentence which was imposed upon
such conviction.”
This section as well as section 40-35-115(b)(6) allows for consecutive service of
the prior unexpired sentence. See State v. Moore, 942 S.W.2d 570, 573 (Tenn.
Crim. App. 1996).
8
reasonably related to the severity of the offenses involved. Tenn. Code Ann. § 40-
35-115 Sentencing Comm’n Comments (1997). Lengthy consecutive sentences
may be imposed when such confinement is necessary to protect society against
further criminal conduct. Tenn. Code Ann. § 40-35-103 (1) (1997). If the trial judge
again orders consecutive sentences, he should state in his order the statutory
provisions on which he relies and make the specific findings of facts which support
consecutive sentencing. See Tenn. R. Crim. P. 32(c)(1).
We affirm the defendant’s convictions and the two fifteen-year
concurrent sentences for the sale of less than .5 gram of cocaine. This case is
remanded to determine whether the sentence should be served concurrently with
or consecutively to the prior sentence.
__________________________
CURWOOD W ITT, Judge
CONCUR:
______________________________
PAUL G. SUMMERS, Judge
______________________________
JERRY L. SMITH, Judge
9