State v. William Wilson ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1997 SESSION
FILED
August 5, 1997
STATE OF TENNESSEE, )
Cecil Crowson, Jr.
) Appellate C ourt Clerk
APPELLEE, )
) No. 02-C-01-9608-CC-00272
)
) Decatur County
v. )
) C. Creed McGinley, Judge
)
) (Sale of Methamphetamine)
WILLIAM K. WILSON, )
)
APPELLANT. )
FOR THE APPELLANT: FOR THE APPELLEE:
Richard W. DeBerry John Knox Walkup
Assistant Public Defender Attorney General & Reporter
P.O. Box 663 500 Charlotte Avenue
Camden, TN 38320 Nashville, TN 37243-0497
OF COUNSEL: Georgia B. Felner
Assistant Attorney General
Guy T. Wilkinson 450 James Robertson Parkway
District Public Defender Nashville, TN 37243-0493
P.O. Box 663
Camden, TN 38320 R. Robert Radford
District Attorney General
P.O. Box 686
Huntingdon, TN 38344-0686
James W. Wallace
Assistant District Attorney General
P.O. Box 637
Parsons, TN 38363-0637
John W. Overton, Jr.
Assistant District Attorney General
P.O. Box 484
Savannah, TN 38372-0484
OPINION FILED:_______________________________
AFFIRMED
Joe B. Jones, Presiding Judge
OPINION
The appellant, William K. Wilson (defendant), was convicted of two counts of selling
methamphetamine (crank), a Class C felony, by a jury of his peers. The trial court, finding
the defendant to be a standard offender, imposed a Range I sentence consisting of a
$10,000 fine and confinement for five (5) years in the Department of Correction in each
count. The sentences are to be served concurrently. In this Court, the defendant contends
the evidence is insufficient to support his convictions, the sentences imposed were
excessive, and the trial court abused its discretion by refusing to impose an alternative
sentence to incarceration. After a thorough review of the record, the briefs submitted by
the parties, and the law governing the issues presented for review, it is the opinion of this
Court the judgment of the trial court should be affirmed.
The criminal investigation division of the Tennessee Department of Safety was
investigating drug trafficking in Decatur County during 1994 and 1995. Trooper Gary Azbill
was assigned to conduct the investigation. He obtained the assistance of Mary Skates to
aid in the investigation. Skates had been part of the drug culture in Decatur County. She
knew the defendant and had lived with him for a brief period of time.
Before Skates would attempt to purchase illicit drugs, Trooper Azbill provided her
with the money to purchase the drugs and equipped Skates with a recorder so the
conversations between Skates and the drug trafficker could be recorded. Trooper Azbill
would also search Skates and her vehicle to make sure she did not have illicit drugs in her
possession.
On December 28, 1994, and January 5, 1995, Skates went to the home of the
defendant. On both occasions she purchased a quantity of crank from the defendant.
Each transaction was recorded. On both occasions Skates met Trooper Azbill immediately
after the transaction. Skates provided him with the illicit drugs she purchased on these two
occasions, and, if she did not spend all of the money provided by Trooper Azbill, she
returned the remaining money to him.
The defendant testified in support of his defense. He admitted living with Skates,
whom he described as a truck driver. When she purchased illicit drugs while driving the
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truck, he participated in the consumption of the drugs. He claims he forced her to leave
because of her excessive drug use. The defendant opined Skates had accused him of
selling her the illicit drugs because she was angry at him. He asserted Skates wanted a
very close relationship with him and he spurned the relationship by forcing her to leave his
residence. He denied selling her the crank.
I.
The defendant contends the evidence contained in the record is insufficient, as a
matter of law, to support his convictions. The argument supporting this issue is predicated
exclusively upon the credibility of Mary Skates.
When an accused challenges the sufficiency of the convicting evidence, this Court
must review the record to determine if the evidence adduced at trial is sufficient "to support
the finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e).
This rule is applicable to findings of guilt based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Dykes, 803
S.W.2d 250, 253 (Tenn. Crim. App.), per. app. denied (Tenn. 1990).
In determining the sufficiency of the convicting evidence, this Court does not
reweigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App.), per. app. denied (Tenn. 1990). Nor may this Court substitute its inferences for those
drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199 Tenn. 298,
305, 286 S.W.2d 856, 859, cert. denied, 352 U.S. 845, 77 S. Ct. 39, 1 L. Ed. 2d 49 (1956).
To the contrary, this Court is required to afford the State of Tennessee the strongest
legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of the witnesses, the weight and value to be
given the evidence, as well as all factual issues raised by the evidence are resolved by the
trier of fact, not this Court. Cabbage, 571 S.W.2d at 835. In State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973), our Supreme Court said: "A guilty verdict by the jury, approved by
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the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State."
Since a verdict of guilt removes the presumption of innocence and replaces it with
a presumption of guilt, the accused, as the appellant, has the burden in this Court of
illustrating why the evidence is insufficient to support the verdicts returned by the trier of
fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court will not disturb a
verdict of guilt due to the sufficiency of the evidence unless the facts contained in the
record are insufficient, as a matter of law, for a rational trier of fact to find that the accused
is guilty beyond a reasonable doubt. Tuggle, 639 S.W.2d at 914.
Clearly, there is sufficient evidence contained in the record to support a finding by
a rational trier of fact that the defendant is guilty of two counts of selling methamphetamine
(crank), beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (Tenn. 1979). The verdicts returned by the jury
establish the jury accredited the testimony of Mary Skates -- the jury believed her -- and
rejected the testimony of the defendant -- the jury did not believe him.
This issue is without merit.
II.
The defendant contends (a) the sentences imposed by the trial court were excessive
and (b) the trial court abused its discretion by refusing to impose alternative sentences to
incarceration. He argues the trial court erred by applying certain enhancement factors
when setting the sentence.
A.
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). This presumption is "conditioned upon the affirmative showing
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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. 1994). 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.), per. app. denied (Tenn. 1994); State v. Bonestel,
871 S.W.2d 163, 166 (Tenn. Crim. App. 1993). However, this Court is required to give
great weight to the trial court's determination of controverted facts as the trial court's
determination of these facts is predicated upon the witnesses' demeanor and appearance
when testifying.
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 enhancing factors, (g)
any statements made by the accused in his own behalf, and (h) the accused's potential or
lack of potential for rehabilitation or treatment. Tenn. Code Ann. §§ 40-35-103 and -210;
State v. Scott, 735 S.W.2d 825, 829 (Tenn. Crim. App.), per. app. denied (Tenn. 1987).
The party challenging the sentences imposed by the trial court has the burden of
establishing that the sentences are erroneous. Sentencing Commission Comments to
Tenn. Code Ann. § 40-35-401; Ashby, 823 S.W.2d at 169; Butler, 900 S.W.2d at 311.
In this case, the defendant has the burden of illustrating the sentences imposed by the trial
court are erroneous.
B.
The trial court correctly found the record supports two enhancement factors. The
defendant has an extensive history of criminal convictions and criminal behavior. Tenn.
Code Ann. § 40-35-114(1). During a period from February 27, 1981 to May 3, 1993, the
defendant was convicted of burglary first degree, two counts of petit larceny, assault on a
police officer, possession of a controlled substance on the premises of a jail, possession
of .28 grams of marijuana with intent to sell, possession of marijuana with intent to sell,
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possession of drug paraphernalia, possession of a pistol and sawed-off shotgun after being
convicted of a felony, destruction of state property, multiple counts of driving while under
the influence, multiple counts of public intoxication, multiple counts of driving a motor
vehicle after his driver’s license was revoked, and driving while his driver’s license was
suspended. In addition, the defendant admitted he continued to ingest marijuana until his
conviction. This constituted criminal behavior.
The trial court also correctly found the defendant had a previous history of
unwillingness to comply with the conditions of a sentence involving release in the
community. Tenn. Code Ann. § 40-35-114(8). The defendant was released on parole in
a petit larceny case. He was subsequently arrested for the weapon offense, and his parole
was revoked.
In the argument accompanying this issue, the defendant does not challenge either
of these enhancement factors as the issue indicates. Instead, he argues the trial court
abused its discretion by failing to find his conduct neither caused nor threatened serious
bodily injury to a victim. Tenn. Code Ann. § 40-35-113(1). The trial court refused to apply
this mitigating factor based upon the nature of the offense and the drug the defendant sold.
The court was correct in refusing to apply this mitigating factor. The factor is not available
when the defendant has been convicted of an offense involving a serious drug such as
cocaine or crank. State v. Keel, 882 S.W.2d 410, 422 (Tenn. Crim. App.), per. app. denied
(Tenn. 1994).
C.
The defendant claims the trial court abused its discretion by refusing to impose an
alternative sentence to confinement. The trial court did not abuse its discretion in this
regard.
As previously stated, the record establishes the defendant’s extensive record of
criminal convictions and behavior. It also establishes his parole for a prior conviction was
revoked because he committed a felony while released in the community. The defendant
has also been placed on probation or given short sentences. Nevertheless, the defendant
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continued to engage in criminal conduct. He admitted ingesting cocaine until March of
1996, the date this case was tried.
Confinement is the appropriate punishment for the defendant. He should not be
granted an alternative to confinement because:
1.) He has a long history of criminal conduct. Therefore, there is a need to protect
society from the defendant. Tenn. Code Ann. § 40-35-103(1)(A).
2.) Confinement in this case is necessary to avoid depreciating the seriousness of
the offenses committed by the defendant. Tenn. Code Ann. § 40-35-103(1)(B).
3.) Confinement in this case is particularly suited to provide an effective deterrent
to others likely to engage in like or similar conduct. Tenn. Code Ann. § 40-35-103(1)(B).
4.) Measures less restrictive than confinement did not deter the defendant from
continually engaging in criminal conduct. Tenn. Code Ann. § 40-35-103(1)(C).
5.) Unfortunately, the defendant’s extensive criminal record and conduct clearly
establishes he is beyond the pale of rehabilitation or treatment. Tenn. Code Ann. § 40-35-
103(5). This Court is convinced the defendant will commence his life of criminal conduct
if granted probation or a community corrections sentence. This has been his lifestyle his
entire adult life.
In summary, society will be best served if the defendant is incarcerated. Moreover,
the defendant is not a proper candidate for an alternative sentence to incarceration based
upon the aforementioned criteria.
This issue is without merit.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
______________________________________
DAVID H. WELLES, JUDGE
______________________________________
JOE G. RILEY, JUDGE
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