State of Tennessee v. Christopher I. Thrasher ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 20, 2014 at Knoxville
STATE OF TENNESSEE v. CHRISTOPHER I. THRASHER
Appeal from the Criminal Court for Overton County
No. 2012-CR-48 Leon C. Burns, Jr., Judge
No. M2013-02495-CCA-R3-CD - Filed July 18, 2014
The Defendant, Christopher I. Thrasher, was convicted by an Overton County jury of
delivery of oxycodone within 1000 feet of a school zone, and the trial court imposed a
sentence of seventeen years for that conviction. In this direct appeal, the Defendant alleges
that the following errors were made at his trial: (1) that his motion to suppress should have
been granted because he was under the influence of drugs at the time he waived his rights
and gave his statement; (2) that the chain of custody regarding the pills was not sufficiently
established; and (3) that enhancement of his sentencing term above the range minimum was
improper. After a thorough review of the record and the applicable authorities, we affirm the
judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and J EFFREY S. B IVINS, JJ., joined.
Chasity Hancock and Kelly R. Williams, Livingston, Tennessee, for the appellant,
Christopher I. Thrasher.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael A. Meyer, Deputy Attorney
General; Randall A. York, District Attorney General; and Owen G. Burnett, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case concerns the July 22, 2011 sale of prescription narcotics from the Defendant
to a confidential informant, Nick Norrod. On February 6, 2012, an Overton County grand
jury indicted the Defendant for delivery of oxycodone, a Schedule II controlled substance,
within 1000 feet of a public school, a Class B felony. See Tenn. Code Ann. §§ 39-17-417,
-432. Prior to trial, the Defendant filed a motion to suppress the waiver of his Miranda 1
rights and subsequent confession, arguing that his waiver and statements were not freely and
voluntarily given due to his impairment at the time of the interview. Following a pretrial
hearing, that motion was denied, and the Defendant proceeded to trial in June 2012.
The evidence presented at the Defendant’s trial revealed the following facts. The
Livingston Chief of Police Greg Etheredge received a message from Norrod, on July 22,
2011, that Norrod planned to make a drug purchase from the Defendant. Norrod, who had
been stopped for speeding while driving on a suspended license, initially acted as
confidential informant for the police department in exchange for release from the driving on
a suspended license charge. Norrod was later compensated for his services. Norrod testified
that he had a history of using prescription narcotics for pain due to “many injuries in the
past[,]” so he knew individuals in the community who were selling drugs. Norrod admitted
that he was taking Percocet, a medication containing oxycodone, at the time of trial.
At Chief Etheredge’s request, on July 22, volunteer reserve Officer Andrew Neff
picked Norrod up and drove Norrod to Chief Etheredge’s house, which was about three
blocks away from the Defendant’s residence. Officer Neff was driving a rental car that he
had cleaned very thoroughly and that did not have any drugs in it.
Once they arrived in Chief Etheredge’s driveway, Norrod was searched by Jesse
Brown Franklin, a narcotics detective with the Overton County Sheriff’s Department. Det.
Franklin searched Norrod by “pat[ting] him down from his arm pits to his ankles” and
checking his pockets, clothing, and cigarette pack for various items. Det. Franklin stated that
he was “confident” Norrod did not have drugs on his person before the purchase was made.
Det. Franklin said that “strip search[es]” are “not practiced” in the case of confidential
informants.
Norrod was outfitted with an electronic monitoring device and given $120 to
purchase eight oxycodone pills from the Defendant. Around 8 p.m., Officer Neff dropped
Norrod off near the Defendant’s residence, and he then drove around the block for several
minutes so as not to arouse suspicion. Testimony established that the Defendant’s residence,
215 Zachary Street, was located within 1000 feet of A.H. Roberts Elementary School, a
public elementary school in Overton County. Officer Neff did not actually witness Norrod
going inside the Defendant’s house.
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See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
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Norrod testified that he walked to the Defendant’s front door, that he entered the
Defendant’s home, and that he then bought eight green pills from the Defendant. Norrod
testified that he wrapped the pills in cellophane he had from a cigarette pack in order to keep
them from “melting in [his] hand.” Norrod identified the pills at trial.
Chief Etheredge testified that he was familiar with the Defendant’s voice. On the
audio recording from Norrod’s monitoring device, the Defendant first confirmed the
purchase price. Norrod then asked the Defendant if he was buying all the pills in the
Defendant’s possession at that time, and the Defendant responded in the affirmative. A
discussion ensued about procuring more pills. Also, on the recording, Norrod stated “Chris
brother[,]” calling the Defendant by his first name. Chief Etheredge confirmed that he did
not visually observe the exchange.
Chief Etheredge called Officer Neff and instructed him to pick Norrod up and bring
him back to Chief Etheredge’s house. After Norrod got into Officer Neff’s vehicle, Officer
Neff observed “greenish-bluish” pills in Norrod’s possession, and Officer Neff “stuck” the
pills “in the center console in the cup holder” of the vehicle. When they returned to Chief
Etheredge’s residence, the pills were turned over to Chief Etheredge. Det. Franklin searched
Norrod again by patting him down and did not find any drugs or money. However, Det.
Franklin agreed that it was “possible” for an individual to hide drugs under clothing.
The Defendant challenged the chain of custody of the pills at trial. Chief Etheredge
testified that the pills he received from Norrod were sealed in a plastic bag at the scene.
Chief Etheredge wrote the case agency, the case number, the item number, the date, the time,
the suspect, his initials on the bag, and a brief description of the controlled buy. According
to Chief Etheredge, he then placed the bag into a safe inside the detectives’ office once back
at the station.
Detective Jacob Boswell stated that, on July 22, 2011, he retrieved the evidence from
the safe where Chief Etheredge placed it and typed a Tennessee Bureau of Investigation
(“TBI”) Request for Examination form, with the case number assigned to the evidence, the
quantity of pills, and a statement of facts. Det. Boswell also prepared an “Evidence Receipt,”
an internal Livingston Police Department document to track the evidence within the
department. Det. Boswell said that he then placed the evidence into the evidence lockers,
from which Amy Rhoton retrieved it later.
At the bottom of the Evidence Receipt, Det. Boswell typed that the evidence was
“Released by: Greg Etheredge” and “Released to: Greg Etheredge.” Det. Boswell testified
that this was in error: “[O]n the ‘Released to,’ would have been a typographical error,
because I usually put ‘evidence’ there instead of Chief Etheredge’s name.”
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Amy Rhoton, the evidence technician, secretary, and clerk for the Livingston Police
Department, explained that it was her job to retrieve evidence from the lockers, enter the
evidence into the system, place it into the evidence room or send it to the lab, and prepare a
narrative sheet for each piece of evidence. Only she could open the evidence lockers once
they were closed. Rhoton testified that, in this matter specifically, she retrieved the evidence,
described as “eight green pills,” from the locker on August 18, 2011, and prepared a narrative
sheet. She also wrote similar information on the Evidence Receipt prepared by Det. Boswell.
Detective Gary Ledbetter testified that he took the evidence, sealed in a transparent
plastic container, from the Livingston Police Department to the TBI Crime Lab on August
19, 2011. He signed the TBI Request for Examination form, stating that he was the
submitting individual, and the lab technician who received the evidence signed the document
as “J. Gillis.”
Robert Mark Young, a Special Agent Forensic Scientist with the TBI Crime Lab in
Nashville, testified, based upon the information contained in the Request for Examination
form, that on August 19, 2011, Officer Ledbetter submitted the evidence to the evidence
technician, Jennifer Gillis. According to Agent Young, Ms. Gillis would have then secured
the evidence in the vault. Agent Young requested the evidence on August 30, 2011, and he
placed it in his personal vault until he analyzed it on September 6, 2011. The evidence did
not exhibit any signs of tampering according to Agent Young. After testing, he re-sealed the
bag and returned the pills to “Evidence Receiving[,]” where it was again secured in the
evidence vault. Agent Young testified that the pills appeared to be oxycodone-containing
pharmaceuticals based upon their initial appearance, and his testing confirmed that the pills
did in fact contain oxycodone, a Schedule II controlled substance. After analysis, the
evidence was sent back to the vault until September 28 or 29, 2011, when Rhoton picked up
the evidence from the lab. Rhoton then stored the pills in the evidence room of the
Livingston Police Department until trial.
The State introduced an exhibit of seven and one-half green pills. Testimony
established that one-half of a pill was used in the TBI’s testing.
Rodney Morton, a Special Agent Criminal Investigator with the Office of the
Inspector General, testified that he assisted in the Defendant’s arrest on February 13, 2012.
Agent Morton accompanied Livingston police officers to the Defendant’s residence and then
back to the police department where the Defendant was interviewed by Chief Etheredge.
Agent Morton witnessed the Defendant’s waiver of his Miranda rights after a formal reading,
that waiver occurring at 7:58 a.m., and the Defendant’s statements thereafter. According to
Agent Morton, the Defendant did not appear to be impaired by drugs or medication, was
“fully conscious[,]” and knew “what he was doing when he gave [his] statement[.]” Agent
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Morton stated that neither he nor Chief Etheredge coerced or threatened the Defendant in any
way. Agent Morton testified that the Defendant admitted to selling drugs from July 2011 to
October or late November 2011.
Chief Etheredge confirmed that the Defendant was read his Miranda rights and that
the Defendant gave a statement on February 13, 2012. In the statement, the Defendant
admitted that he was advised of his Miranda rights and signed a wavier agreeing to speak
with Chief Etheredge about selling drugs. The Defendant admitted to selling “Percocet and
Alprazolam[] about a half dozen times” between July 2011 to October or late November of
2011. He described his involvement in the drug sales, stating that he often “played the
middle man[.]”
Chief Etheredge explained that he typed what the Defendant told him and read it on
a computer screen with the Defendant line-by-line. The Defendant initialed each paragraph
and signed each page of the statement. According to Chief Etheredge, the Defendant did not
appear to be impaired “by any pharmaceuticals, or any other substance, or drug” while giving
his statement. Chief Etheredge admitted that he never asked the Defendant if he had taken
any medication prior to the interview.
The money used during the controlled buy was never recovered.
The Defendant testified that, on February 13, 2011, the day of his arrest and statement,
he had not slept for four nights. According to the Defendant, he suffered from “obstructive
sleep apnea” and had taken two five-milligram Xanax pills around 4:30 a.m. for this
condition. The Defendant said that these pills had been prescribed to him by his doctor and
that he used them as directed. The Defendant remembered a knock at his door on the
morning of February 13th and then remembered waking up “in booking at the county jail”
around lunchtime. He did not remember making a statement and did not remember being
advised of his Miranda rights. The Defendant testified that he could not imagine “mak[ing]
a statement like” the one that was given to Chief Etheredge “in the right state of mind.”
The Defendant testified that he had known Norrod since sixth grade or elementary
school. He stated that he did not call Norrod on July 22 to set up a drug deal. According to
the Defendant, Norrod dropped by that day unannounced around 7:30 or 8:00 p.m. The
Defendant testified that, on that evening, Norrod brought him some Roxicodone, an
oxycodone-containing narcotic, and that he took them from Norrod because he was out of
pain medications. The Defendant stated that Norrod said he was getting the medications
from Sparta, Tennessee. According to the Defendant, Norrod was a “pretty big player in this
narcotics trafficking district” and selling drugs was his livelihood.
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On cross-examination, the Defendant stated that he could not recall that, at a prior
hearing, he was unable to remember the police coming to his home on February 13, 2011.
The Defendant agreed that he had signed the waiver of rights form and initialed the statement
made to Chief Etheredge. The Defendant averred that he had not sold prescription pills.
Based upon the foregoing, the jury found the Defendant guilty as charged. Thereafter,
the trial court sentenced the Defendant as a Range II, persistent offender to seventeen years
for his conviction with twelve years to be served at one hundred percent, followed by service
of the remaining years at thirty-five percent. This appeal followed.
ANALYSIS
On appeal, the Defendant challenges (1) the denial of his motion to suppress his
statement; (2) the chain of custody of the pills; and (3) the enhancement of his sentencing
term. We will address each in turn.
I. Motion to Suppress
On appeal, the Defendant argues that the trial court should have suppressed his
statement to Chief Etheredge because his intoxication rendered the statement involuntary.
Specifically, the Defendant contends that, because he was never asked during the interview
if he was under the influence of drugs or alcohol, and because he had taken Xanax about four
hours prior to the interview, he could not have understood his actions in signing a Miranda
waiver and giving a statement. The State responds that the trial court did not err by refusing
to suppress the statement.
On appellate review of suppression issues, the prevailing party “is entitled to
the strongest legitimate view of the evidence adduced at the suppression hearing as well as
all reasonable and legitimate inferences that may be drawn from that evidence.” State v.
Talley, 307 S.W.3d 723, 729 (Tenn. 2010) (quoting State v. Odom, 928 S.W.2d 18, 23 (Tenn.
1996)). Questions about “the assessment of witness credibility, the weight and value of
evidence, and the resolution of evidentiary conflicts are entrusted to the trial court” as the
trier of fact. State v. Meeks, 262 S.W.3d 710, 722 (Tenn. 2008). The prevailing party “is
entitled to the strongest legitimate view of the evidence adduced at the suppression hearing
as well as all reasonable and legitimate inferences that may be drawn from that evidence.”
Odom, 928 S.W.2d at 23. When the trial court “makes findings of fact in the course of ruling
upon a motion to suppress, those findings are binding on appeal unless the evidence in the
record preponderates against them.” Id. However, a trial court’s conclusions of law along
with its application of the law to the facts are reviewed de novo without any presumption of
correctness. Meeks, 262 S.W.3d at 722. In reviewing a trial court’s ruling on a motion to
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suppress, an appellate court may consider the evidence presented both at the suppression
hearing and at the subsequent trial. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).
“The Fifth Amendment to the United States Constitution provides in part that ‘no
person . . . shall be compelled in any criminal case to be a witness against himself.’” State
v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005) (quoting U.S. Const. amend. V). “Similarly,
Article I, section 9 of the Tennessee Constitution states that ‘in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.’” Id. (quoting Tenn.
Const. art. I, § 9). Notwithstanding, an accused may waive his right against self-
incrimination. Id. (citing Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The accused’s
waiver of his right against self-incrimination under Miranda must be made intelligently,
knowingly, and voluntarily to be held constitutional. Id. (citing Miranda, 384 U.S. at 444).
The United States Supreme Court has interpreted the Fifth Amendment in part to
require that an incriminating statement or confession be freely and voluntarily given in order
to be admissible. This even applies to statements obtained after the proper Miranda warnings
have been issued. Statements and confessions not made as a result of custodial interrogations
must also be voluntary to be admissible. See Arizona v. Fulminante, 499 U.S. 279, 286-88
(1991). In order to be considered voluntary, the statement must not be extracted by “any sort
of threats or violence, nor obtained by any direct or implied promises, however slight, nor
by the exertion of any improper influence.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996) (quoting Bram v. United States, 168 U.S. 532, 542-43). Moreover, due process
requires that confessions tendered in response to either physical or psychological coercion
be suppressed. Rogers v. Richmond, 365 U.S. 534, 540-41 (1961). This has evolved into
the “totality of circumstances” test to determine whether a confession is voluntary. Thacker,
164 S.W.3d at 248 (internal citations omitted). Thus, to determine whether an accused’s
statements were voluntary, the appellate courts review the totality of the circumstances
surrounding the waiver of the right against self-incrimination. Id. at 249 (citing State v.
Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994), abrogated on other grounds by State v.
Saylor, 117 S.W.3d 239 (Tenn. 2003)).
Moreover, the voluntariness test under the Tennessee Constitution has been held to
be more protective of individual rights that the federal test under the United States
Constitution. Id. (citing Stephenson, 828 S.W.2d at 547). For the relinquishment of rights
to be effective, the defendant must have personal awareness of both the nature of the right
and the consequences of abandoning his rights. Id. (citing Stephenson, 828 S.W.2d at 544-
45).
The trial court held a pretrial hearing on the motion and heard testimony from Chief
Etheredge, the Defendant, and Agent Morton, the parties present at the time the Defendant
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gave his statement. Chief Etheredge testified that the Defendant had a high school education,
seemed cognizant at the time of the interview, and did not have slurred speech. Chief
Etheredge stated that he advised the Defendant of his Miranda rights verbally and then
handed the Defendant a written copy and asked him to read it. Both the Defendant and Chief
Etheredge signed the waiver of rights. Chief Etheredge testified that he did not begin
questioning the Defendant until after the Defendant had signed the waiver. Agent Morton,
who witnessed the waiver and subsequent confession, testified that the Defendant “did not
appear to be under the influence of any medications or substances at all” and cited his
seventeen years’ experience in law enforcement and nursing education in judging the
Defendant’s demeanor. The Defendant claimed that he only remembered waking up at the
police station around lunchtime and had no recollection of giving a statement. The court
found that the Defendant’s confession was given voluntarily and denied the motion to
suppress. The trial court reasoned, “[I]t’s pretty clear that it was a voluntary statement.”;
“Chief Etheredge and Agent Morton] [have] a lot of experience combined and a lot of
interviews.”; “There’s no dispute you signed these documents. You admitted to that.”; and
“[There were] [n]o indications of your inability to understand what was going on, other than
from your own testimony, and I just don’t think that is accurate.”
The Defendant cites State v. David Bornfriend, No. 02C01-9708-CC-00297, 1998 WL
641336 (Tenn. Crim. App. Sept. 21, 1998), in which the State appealed from a judgment of
the trial court to suppress statements made by the defendant while he was in the hospital and
being given intravenous narcotic pain medication after he was burned in a fire. The court
found that the defendant was so impaired by the IV narcotics that his statements to the police
could not have been “the product of a rational intellect and a free will,” and thus, his
statements were properly suppressed. Id. at *4-5 (citing Vandergriff v. State, 409 S.W.2d
370, 373 (Tenn. 1966); State v. Robinson, 622 S.W.2d 62, 67 (Tenn. Crim. App. 1980)).
Generally, a confession is admissible even though a defendant is under the influence
of alcohol or narcotic drugs “if … the accused was capable of making a narrative of past
events or of stating his own participation in the crime.” State v. Green, 613 S.W.2d 229, 232
(Tenn. Crim. App. 1980). The Defendant provides no authority, and we know of none, that
requires that he be specifically asked by the interrogating officers whether he is under the
influence of drugs or alcohol. According to Chief Etheredge’s testimony, the Defendant was
able to give a statement that described “how he would sell drugs.” At trial, Chief Etheredge
stated that he typed what the Defendant told him and read it on a computer screen with the
Defendant line-by-line; the Defendant then initialed each paragraph and signed each page of
the statement. The statement and waiver of rights are both signed by the Defendant, Chief
Etheredge, and Agent Morton. The Defendant did not seem impaired or under the influence
of any intoxicant according to Chief Etheredge and Agent Morton. The trial court accredited
their testimony.
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We conclude that the evidence presented at trial shows that, under the totality of the
circumstances surrounding the interview, the Defendant voluntarily, knowingly, and
understandingly waived his Miranda rights and gave a confession. See, e.g., State v. Kewan
Callicutt, No. W2011-02516-CCA-R3-CD, 2013 WL 3455643, at *5 (Tenn. Crim. App. July
5, 2013) (evidence did not preponderate against the trial court’s accreditation of detective’s
testimony that the defendant did not appear under the influence of any drug or intoxicant).
Accordingly, the trial court’s denial of the motion to suppress is affirmed.
II. Chain of Custody
The Defendant contends that the trial court erred by admitting the pills when the State
did not sufficiently establish the chain of custody. Specifically, he contests the chain of
custody because “[t]estimony shows that there were numerous chances for the pills . . . to be
tampered with, swapped, lost, and replaced with no physical paperwork showing who was
in possession of them at given time” while in the possession of the Livingston Police
Department. The State avers that the trial court did not err by refusing to exclude the
evidence.
The determination of whether the State has properly established the chain of custody
of evidence is a matter left to the sound discretion of the trial court and will not be reversed
absent an abuse of that discretion. See State v. Cannon, 254 S.W.3d 287, 295 (Tenn. 2008).
Generally, “[a] trial court abuses its discretion when it applies incorrect legal standards,
reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the
proof, or applies reasoning that causes an injustice to the complaining party.” State v.
Phelps, 329 S.W.3d 436, 443 (Tenn. 2010). Tennessee Rule of Evidence 901(a) provides:
“[t]he requirement of authentication or identification as a condition precedent to admissibility
is satisfied by evidence sufficient to the court to support a finding by the trier of fact that the
matter in question is what its proponent claims.” Our supreme court has held, “‘[A]s a
condition precedent to the introduction of tangible evidence, a witness must be able to
identify the evidence or establish an unbroken chain of custody.’” Cannon, 254 S.W.3d at
296 (quoting State v. Scott, 33 S.W.3d 746, 760 (Tenn. 2000)). “The purpose of the chain
of custody is to ‘demonstrate that there has been no tampering, loss, substitution, or mistake
with respect to the evidence.’” Scott, 33 S.W.3d at 760 (quoting State v. Braden, 867 S.W.2d
750, 759 (Tenn. Crim. App. 1993)). The State should sufficiently prove each link in the
chain of custody, but the State is not required to prove the identity of tangible evidence
beyond all possibility of doubt nor must it exclude every possibility of tampering. Cannon,
254 S.W.3d at 296. In addition, the State’s failure to call as a witness each person who
handled an item does not necessarily preclude the admission of the evidence. Id.
“Accordingly, when the facts and circumstances that surround tangible evidence reasonably
establish the identity and integrity of the evidence, the trial court should admit the item into
evidence.” Id. The trial court should not admit an item into evidence if the State fails to
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provide sufficient proof of the chain of custody, unless the identity and integrity of the item
can be established by other means. Id.
The Defendant challenges the actions of Chief Etheredge, evidence technician
Rhoton, Det. Ledbetter, and Det. Boswell, asserting that Livingston Police Department
“office personnel are free to take evidence as they please without accountability.” The trial
court determined that the chain of custody had been sufficiently established and admitted the
pills as evidence.
In this case, Chief Etheredge testified that he received the pills when Norrod and
Officer Neff returned to his residence following the controlled buy. Chief Etheredge then
sealed the pills in a plastic bag and placed them in a safe in the detectives’ office. Det.
Boswell stated that he retrieved the pills and prepared the TBI Request for Examination form
and an Evidence Receipt. Det. Boswell explained that he made a typographical error on the
Evidence Receipt. Det. Boswell stated that, after preparing these documents, he took the
pills to the evidence locker, which only Rhoton could open. Rhoton removed the pills on
August 18, 2011, and prepared a narrative sheet. The pills were then delivered to the TBI
lab by Det. Ledbetter, who signed the Request for Examination form. Following the TBI
analysis, Rhoton picked up the pills and placed them in the evidence room at the police
department. The Defendant makes no challenge to the evidence while in the custody of the
TBI. Based on the record before us, we conclude that the trial court did not abuse its
discretion in ruling that the State sufficiently established the chain of custody.
III. Sentencing
The Defendant contends that the trial court’s sentencing of seventeen years’
incarceration is excessive. The Defendant notes that his two prior felony convictions
occurred before 1992, that he has not been convicted of any other felonies since then, that
he does not have a violent criminal history, and that his conduct neither caused nor threatened
serious bodily injury. He extrapolates that his seventeen-year sentence “does not serve the
purpose the legislature intended.” The State responds that the seventeen-year sentence was
proper.
At the sentencing hearing, Robbie Phillips, an employee with the Tennessee
Department of Correction, Division of Probation and Parole, testified that he had prepared
a presentence report on the Defendant. The report included the Defendant’s prior convictions
for the sale of Schedule II drugs on January 8, 1990, and January 10, 1990, for which the
Defendant was convicted on August 13, 1991. The Defendant had prior convictions for
driving under the influence, domestic violence, casual exchange, and several traffic
violations. The Defendant had previously been granted pretrial diversion in 1990 on a
burglary charge. Mr. Phillips also testified that the Defendant admitted to using marijuana
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and hydrocodone while released on bond after the trial and before sentencing and executed
a signed statement to that effect.
Officer Michael Wright, a probation officer with Community Probation Services and
the Defendant’s supervising officer, testified that the Defendant pled guilty on February 7,
2011, to the simple possession of a Schedule II drug. He was granted probation for eleven
months and twenty-nine days, which would have ended February 5, 2012, according to
Officer Wright. The Defendant was indicted in the present matter one day after his probation
expired from that conviction. The date of the Schedule II delivery offense in this case, July
22, 2011, would have been a probation violation, if Officer Wright had known about it.
Chief Etheredge testified that two other indictments remained open on the Defendant
for Schedule II drug sales. The Defendant had also been charged with TennCare fraud
because he had obtained some of his prescription narcotics while on TennCare. Chief
Etheredge also stated that the Defendant failed to appear for his first sentencing hearing in
this matter on August 15, 2012, and a capias warrant was issued. Ultimately, Chief
Etheredge and other officers found the Defendant in Indiana. When found, the Defendant
had with him two forms of identification, including his own driver’s license and the driver’s
license of an individual who drove the Defendant to Indiana. He also had the birth certificate
of his deceased brother-in-law.
Det. Franklin testified that he participated in another undercover purchase of
oxycodone from the Defendant on October 15, 2011. This transaction likewise occurred at
the Defendant’s residence on Zachary Street. Det. Franklin provided the details surrounding
that controlled buy. According to Det. Franklin, this allegation was being pursued in a
separate charge.
Det. Boswell testified that he participated in another undercover purchase of
oxycodone from the Defendant on September 19, 2011, in a McDonald’s parking lot. Det.
Boswell provided the details of this buy, including that the transaction again occurred is
within 1000 feet of school. This allegation was also being pursued in a separate charge.
Emily Thrasher, the Defendant’s daughter, testified that the Defendant was a good
person; that his mother was sick, and he needed to be out of prison to take care of her; and
that the he had provided for his family. According to Ms. Thrasher, “[fourteen] years [was]
. . . a little much” for the Defendant.
The trial court found that the Defendant was a Range II, persistent offender for a Class
B felony; therefore, he was subject to a sentence between twelve and twenty years. See
Tenn. Code Ann. § 40-35-112(b)(2). The trial court concluded that the following
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enhancement factors applied: (1) The Defendant had a previous history of criminal
convictions or criminal behavior in addition to those necessary to establish the range; (8) The
Defendant, before sentencing, failed to comply with the conditions of a sentence involving
release into the community; and (13) At the time the felony was committed, the Defendant
was released on probation. See Tenn. Code Ann. § 40-35-114. The trial court concluded that
one mitigating factor applied, that the Defendant’s criminal conduct neither caused nor
threatened serious bodily injury. See Tenn. Code Ann. § 40-35-113. Additionally, the trial
court noted that Overton County faced a “huge problem” with individuals filling
prescriptions given from a doctor for narcotics then reselling them.
Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the
nature and characteristics of the criminal conduct involved; (e) evidence and information
offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b). When an accused challenges the length and
manner of service of a sentence, this court reviews the trial court’s sentencing determination
under an abuse of discretion standard accompanied by a presumption of reasonableness.
State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). This court will uphold the trial court’s
sentencing decision “so long as it is within the appropriate range and the record demonstrates
that the sentence is otherwise in compliance with the purposes and principles listed by
statute.” Id. at 709-10. Those purposes and principles include “the imposition of a sentence
justly deserved in relation to the seriousness of the offense,” Tennessee Code Annotated
section 40-35-102(1), a punishment sufficient “to prevent crime and promote respect for the
law,” Tennessee Code Annotated section 40-35-102(3), and consideration of a defendant’s
“potential or lack of potential for . . . rehabilitation,” Tennessee Code Annotated section 40-
35-103(5). State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2007). Moreover, appellate courts
may not disturb the sentence even if we had preferred a different result. See id. at 346. 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 (2010), Sentencing Comm’n Cmts.;
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The Defendant had two prior convictions for felonies that were also Class B offenses;
the Defendant makes no real argument that he was improperly sentenced as a Range II,
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persistent offender.2 The trial court applied enhancement factor (1) because, in addition to
those prior convictions, the Defendant had more recent convictions and charges. He also
admitted to using drugs while awaiting sentencing. The trial court stated that the Defendant
did not comply with the terms of his release because he failed to appear for sentencing and
had to be arrested before returning to be sentenced, thus, determining that factor (8) was
applicable. The trial court stated that factor (13) was an applicable enhancing factor because
the Defendant committed this crime while on probation for another offense. The trial court
also concluded that mitigating factor (1) applied. The court explained that “selling six pills
… would not seem to be a serious offense, in and of itself, except that we are awash with the
sale of drugs of that nature in this county . . . . We should punish to provide a general
deterrent to others . . . [and] to restrain people with a lengthy history of criminal conduct.”
See Tenn. Code Ann. § 40-35-103(1)(B) (stating that a trial court may consider whether
confinement will have a deterrent effect on others). The trial court stated that less restrictive
measures than incarceration had previously been applied to the Defendant and had been
unsuccessful. See Tenn. Code Ann. § 40-35-103(1)(C).
After reviewing the record and applicable authorities, we conclude that the trial court
did not abuse its discretion in sentencing the Defendant to seventeen years. The trial court
applied three enhancing factors and one mitigating factor to the Defendant’s sentence, as well
as general information about a drug problem in Overton County. Because the application of
enhancement and mitigating factors to adjust a sentence was rendered advisory by the 2005
amendments, we reiterate that the trial court may set a sentence anywhere within the
applicable range so long as the sentence is consistent with the principles and purposes of the
Act, regardless of the presence or absence of mitigating and enhancement factors. Based on
our review, we conclude that the record supports the trial court’s discretionary decision to
impose an enhanced sentence of seventeen years. The sentencing decision is affirmed.
CONCLUSION
In sum, we conclude that the trial court did not err in denying the Defendant’s motion
to suppress, that the evidence is sufficient to sustain the Defendant’s conviction, and that the
imposition of an enhanced sentencing term was proper. Accordingly, we affirm the judgment
of the trial court.
________________________________
D. KELLY THOMAS, JR., JUDGE
2
This court has previously held that “[t]here appears to be no doubt that the legislature intended to permit
consideration of all prior felony convictions occurring during the defendant’s life” in classifying a
defendant’s sentencing range. State v. Wright, 836 S.W.2d 130, 136 (Tenn. Crim. App. 1992).
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