State of Tennessee v. Brandon Thomas ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 14, 2007
STATE OF TENNESSEE v. BRANDON D. THOMAS
Direct Appeal from the Circuit Court for Warren County
No. F-10137 Larry B. Stanley, Jr., Judge
No. M2007-00440-CCA-R3-CD - Filed March 25, 2008
The defendant, Brandon D. Thomas, was convicted of one count of resisting arrest, a Class B
misdemeanor; and three drug offenses including possession with intent to sell a Schedule II
controlled substance (cocaine), a Class B felony; possession with intent to sell a Schedule III
controlled substance (dihydrocodeinone), a Class D felony; and simple possession of marijuana, a
Class A misdemeanor. He was sentenced to ten years in the Tennessee Department of Correction
for the cocaine offense, eleven months and twenty-nine days on each of the other drug offenses and
six months for the conviction for resisting arrest, with all the sentences to run concurrently for a total
effective sentence of ten years as a Range I, standard offender. On appeal, he argues that the
evidence was insufficient to support his cocaine conviction and that he was sentenced improperly.
After careful review, we find that the defendant was sentenced improperly but not for the issues on
which he appeals. The sentence of eleven months and twenty-nine days for the Class D felony
conviction is illegal because the minimum sentence for a Class D felony is two years. We remand
to the trial court for entry of a corrected judgment reflecting the minimum sentence and affirm the
trial court as to the other raised issues.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part
and Remanded for Entry of Corrected Judgment
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
JERRY L. SMITH , JJ., joined.
Dan Bryant, District Public Defender, for the appellant, Brandon D. Thomas.
Robert E. Cooper, Jr., Attorney General and Reporter; Elizabeth B. Marney, Senior Counsel; and
Lisa Zavogiannis, District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant was arrested when a narcotics investigator with the McMinnville Police
Department went to the defendant’s apartment to execute a capias. The defendant attempted to
escape from the officer but was subdued with mace. When he was arrested, he was in possession
of a bag containing cocaine. Additionally, during the defendant’s booking, police discovered
marijuana and hydrocodone pills in his pocket. The defendant’s neighbor testified for the State
regarding the defendant’s resistance of the initial arrest.
The defendant testified that the cocaine did not belong to him and that he had no recollection
of having the pills and marijuana. He also testified that the police lied when they testified that they
found the hydrocodone and marijuana on the defendant.
Analysis
Initially, we note that the defendant’s brief is void of citation to any authority to support his
arguments. Tennessee Court of Criminal Appeals Rule 10(b) mandates that an issue is waived if the
defendant fails to cite authority to support his or her argument. See also State v. Schaller, 975
S.W.2d 313, 318 (Tenn. Crim. App. 1997). Because the defendant failed to cite to any authority,
these issues should be waived. However, in the interest of justice, we will review the issues as
presented.
First, the petitioner argues that the evidence was insufficient to support the jury verdict.
When an accused challenges the sufficiency of the evidence, this court must review the record to
determine if the evidence adduced during the trial was 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 predicated upon direct evidence, circumstantial evidence, or a combination of direct
and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim. App. 1996).
In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). 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 (1956). To the contrary, this court is required to afford the
State 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. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003).
The trier of fact, not this court, resolves 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.
Id. In State v. Grace, the Tennessee Supreme Court stated that “[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.” 493 S.W.2d 474, 476 (Tenn. 1973).
Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.
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Specifically, the defendant argues that the proof was insufficient to show he possessed the
cocaine with the intent to sell it. Instead, he argues that he should have been convicted of simple
possession of cocaine. Tennessee Code Annotated section 39-17-419 permits an inference based on
the amount of the controlled substance possessed by an offender, along with other facts surrounding
the arrest, that the substance was possessed for the purpose of selling. The defendant was found with
18.8 grams of cocaine, which is considerably more than the 0.5 gram threshold. Additionally, the
cocaine was contained in multiple plastic bags. We conclude that the evidence was sufficient to
support the jury verdict.
Next, the defendant argues that he was improperly sentenced. Specifically, he argues that
a sentence of eight years of probation with some time in the county jail would have been a more
appropriate sentence. Again, instead of citing to authority to support his argument, the defendant
provides only the bare conclusion that, in his opinion, the sentence is inappropriate. The court
sentenced the defendant to ten years in confinement as a Range I, standard offender based on his
prior history of criminal convictions, which includes three convictions for evading arrest; multiple
violations of prior probations; and convictions for marijuana possession, escape, giving false
information to a police, and contributing to the delinquency of a minor. Additionally, he was on
probation at the time he was charged for the underlying offenses and had additional charges pending
at the time of sentencing. We conclude that the trial court did not err in sentencing the defendant
as to the sentencing issue that he has raised on appeal. However, we conclude that the trial court
improperly sentenced the defendant to an eleven month and twenty-nine day sentence for his Class
D felony conviction. We remand to the trial court for entry of a corrected judgment reflecting the
minimum sentence of two years to be served concurrent to the other sentences.
Conclusion
Based on the foregoing and the record as a whole, we remand to the trial court for entry
of a corrected judgment and affirm the trial court as to the other raised issues.
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JOHN EVERETT WILLIAMS, JUDGE
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