State of Tennessee v. Jadarius Sankevious Foster ( 2021 )

03/26/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 4, 2020 Session
STATE OF TENNESSEE v. JADARIUS SANKEVIOUS FOSTER
Appeal from the Circuit Court for Madison County
No. 19-788 Roy B. Morgan, Jr., Judge
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No. W2020-00349-CCA-R3-CD
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The Defendant, Ladarius Sankevious Foster, was convicted by a Madison County Circuit
Court jury of failure to maintain lane, possession of drug paraphernalia, and theft of
property, and the trial court imposed an effective sentence of eleven months and twenty-
nine days, with the Defendant to serve ten days in jail and the remainder of his sentence
on community corrections. See Tenn. Code Ann. §§ 55-8-123, 39-17-425(a), 39-14-103.
On appeal, the Defendant argues: (1) the evidence is insufficient to sustain his convictions
for possession of drug paraphernalia and theft of property, and (2) the trial court failed to
conduct an independent assessment of the fines fixed by the jury in this case. After review,
we affirm the trial court’s judgments.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and J. ROSS DYER, J., joined.
Jessica F. Butler, Assistant Public Defender, Tennessee District Public Defenders
Conference, Franklin, Tennessee (on appeal); George Morton Googe, District Public
Defender; and Jeremy B. Epperson, Assistant Public Defender, Jackson, Tennessee (at
trial), for the Defendant-Appellant, Jadarius Sankevious Foster.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody S. Pickens, District Attorney General; and Michelle Shirley,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
In September 2019, the Madison County Grand Jury indicted the Defendant for
failure to maintain lane in Count 1, possession of drug paraphernalia in Count 2, theft of
property in Count 3, and unlawful possession of a firearm in Count 4. Two days prior to
trial, the trial court, upon motion by the State, entered an order of nolle prosequi on Count
4.1
Trial. At the February 6, 2020 trial, John Whitney Hughes Tomlinson testified that
he was the owner of J & H Gun Store, also known as Crossroads Outdoor, in Corinth,
Mississippi. On August 30, 2018, Tomlinson’s store was burglarized, and ten guns were
stolen, including a nine millimeter Glock 19 semi-automatic pistol that he received in his
store on August 21, 2018. Video surveillance of the burglary showed “two individuals
coming in with gloves, jumpsuit[,] and face mask on.” Tomlinson said that after
discovering the burglary, he completed a federal firearms theft/loss report, admitted as an
exhibit, that described and listed the serial number for each of the guns that had been stolen,
and he submitted this form to his local police department as well as the local Alcohol,
Tobacco, and Firearms office. Tomlinson acknowledged that it would have been possible
for one of the burglars to sell one of the stolen guns to someone else, who would not
necessarily know the gun was stolen.
Tomlinson identified a receipt showing that a customer had traded the Glock 19
pistol, which meant that Tomlinson, as the owner of the store, became the legal owner of
that pistol. Tomlinson said he gave the customer $465 for it but would have “re-stickered”
the Glock 19 for “around [$]550.” He confirmed that he had been compensated for the loss
of this pistol by his insurance company. Tomlinson asserted that he never gave anyone
consent to take, keep, possess, or exercise control over the Glock 19 handgun.
Deputy Zach Fitzgerald of the Madison County Sheriff’s Office testified that he and
Deputy Jason Wooley were patrolling Highway 18, a two-lane road also known as Bolivar
Highway, the night of February 23, 2019. Deputy Fitzgerald said that his patrol cruiser
was not equipped with a dashboard camera and that he was not wearing a body camera at
the time he stopped the Defendant. He explained that while deputies in his office were
allowed to purchase their own body cameras, he was not issued a body camera or required
to wear one by the sheriff’s office. He stated that he and Deputy Wooley were riding in
the same cruiser the night they encountered the Defendant.
Deputy Fitzgerald said that he stopped the Defendant, who was driving a burgundy
Nissan Maxima, just after 11:00 p.m. He stated that as he was travelling behind the
Maxima, the Defendant “crossed over the fog line on the road which is commonly
associated with the white line close to the side of the road” and then “he drifted over the
white line, he came back and then went over the center line of Highway 18 and then got
back in his lane[.]” Deputy Fitzgerald clarified that the location where the Defendant
1
Notably, the defense did not file a motion to suppress the evidence challenging the legality of the
traffic stop or the search in this case.
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“swerved” was a “straightway” area of the road and that no other traffic was affected by
the Defendant’s driving. He said that it was “no more than a minute” between the
Defendant’s infraction and the traffic stop.
Deputy Fitzgerald said that he initiated the traffic stop by activating his blue lights
and radioing his location, and the Defendant came to a stop. At the time, Deputy Fitzgerald
could tell that the Defendant had a passenger with him in the vehicle. Upon stopping his
patrol cruiser, Deputy Fitzgerald approached the driver’s side of the Defendant’s car,
identified himself, and told the Defendant why he stopped him. He requested the
Defendant’s identification and asked him if there was a reason he had just swerved, and
the Defendant said that “his vehicle was out of line[.]” As he was talking to the Defendant,
Deputy Fitzgerald “scanned the back seat [of the Defendant’s vehicle] with [his] flashlight
and noticed that there was a digital scale behind the passenger’s seat in the floorboard[.]”
Before returning to his cruiser, Deputy Fitzgerald asked the Defendant if he could ask him
some additional questions after receiving the Defendant’s identification and the female
passenger’s identification, and the Defendant agreed. Deputy Fitzgerald said that because
“officer safety is key,” he asked the Defendant, “Are there any firearms in the car?” and
then told him, “You’re allowed to have them unless you’re a convicted felon. We just like
to know about it for our safety and yours[.]” The Defendant replied that there were no
guns in his car. Deputy Fitzgerald then asked the Defendant if there were any narcotics in
the vehicle because he had “already seen the digital scale behind the passenger’s seat.”
The Defendant responded that there were no narcotics in his car. Next, Deputy Fitzgerald
asked the Defendant if he was on “probation or parole for anything[,]” and the Defendant
said “he was not.” At that point, Deputy Fitzgerald returned to his cruiser and “ran a
driver’s license check” on the Defendant, “check[ing] him for warrants out of Madison
[County] and where he’s from, Hardeman County,” and then checking the Defendant’s
passenger “to make sure she was clear of warrants[.]” He stated that the Defendant and his
passenger had no outstanding warrants.
Deputy Fitzgerald returned to the Defendant’s car, informed the Defendant that he
was “going to give him a warning citation for . . . driving outside the lines,” and asked the
Defendant to exit the vehicle. He said that after he told the Defendant that he was just
going to give him a warning citation, the Defendant did not calm down and “stayed very
nervous.” As the Defendant exited his vehicle, Deputy Fitzgerald told him, “Hey, I’m just
going to pat you down for weapons” for the purpose of officer safety. Deputy Fitzgerald
said he “patted [the Defendant] down[,] and he was clear” and then he “asked [the
Defendant] if [he] could search his car.”
Deputy Fitzgerald said that when he asked if he could search the Defendant’s
vehicle, the Defendant refused to give consent. He told the Defendant, “Hey, man, I
already see the digital scale,” and then asked him, “Is there anything illegal in your car?”
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and the Defendant admitted, “There’s enough marijuana for a blunt in the ashtray[.]”
Deputy Fitzgerald said that the Defendant’s admission regarding the marijuana gave him
probable cause to search the Defendant’s vehicle, even though the Defendant had denied
consent for him to search. Deputy Fitzgerald told the Defendant, “Look, I’m not worried
about a little bit of weed,” and asked him, “Is there anything else inside the vehicle?” He
said the Defendant was “still very nervous” and “looked down” and “was fidgeting with
his hands” before the Defendant stated, “[N]o.” Deputy Fitzgerald said that because the
Defendant was still acting nervous, he asked, “Is there a gun in this car?” and the Defendant
finally admitted that he had a gun in his vehicle. He said that during this entire
conversation, the Defendant’s voice “was shaky.”
Deputy Fitzgerald said that at that point, he asked the passenger to exit the car to
ensure officer safety, and then he searched the Defendant’s vehicle. During this search, he
found “marijuana . . . , just enough for a blunt[,]” as the Defendant had said. In addition,
Deputy Fitzgerald observed the butt of a magazine “in between the driver’s seat and the
center console[,]” and noted that it had been “shoved down pretty far[.]” He retrieved it
and determined that it was a “Glock 19 Generation 5 with a 31-round mag[azine].” He
said this pistol had “one round chambered” and “had two extra rounds” in the magazine.”
Deputy Fitzgerald identified the digital scale that he found on the rear floorboard of
the Defendant’s vehicle, which was admitted as an exhibit. When he was asked, based on
his education, training and experience, about what made this digital scale drug
paraphernalia rather than just a kitchen gadget, Deputy Fitzgerald replied:
These are used to—commonly associated with weighing narcotics. In
the State of Tennessee, based on your amount of weight with the drug
depends on if it’s a misdemeanor or a felony. With marijuana, anything over
14.5 grams is a felony. So it’s commonly associated that you would weight
your narcotics. Also, the weight depends on how much it costs. So that’s
[what] makes [the digital scale] drug paraphernalia.
He also asserted that drugs are commonly weighed and then packaged accordingly.
Deputy Fitzgerald reiterated that in addition to the digital scale, he also recovered
marijuana from the Defendant’s ashtray and the Glock handgun from inside the
Defendant’s car. Deputy Fitzgerald next identified “a picture that [he] took of the handgun,
the marijuana[,] and the magazine,” and this photograph, which depicted a substance
wrapped in plastic as well as a Glock pistol and magazine lying on a car seat, was admitted
at trial. Deputy Fitzgerald said he rendered the pistol safe by locking back the slide for the
purpose of “officer safety” and then moved it to the passenger seat with the marijuana
before taking the photograph. He explained that the “digital scale [was] not in this picture”
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because “[i]t was still behind the passenger’s seat” but that “everything else” he found was
depicted in the photograph he took. When asked about what happened to the marijuana
depicted in the photograph, Deputy Fitzgerald stated:
I did not charge [the Defendant] with the marijuana. I told him on the
scene, I said, “Look, I’m not going to add insult to injury.” And if I’ve said
this once, I’ve said it a thousand times. I said, “God has given me a lot of
grace in my life, so I’m going to give you some tonight,” and [the Defendant]
was allowed to dispose of the marijuana in the grass on the side of the road.
He said that while substances appearing to be marijuana are commonly sent to the state lab
to be tested, he never sent the substance he recovered from the Defendant’s vehicle to a lab
because he allowed the Defendant to dispose of it.
Deputy Fitzgerald identified the Glock 19 that he recovered from the Defendant’s
vehicle, and this pistol was admitted into evidence. He said that after he rendered the pistol
safe, he asked the Defendant about it because he was “trying to figure out why [the pistol]
was shoved so far down into the seat and why [the Defendant] was nervous[.]” He asked
the Defendant, “Hey, is this gun stolen?” and the Defendant replied, “It’s not hot. It’s not
hot.” Nevertheless, when Deputy Fitzgerald ran the pistol’s serial number through the
crime information database, he found that the pistol had been reported as stolen. He stated
that as result of these events, he took the Defendant into custody that night.
Deputy Jason Wooley, a reserve deputy for the Madison County Sheriff’s Office,
testified that on the night of February 23, 2019, he was on patrol with Deputy Fitzgerald
on Highway 18 in south Jackson. They noticed “a dark colored Nissan Maxima” pass by
with the Defendant “kind of leaned back or pushed back in the seat in a way to kind of hide
his face from us by the center post,” which was “what made us draw our attention to him.
Deputy Wooley confirmed that the Defendant “was not maintaining his lane” and “was
drifting over the fog line and across the center line,” which made Deputy Fitzgerald initiate
a traffic stop. As Deputy Fitzgerald approached the driver’s side of the vehicle, Deputy
Wooley approached the vehicle from the passenger side, which enabled him to closely
observe the Defendant and the female passenger as Deputy Fitzgerald talked to the
occupants of the vehicle and obtained their driver’s licenses. Deputy Wooley said that he
was actually standing behind the center post of the Defendant’s car, where he could look
through the rear passenger window to see what the Defendant and the passenger were
doing. When Deputy Fitzgerald returned to his cruiser to check if the Defendant and his
passenger had any outstanding warrants, Deputy Wooley saw the Defendant “checking his
rearview mirror to make sure [Deputy Fitzgerald] wasn’t coming back, and [the Defendant]
took his right hand and started trying to push something between the driver’s seat and
center console of the car.” Deputy Wooley added, “I couldn’t see what it was, but [the
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Defendant] was . . . making sure whatever it was was down below the seat where nobody
could see it.” He said that when Deputy Fitzgerald asked the Defendant and the passenger
to exit the vehicle, he got the passenger out and took her to the back of the Defendant’s
vehicle. As he remained with the passenger, the Defendant was put in handcuffs and placed
in the back of the patrol cruiser while Deputy Fitzgerald searched the Defendant’s vehicle.
The Defendant did not testify at trial and did not call any witnesses to testify on his
behalf.
At the conclusion of trial, the jury convicted the Defendant as charged in Counts 1,
2, and 3. The jury did not fix any fine in Count 1 but fixed $150.00 fine for the possession
of drug paraphernalia conviction in Count 2 and a $500.00 fine for the theft of property
conviction in Count 3.
Sentencing. At the beginning of the sentencing hearing, the trial court recognized
that these convictions were “all misdemeanor charges,” that the Defendant had “no prior
criminal history,” and that “there were really no aggravating circumstances at the time of
the stop and the arrest.” The court also noted that “[t]he jury ha[d] answered the question
on fines, as the Defendant had the right to have them do.” The court said it was going to
consider full suspension of the Defendant’s sentence with proper supervision, but it wanted
the Defendant to have a drug screen that day.
When the trial court asked the Defendant, who was twenty years old, if he had a job,
the Defendant stated that he had “a interview Monday in Murfreesboro, Tennessee,” and
the court replied, “Of course, I wish you luck with [the interview], but that’s not a job.”
The Defendant explained that he was interviewing in Murfreesboro because he had a
girlfriend who lived there, and defense counsel informed the court that the Defendant was
currently living with his mother in Bolivar, Tennessee. In response to questioning from
the trial court, the Defendant stated that he had been previously employed at two different
jobs for approximately three weeks each. The trial court asked if the Defendant would
have a place to live if he were offered the job in Murfreesboro, and the Defendant replied
that he did have a place to live, although he currently lived at home with his mother in
Bolivar.
During the hearing, Deputy Fitzgerald stated that the Glock pistol at issue in this
case had been “used in a shooting the night before [the Defendant’s arrest]” and that the
“[b]allistics did match.” The State offered that the Defendant “was scheduled to go to the
Hardeman County grand jury” and that although she was unsure “about the status of that
indictment, . . . the pending charges were two counts of attempted murder.”
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During a recess in the sentencing hearing, the Defendant tested negative for drugs.
The trial court stated that “[t]he fines [fixed by the jury] will stand.” The court then noted:
[The Defendant] asked for a jury trial, and that included fine assessment, so
we do have the fines of $500 on the theft and $150 on the paraphernalia, plus
his jury costs and court costs. So, he going to owe a lot of money. He must
set up payments. He doesn’t have a job.
The court informed the Defendant that “the minimum is $100 per month, within 30 days
of today” but cautioned, “You’ll never get everything paid off in 11 months and 29 days if
you don’t pay more than $100 a month, but that’s the minimum payment.” The Defendant
acknowledged that he understood about the fines and costs. The trial court ordered the
Glock pistol “forfeited to the law enforcement agency that took it at the time of his arrest[,]”
and noted that this pistol was “evidence in another crime at this point that has allegedly
occurred, the night before [the Defendant was arrested in this case.]”
At the conclusion of the hearing, the trial court imposed concurrent sentences of
thirty days for the failure to maintain lane conviction in Count 1 and eleven months and
twenty-nine days for each of the convictions for possession of drug paraphernalia and theft
of property in Counts 2 and 3. Although the trial court ordered the sentences in Count 1
and Count 3 served on community corrections, the court in Count 2 ordered the Defendant
to serve ten days of “shock incarceration day for day” in jail with the remainder of the
sentence served on community corrections. When the Defendant stated that he had already
served “over 10 days” in jail, the trial court noted, “He might have his credit,” and then
assured the Defendant, “They’ll give you your credit when you get down there.”
Thereafter, the Defendant filed a timely notice of appeal.
ANALYSIS
I. Sufficiency of the Evidence. The Defendant argues that the evidence is
insufficient to sustain his convictions for possession of drug paraphernalia and theft of
property. The State responds that the proof is sufficient to support both convictions. We
agree with the State.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
When reviewing the sufficiency of the evidence, this court must “determine the elements
that the State must prove to establish the offense” and then “analyze all of the evidence
admitted at trial in order to determine whether each of the elements is supported by
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adequate proof.” State v. Stephens, 521 S.W.3d 718, 723-24 (Tenn. 2017).
“Appellate courts evaluating the sufficiency of the convicting evidence must
determine ‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691
(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of
the witnesses, determine the weight given to witnesses’ testimony, and reconcile all
conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing
Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)); see State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997) (“Questions concerning the credibility of 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.”). Moreover, the jury determines the weight to
be given to circumstantial evidence, and the inferences to be drawn from this evidence, and
the extent to which the circumstances are consistent with guilt and inconsistent with
innocence, are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State
v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the
evidence, this court “neither re-weighs the evidence nor substitutes its inferences for those
drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659).
A. Possession of Drug Paraphernalia. First, the Defendant argues that the
evidence is insufficient to sustain his conviction for possession of drug paraphernalia. He
claims that his possession of a digital scale, without proof that it was used in connection
with illegal drugs, is not proof of possession of drug paraphernalia.
Tennessee Code Annotated section 39-17-425, which defines the offense of
possession of drug paraphernalia, provides in pertinent part:
[I]t is unlawful for any person to use, or to possess with intent to use, drug
paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture,
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compound, convert, produce, process, prepare, test, analyze, pack, repack,
store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the
human body a controlled substance or controlled substance analogue in
violation of this part.
Tenn. Code Ann. § 39-17-425(a)(1).
In addition, drug paraphernalia is defined as follows:
“Drug paraphernalia” means all equipment, products and materials of any
kind which are used, intended for use, or designed for use in planting,
propagating, cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting, inhaling or
otherwise introducing into the human body, a controlled substance as defined
in subdivision (4). “Drug paraphernalia” includes, but is not limited to:
(A) Isomerization devices used, intended for use, or designed for use in
increasing the potency of any species of plant that is a controlled substance;
(B) Testing equipment used, intended for use, or designed for use in
identifying, or in analyzing the strength, effectiveness or purity of controlled
substances; and
(C) Objects used, intended for use, or designed for use in ingesting, inhaling,
or otherwise introducing marijuana, marijuana concentrates, marijuana oil,
cocaine, hashish, or hashish oil into the human body, such as:
(i) Metal, acrylic, glass, stone, or plastic pipes with or without
screens, permanent screens, hashish heads, or punctured metal
bowls;
(ii) Water pipes;
(iii) Carburetion tubes and devices;
(iv) Smoking and carburetion masks;
(v) Chamber pipes;
(vi) Carburetor pipes;
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(vii) Electric pipes;
(viii) Chillums;
(ix) Bongs; and
(x) Ice pipes or chillers[.]
Id. § 39-17-402(12).
As to the determination of whether an object is drug paraphernalia, Code section
39-17-424 provides:
In determining whether a particular object is drug paraphernalia as defined
by § 39-17-402, the court or other authority making that determination shall,
in addition to all other logically relevant factors, consider the following:
(1) Statements by the owner or anyone in control of the object concerning its
use;
(2) Prior convictions, if any, of the owner or of anyone in control of the object
for violation of any state or federal law relating to controlled substances;
(3) The existence of any residue of controlled substances on the object;
(4) Instructions, oral or written, provided with the object concerning its use;
(5) Descriptive materials accompanying the object which explain or depict
its use;
(6) The manner in which the object is displayed for sale;
(7) The existence and scope of legitimate uses for the object in the
community; and
8) Expert testimony concerning its use.
Id. § 39-17-424.
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In order to establish a violation of Code section 39-17-425(a)(1), which defines the
offense of possession of drug paraphernalia, the State must prove the following three
elements beyond a reasonable doubt: “(1) that the defendant possessed an object; (2) that
the object possessed was classifiable as drug paraphernalia; and (3) that the defendant
intended to use that object for at least one of the illicit purposes enumerated in the statute.”
State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001) (citing State v. Mallard, 40 S.W.3d 473,
486 (Tenn. 2001)).
Here, the “object” is the digital scale found in the rear floorboard of the Defendant’s
vehicle. The Defendant concedes that the first element of this offense is met because the
digital scale was within his constructive possession. See State v. Williams, 623 S.W.2d
121, 125 (Tenn. Crim. App. 1981). However, he argues there was no proof of the second
element, that the digital scale was classifiable as drug paraphernalia, or the third element,
that he intended to use the digital scale for at least one of the illicit purposes enumerated in
the statute. See Ross, 49 S.W.3d at 846.
The Defendant asserts that nothing in the definition of drug paraphernalia in Code
section 39-17-402(12) has anything to do with “scales, digital scales, weighing, or
weighing equipment” and that “contrary to Deputy Fitzgerald’s trial testimony—a person’s
possession of a digital scale or scales, by itself, is not legally sufficient proof of possession
of drug paraphernalia.” While the Defendant acknowledges that digital or electronic scales
have been held to be drug paraphernalia in other cases, he claims this was only when other
circumstances existed. See id. at 846-47 & n.10 (concluding that the evidence was
sufficient to sustain the defendant’s conviction for possession of drug paraphernalia when
(1) the defendant constructively possessed “electronic scales and plastic sandwich bags[,]”
(2) an officer testified that electronic sales are “commonly used to weigh narcotics” in
“bulk” sales of crack cocaine and that “plastic bags are commonly used to package crack
cocaine, usually for resale[,]” (3) the scales and plastic bags were found “in close proximity
to . . . a large amount of crack cocaine,” and (4) “several ‘rocks’ of crack cocaine were
already packaged for resale[.]”); see also State v. Christopher R. Rickman, No. W2008-
02012-CCA-R3-CD, 2009 WL 3719458, at *4 (Tenn. Crim. App. Nov. 5, 2009) (holding
that pipes with drug residue, baggies, and scales” were “drug paraphernalia” when “[t]he
presence of residue on the pipes support[ed] the inference that they had been used in
smoking the methamphetamine”); State v. Greg Harris, No. E2003-02834-CCA-R3-CD,
2005 WL 419082, at *8 (Tenn. Crim. App. Feb. 23, 2005) (holding that “the glass jars,
microwave, scales, and baggies” were “drug paraphernalia intended for use in converting
or processing, and packing or storing the cocaine” when these items were found with more
than 300 grams of cocaine); accord State v. Tyson Reed King, No. M2017-01594-CCA-
R3-CD, 2018 WL 4382074, at *3-4 (Tenn. Crim. App. Sept. 14, 2018) (concluding that “a
single plastic sandwich bag” containing MDMA was “drug paraphernalia” when the
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“baggie . . . was the item which the Defendant used to contain MDMA” and the existence
of MDMA was established by a “drug field test”).
The Defendant contends that none of these additional circumstances were present
in his case. He asserts that (1) the digital scale was not tested for the presence of drug
residue, (2) none of the State’s witnesses testified that they observed a residue on the scale,
(3) the Defendant did not make any statements to police about the scale’s use or intended
use, and (4) Deputy Fitzgerald acknowledged that scales like the one found in the
Defendant’s possession were “kitchen gadget[s]” that could be found in any household.
The Defendant asserts that despite the lack of evidence of packed or repacked drugs, the
prosecutor, during her questioning of Deputy Fitzgerald, emphasized that the digital scale
found in the Defendant’s vehicle should be considered “drug paraphernalia” because such
scales are commonly used to “weigh[] and package[]” narcotics. He also asserts that this
prosecutor told the jury during closing arguments that it could find that the digital scale
was “drug paraphernalia” because (1) “drugs are often weighed and packaged according[]
to their weight,” (2) there was “the presence of marijuana in the vehicle,” and (3) the jury
instructions listed “packag[ing] and repackag[ing] drugs as one potential use for drug
paraphernalia.”
The Defendant insists that in his case, there was no evidence of any packaged or
repackaged drugs and no indication that the digital scale was used or intended to be used
for the weighing and packaging of drugs. He asserts that although Deputy Fitzgerald
claimed the Defendant had enough marijuana in his ashtray for one “blunt” or “marijuana
cigarette,” he was never arrested or charged with possession of marijuana or any other
drug. He also contends that the “substance” that Deputy Fitzgerald allegedly allowed him
to dispose of “in the grass on the side of the road” was never recovered or tested by the
Tennessee Bureau of Investigation and was never field tested by the officers at the scene.
The Defendant argues that assuming that this substance was actually marijuana, it would
have been an amount sufficient only for personal use. He then asserts the State’s proof
failed to establish that “digital scales are commonly used for personal amounts of
marijuana” and showed only that the “scales are commonly used for weighing and
packaging drugs to determine their felony or misdemeanor amount and cost, which is
necessary only when the drugs are intended for resale.” The Defendant states that he “was
not found in possession of a large amount of marijuana, plastic bags, or cash, as might tend
to indicate the weighing, packaging, repackaging, or selling of drugs.” Accordingly, he
maintains that “the mere presence of a digital scale—without any proof of the presence of
illegal drugs or drug residue, without any proof of drug packaging or selling, and without
any proof that the scale was being used for an illicit purpose—is not legally sufficient
evidence to support a conviction for possession of drug paraphernalia.”
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First, as to the claim that the State failed to prove the digital scale was classifiable
as drug paraphernalia, we note that drug paraphernalia is defined, in pertinent part, as “all
equipment, products and materials of any kind which are used, intended for use, or
designed for use in . . . preparing, . . . packaging, [or] repackaging . . . a controlled
substance[.]” Tenn. Code Ann. § 39-17-402(12) (emphasis added). This court has
routinely held that scales are classifiable as drug paraphernalia. See Ross, 49 S.W.3d at
846 (concluding that “[t]he evidence in the record demonstrates that the electronic scales
and plastic sandwich bags could be used as drug paraphernalia”); State v. Gregory Gill,
No. W2018-00331-CCA-R3-CD, 2019 WL 549651, at *12 (Tenn. Crim. App. Feb. 11,
2019) (concluding that three sets of scales and plastic baggies found in the defendant’s
rental car were drug paraphernalia in light of the officer’s testimony that individuals often
use plastic bags and digital scales to measure and package drugs for illegal sale and
distribution and the fact that marijuana and cocaine were also found in the rental vehicle);
State v. Jerry Floyd Caldwell, No. M1999-02363-CCA-R3-CD, 2001 WL 818207, at *5
(Tenn. Crim. App. July 20, 2001) (concluding that the scales, which were covered with a
residue of white powder and were found with baggies, ties, a cut straw, and nine baggies
of cocaine, were drug paraphernalia); see also Christopher R. Rickman, 2009 WL 3719458,
at *4; Greg Harris, 2005 WL 419082, at *8.
The Defendant asserts that the digital scale is not drug paraphernalia because he
“was not found in possession of a large amount of marijuana, plastic bags, or cash, as might
tend to indicate the weighing, packaging, repackaging, or selling of drugs.” While he
claims that the State’s proof failed to establish that “digital scales are commonly used for
personal amounts of marijuana,” we disagree.
Initially, we note that offense of possession of drug paraphernalia does not require
that the object at issue be used in large-scale drug operations involving the packaging and
repackaging of substantial amounts of drugs. In fact, the definition and examples of drug
paraphernalia provided in Code section 39-17-402(12) reference certain items directly
related to the personal use of drugs. Moreover, despite the Defendant’s claims to the
contrary, the State’s proof did show that digital scales are commonly used for personal
amounts of controlled substances. At trial, Deputy Fitzgerald testified, based on his
education, training, and experience, that digital scales like the one found in the Defendant’s
vehicle are commonly used to weigh narcotics prior to packaging them, either to determine
the cost of a drug or to determine whether the possession of a certain amount of a drug
would be a misdemeanor or felony offense. Deputy Fitzgerald specifically noted that
“[w]ith marijuana, anything over 14.5 grams is a felony.” This proof is very consistent
with the use of digital scales to weigh personal amounts of a controlled substance prior to
packaging or repackaging it or in order to prepare a controlled substance prior to carrying
or travelling with it. Furthermore, Deputy Fitzgerald testified that the Defendant was
extremely nervous during the entirety of the traffic stop and that although the Defendant
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repeatedly denied having drugs or firearms in his car, he finally admitted to possessing
both marijuana and a handgun inside his vehicle. Deputy Fitzgerald’s search revealed not
only the digital scale in the Defendant’s car but also marijuana wrapped in plastic in the
Defendant’s ashtray and a stolen, loaded Glock pistol, and both the marijuana and the pistol
were depicted in the photograph he took at the scene that was admitted at trial. Given this
evidence, a rational jury could have inferred that the Defendant used or intended to use the
digital scale to prepare, package, or repackage a controlled substance, including the
marijuana found in his car. Accordingly, we conclude that the record supports the jury’s
determination that the digital scale found in the Defendant’s car is classifiable as drug
paraphernalia pursuant to Code section 39-17-402(12).
Second, we address the Defendant’s claim that the State failed to prove that he
intended to use the digital scale for at least one of the illicit purposes enumerated in Code
section 39-17-425(a)(1). The “illicit purposes” in the statute include the following, in
pertinent part: “to . . . prepare, . . . pack [or] repack . . . a controlled substance[.]” Tenn.
Code Ann. § 39-17-425(a)(1). Although the Defendant argues on appeal that the State
failed to prove that he intended to use the scale for an illicit purpose, we have already
summarized the substantial proof offered by the State on this issue. In addition to Deputy
Fitzgerald’s testimony, the jury was free to consider that the Defendant never provided any
proof of an innocent explanation for the presence of the digital scale in his car and never
presented any evidence that the substance depicted in the admitted photograph was not
marijuana. As to Deputy Fitzgerald’s testimony concerning the Defendant’s admissions to
possessing marijuana, “[i]t was the responsibility of the jury to determine whether [the
Defendant’s] statements were made, whether they were truthful, and what weight the
statements should have been given in determining guilt or innocence.” State v. Litton, 161
S.W.3d 447, 459 (Tenn. Crim. App. 2004); 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim.
§ 42.11(a) (Prior Statement of the Defendant). While no proof was presented showing that
the digital scale contained drug residue, there was no requirement that the scale actually
contain drug residue in order for the State to prove the Defendant used or intended to use
the scale to weigh a controlled substance, including marijuana. The jury, by its verdict,
accredited Deputy Fitzgerald’s testimony about the Defendant’s admissions to the
marijuana as well as Deputy Fitzgerald’s testimony that digital scales are commonly used
to weigh personal amounts of drugs. Given all of the evidence presented at trial, a rational
jury could have found that the Defendant used or intended to use the digital scale to weigh
a controlled substance prior to packing or repacking it or in order to prepare a controlled
substance before carrying or travelling with it, either to determine the cost of a controlled
substance during purchase or to avoid felony charges for possessing a controlled substance
above a certain weight. See Tyson Reed King, 2018 WL 4382074, at *2 (“Drug offense
charges are classified in part by weighing the amount of the drug in possession[.]”). In
determining whether the evidence is sufficient to sustain this conviction, we decline the
Defendant’s entreaties for us to overturn the jury’s factual findings on appeal. See Bland,
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958 S.W.2d at 659. We also reject the Defendant’s requests for us to reweigh the evidence
or to substitute our inferences for those drawn by the jury. See Wagner, 382 S.W.3d at
297. Because a rational jury could have determined that the Defendant used or intended to
use the digital scale for the illicit purpose of “prepar[ing], . . . pack[ing], [or] repack[ing]
. . . a controlled substance,” we conclude that the evidence, when viewed in the light most
favorable to the State, is sufficient to sustain the Defendant’s conviction for possession of
drug paraphernalia.
B. Theft of Property. The Defendant also contends that the evidence is insufficient
to sustain his conviction for theft of property. He claims that his possession of a handgun
that is determined to be stolen, without any proof of how it was stolen or obtained, is not
proof of theft of the handgun. The Defendant argues that “the time between the theft and
[his] possession [of the gun]—almost six months to the day—is too attenuated for the gun
to be deemed ‘recently stolen goods.’” He also asserts that “the distance between the theft
and [his] possession [of the gun]—nearly 50 miles, which is approximately an hour’s
drive—further separates [his] possession from the theft itself.” The Defendant argues that
there was no proof he knew the gun had been stolen, much less that he had been involved
in the theft, and asserts that he was not found in possession of “a baseball bat, gloves,
jumpsuit, or face mask,” which were the items used by the two unidentified individuals
who burglarized Tomlinson’s gun store. He contends that “[w]hen all these circumstances
are viewed together, no reasonable juror could have concluded, beyond a reasonable doubt,
that [he] was guilty of theft merely because he possessed a previously stolen handgun.”
In order to establish a violation of Code section 39-14-103, which defines the
offense of theft of property, the State must prove the following three elements beyond a
reasonable doubt: “(1) the defendant knowingly obtained or exercised control over
property; (2) the defendant did not have the owner’s effective consent; and (3) the
defendant intended to deprive the owner of the property.” Tenn. Code Ann. § 39-14-103;
State v. Gentry, 538 S.W.3d 413, 422 (Tenn. 2017). Significantly, “‘theft of property’ [is]
defined in terms of knowingly obtaining or exercising control over property without the
owner’s consent and with the intent to deprive the owner of the property.” State v. James,
315 S.W.3d 440, 450 (Tenn. 2010) (citing Tenn. Code Ann. § 39-14-103) (emphasis
added). Following the 1989 enactment of the current theft of property statute in Code
section 39-14-103, larceny and other offenses were consolidated into a single “theft of
property” offense, meaning that “[t]here is no difference between the actual larceny and
either receiving or concealing the stolen property.” Id.; Tenn. Code Ann. § 39-14-101(stating that theft under the 1989 statute includes “the separate offenses referenced before
1989 as embezzlement, false pretense, fraudulent conversion, larceny, receiving or
concealing stolen property, and other similar offenses.” (emphasis added)); cf. Tenn. Code
Ann. §§ 39-3-1101, -1112 (1982). Under the current consolidated theft statute, “‘the
critical inquiry is thus twofold: whether the actor had control of the property, no matter
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how he got it, and whether the actor’s acquisition or use of the property was authorized.’”
Gentry, 538 S.W.3d at 423 (quoting Model Penal Code Commentaries at 166).
The unsatisfactorily explained possession of recently stolen property, in light of the
surrounding facts and circumstances, creates a permissible inference2 that the possessor
stole the property or knew that it was stolen.3 James, 315 S.W.3d at 450-52; see Bush v.
State, 541 S.W.2d 391, 394 (Tenn. 1976); State v. Tuttle, 914 S.W.2d 926, 932 (Tenn.
Crim. App. 1995); see also State v. Trenton Ray Forrester, No. W2018-01947-CCA-R3-
CD, 2019 WL 4051801, at *3 (Tenn. Crim. App. Aug. 27, 2019). Such “[i]nferences from
recently stolen property have a long history and widespread acceptance.” James, 315
S.W.3d at 448 n.5. The jury may choose to apply this inference, even when presented with
contradictory evidence or the defendant’s contrary explanation. State v. Land, 681 S.W.2d
589, 591 (Tenn. Crim. App. 1984); see Bush, 541 S.W.2d at 395. Logically, a defendant’s
failure to provide any proof explaining his or her possession of the recently stolen property
is also a circumstance from which the jury can draw the inference that the defendant stole
the property or knew that it was stolen. State v. Veach, 456 S.W.2d 650, 652 (Tenn. 1970);
Myers v. State, 470 S.W.2d 848, 318-19 (Tenn. Crim. App. 1971); State v. Andrew
William Byers, No. 01C01-9601-CC-00002, 1997 WL 488621, at *5 (Tenn. Crim. App.
Aug. 22, 1997); State v. Wallace Eugene Steadman, 1987 WL 5545, at *2 (Tenn. Crim.
App. Jan. 23, 1987); see James, 315 S.W.3d at 453. The term “recently” is a relative
concept that “depends upon the nature of the property and all of the facts and circumstances
2
We note that “[g]enerally speaking, ‘a permissive inference is not a violation of due process
because the State still has the burden of persuading the jury that the suggested conclusion should be inferred
based on the predicate facts proved.’” James, 315 S.W.3d at 450 (quoting Estelle v. McGuire, 502 U.S. 62,
78-79 (1991) (O’Connor, J., concurring & dissenting)).
3
A different, more rigorous standard exists with regard that to the inference of burglary that arises
from the possession of recently stolen property. As noted in James, “[T]he better rule is to permit the jury
to infer a burglary from possession of recently stolen property only when there exists a rational connection
between possession [of the stolen property] and participation [in the burglary], when guilt more likely than
not flows from possession, and, importantly, when there is some other evidence corroborating the burglary
that warrants the inference.” James, 315 S.W.3d 440 (Tenn. 2010); see 2 Wharton’s Criminal Law &
Procedure § 411 (1st ed. 1957) (“While the possession of recently stolen goods gives rise to an inference
that the possessor has stolen the goods, it is not ordinarily proof or prima facia evidence of burglary. There
should be some evidence of guilty conduct besides the bare possession of the stolen property, before the
inference of burglary be superadded to that of larceny.”); 13 Am. Jur. 2d Burglary § 48 (“A defendant’s
possession of recently stolen property is sufficient to support a burglary conviction if there is a rational
connection between his or her recent possession of property stolen in the burglary and his or her
participation in the burglary; the defendant’s guilt of burglary more likely than not flows from his or her
recent, unexplained possession of the burglary proceeds, and there is evidence corroborating the defendant’s
guilt. . . . However, the mere possession of recently stolen goods does not constitute prima facie evidence
of an unlawful entry by the possessor.”).
- 16 -
shown by the evidence in the case.” State v. Anderson, 738 S.W.2d 200, 202 (Tenn. Crim.
App. 1987).
Although the Defendant acknowledges that a jury may infer theft from proof of
possession of recently stolen property, he contends that “the mere act of possession is rarely
sufficient, by itself, to invoke this inference. As support, the Defendant cites the following
language from Bush v. State:
The evidence of possession, sufficient to invoke the presumption, is seldom,
if ever, alone. It necessarily establishes the time and distance relationship
between the burglary or theft and the possession by defendant. Frequently
the defendant’s proximity to the place of taking and his opportunity or lack
of opportunity to have committed the theft are revealed by some
circumstance accompanying the proof of possession. In short, the evidence
of possession is almost inevitably accompanied by facts that either increase
or decrease the degree of probability. Thus the evidence of possession
sufficient to invoke the presumption will vary widely from case to case; and
at one end of the spectrum, the degree of probability that defendant
committed the theft will be so strong that a clear and cogent explanation may
be necessary to convince a jury that the presumption has been overcome,
while at the other end of the spectrum, a reasonable explanation of much less
probative value will suffice.
541 S.W.2d at 396.
In this case, during a hearing outside the presence of the jury and after the defense’s
motion for judgment of acquittal, the trial court informed the parties that it was planning
to provide a jury instruction regarding the inference of theft from the possession of recently
stolen property. The court provided both parties with the specific language of the jury
instruction, and the Defendant’s attorney stated that he had “[n]o objection” to this
instruction. Later, after instructing the jury on the theft of property offense, the trial court
provided the following instruction to the jury regarding the inference of theft that arises
from a defendant’s possession of recently stolen property, which closely mirrors the pattern
instruction:
Now, ladies and gentlemen, if you find beyond a reasonable doubt
from the evidence in this case that the property in question had been recently
stolen and that soon thereafter this same property was discovered in the
exclusive possession of the Defendant, this possession, unless satisfactorily
explained, is ordinarily a circumstance from which you may reasonably draw
an inference that the Defendant gained possession through theft. However,
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you are never required to make this inference, or these inferences. It is for
you to determine whether the facts and circumstances shown by the evidence
in the case warrant any inference which the law permits you to draw from
the possession of recently stolen property. When the evidence is offered that
the Defendant was in possession of recently stolen property, the Defendant
has the right to introduce evidence that he came into possession of the
property lawfully or possession may be satisfactorily explained through other
circumstances or other evidence independently of any testimony or evidence
offered by the Defendant. In considering whether possession of recently
stolen property has been satisfactorily explained, you are reminded that in
the exercise of constitutional rights, the accused need not take the witness
stand and testify.
The term [“]recently[”] is a relative term and has no fixed meaning.
Whether a property may be considered as recently stolen depends upon the
nature of the property and all the facts and circumstances shown by the
evidence in this case. The longer the period of time since the theft, the more
doubtful becomes the inference which may be drawn for unexplained
possession.
The correctness of the inference and the weight to be given any
explanation that may be shown by the evidence are matters that must be
determined by you, and you are not bound to accept them. You must weigh
all the evidence presented as to the Defendant’s alleged possession of the
property in question and decide in light of all the facts and circumstances in
the case whether any inference is warranted. You are reminded that the
burden of proving the Defendant’s guilt of the offense beyond a reasonable
doubt remains upon the State of Tennessee.
See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.20 (Inference from possession of
recently stolen property).
The Defendant asserts that he was not arrested “until six months after the break-in
at the gun store, when he was stopped for an unrelated traffic violation nearly 50 miles
away in Bolivar, Tennessee.” He argues that the differences in time and place between the
burglary of the gun store and his possession of the stolen Glock, as well as the “highly
transferable” nature of the handgun, make the evidence insufficient to sustain his theft
conviction. Interestingly, the record shows not only that the Defendant had “no objection”
to the trial court’s instruction on the inference but also that the Defendant never filed a
motion for new trial challenging this inference instruction. Consequently, the Defendant
has waived any challenge to the inference instruction itself. See Tenn. R. Crim. P. 30(b);
- 18 -
State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). In any case, we recognize that the trial
court properly instructed the jury that it was not required to make this inference, that the
Defendant had a right not to testify at trial, and that the State had the burden of proving the
Defendant’s guilt beyond a reasonable doubt. See James, 315 S.W.3d at 454. The jury,
after being properly instructed and fully informed of the differences in time and location
between the burglary and the Defendant’s possession of the stolen handgun, ultimately
found the Defendant guilty beyond a reasonable doubt of theft of property. Cf. State v.
Jerry Sherrill, II, No. W2013-01166-CCA-R3-CD, 2014 WL 2547775, at *11-12 (Tenn.
Crim. App. May 30. 2014) (concluding that there was no error in the trial court’s inference
instruction where the defendant was found in possession of a stolen Camaro nearly seven
months after it had been stolen). We decline the Defendant’s request for us to re-weigh
the evidence or to substitute our inferences for those drawn by the jury. Wagner, 382
S.W.3d at 297. As we will explain, the evidence is sufficient to sustain the Defendant’s
theft conviction.
The Defendant also claims that the evidence is “legally insufficient to establish any
degree or probability that [the Defendant] committed the theft.” He contends that while
the State’s proof showed that ten guns had been stolen from “J & H Guns” in Corinth,
Mississippi by two unidentified individuals, neither the Defendant nor his female passenger
were ever alleged to be responsible for this crime. He adds that only one of the ten pistols
stolen was found in his possession and that he was never found in possession of “a baseball
bat, gloves, jumpsuit, or face mask,” which were the items used by the two unidentified
individuals who burglarized the gun store. However, as the previous explanation of the
current consolidated theft statute makes clear, a defendant does not have to steal the
property from the victim in order to be convicted of theft of property. As we will more
fully develop below, the evidence is sufficient to show that the Defendant, at a minimum,
exercised control over the Glock handgun with intent to deprive the owner of the property
and without the owner’s effective consent. See Tenn. Code Ann. § 39-14-103; Gentry, 538
S.W.3d at 423 (Under the current consolidated theft statute, “the critical inquiry is thus
twofold: whether the actor had control of the property, no matter how he got it, and whether
the actor’s acquisition or use of the property was authorized.” citation and quotation marks
omitted)).
The evidence, when viewed in the light most favorable to the State, showed that a
nine millimeter Glock 19 semi-automatic pistol, along with nine other guns, was stolen
from John Whitney Hughes Tomlinson’s gun store during a burglary on August 30, 2018.
Tomlinson stated that he never gave anyone consent to take, to keep, to possess, or to
exercise control over the Glock pistol. The Defendant was in possession of the stolen
Glock when he was arrested the night of February 23, 2019, less than six months after the
burglary of Tomlinson’s gun store. Deputy Wooley testified at trial that he saw the
Defendant “trying to push something between the driver’s seat and center console of the
- 19 -
car” when Deputy Fitzgerald returned to his cruiser to check the Defendant and his
passenger for outstanding warrants. Deputy Fitzgerald testified that the Defendant was
extremely nervous during the entirety of the traffic stop, even after he was informed that
he would not receive a ticket, and that the Defendant lied to him at least twice about having
a firearm before finally acknowledging that he had a gun in his vehicle. During the search
of the Defendant’s vehicle, Deputy Fitzgerald observed the butt of handgun magazine “in
between the driver’s seat and the center console[,]” and noted that it had been “shoved
down pretty far[.]” In an attempt to determine why the gun had been pushed so far down
between the seats and why the Defendant was so nervous, Deputy Fitzgerald asked the
Defendant if the handgun was stolen, and the Defendant replied, “It’s not hot. It’s not hot.”
Deputy Fitzgerald later determined that the gun in the Defendant’s vehicle was the Glock
19 that had been stolen from Tomlinson’s gun store.
The aforementioned evidence raised the logical inference to the jury that the
Defendant was guilty of the theft offense because he either stole the Glock pistol or knew
it was stolen and intended to deprive the owner of it. James, 315 S.W.3d at 453;
Christopher R. Rickman, 2009 WL 3719458, at *3. Because the Defendant provided no
proof explaining his possession of the stolen gun at trial, the State’s evidence went
unrefuted, and the inference of the Defendant’s guilty knowledge was not negated. We
conclude that evidence of the Defendant’s possession of the stolen gun, when considered
along with his attempt to hide the gun from law enforcement, his dishonesty about having
a gun in his car, his extreme nervousness even after being informed that he would not
receive a ticket, his overzealous insistence that the gun was “not hot,” and his failure to
provide any proof explaining his possession of the stolen handgun is sufficient to sustain
the Defendant’s conviction for theft of property.
II. Imposition of Fines. The Defendant argues that his fines in Counts 2 and 3
should be vacated because the trial court failed to conduct an independent assessment of
the fines fixed by the jury, including the Defendant’s ability to pay them. He claims “the
trial court may not have even understood that it had both the authority and the discretion
to reduce or waive the fines, because the court stated that [the Defendant] ‘asked for a jury
trial, and that included fine assessment.” He also maintains that the court, after
acknowledging that the Defendant “was going to owe a lot of money,” chose not to reduce
or waive the fines and merely “rubber-stamped the fines set by the jury.” The Defendant
contends that because the trial court failed to exercise its own discretion on the fines, this
court should reverse and remand the fine determination for reconsideration, “with
instructions for the trial court to independently assess the jury-imposed fines and determine
whether they should be reduced or waived in light of [the Defendant’s] lack of criminal
history, his status as an indigent defendant, the lack of applicable enhancement factors, the
fact that the owner of the handgun had already been compensated for his loss through
insurance, and the fact that [the Defendant’s] convictions were all for misdemeanor
- 20 -
offenses.” In response, the State contends that the trial court properly imposed the fines
fixed by the jury. We agree with the State.
This court reviews a trial court’s imposition of a fine, which is part of a defendant’s
sentence, under an abuse of discretion standard. State v. Bryant, 805 S.W.2d 762, 767
(Tenn. 1991); State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Typically, fines are fixed
by a jury unless the defendant waives this constitutional protection. Tenn. Const. art. VI,
§ 14; Tenn. Code Ann. § 40-35-301(b); State v. Mahoney, 874 S.W.2d 627, 630 (Tenn.
Crim. App. 1993). Here, the record makes it clear that the Defendant chose to have the
jury fix the fines in his case.
A trial court has “the power to impose any fine which does not exceed the fine fixed
by the jury, and to reduce, suspend, or release fines.” Bryant, 805 S.W.2d at 765 (citing
Tenn. Code Ann. §§ 40-24-101, -102, -104); see Tenn. Code Ann. § 40-35-301(b). In
imposing a fine, the trial court must consider the principles of sentencing, including “prior
offenses, potential for rehabilitation, mitigating and aggravating circumstances, and other
matters relevant to an appropriate sentence.” Bryant, 805 S.W.2d at 765-66.
It is well recognized that a defendant’s ability to pay is a factor in the establishment
of a fine. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. 1996). “[A]lthough the
defendant’s ability to pay a fine is a factor, it is not necessarily a controlling one.” State v.
Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993), overruled on other grounds by
State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999). While “an oppressive fine can disrupt
future rehabilitation and prevent a defendant from becoming a productive member of
society[,] . . . a significant fine is not automatically precluded just because it works a
substantial hardship on a defendant—it may be punitive in the same fashion incarceration
may be punitive.” Id. Moreover, while the record shows that the Defendant was indigent,
we recognize that “[a] declaration of indigency, standing alone, does not, however,
immunize the defendant from fines” and is “merely one factor which may be taken into
account.” Alvarado, 961 S.W.2d at 153.
The record shows that the trial court instructed the jury that if it found the Defendant
guilty beyond a reasonable doubt of failure to maintain lane in Count 1, then the jury, in its
discretion, could fix a fine in an amount of not more than $50.00, but not less than zero
dollars. See Tenn. Code Ann. § 40-35-111(e)(3). The court also informed the jury that if
it found the Defendant guilty beyond a reasonable doubt of possession of drug
paraphernalia in Count 2, then the jury, in its discretion, could fix a fine of not more than
$2500.00, but not less than $150.00. See id. §§ 40-35-111(e)(1), 39-17-428(b)(7). Finally,
the trial court informed the jury that if it found the Defendant guilty beyond a reasonable
doubt of theft of property in Count 3, then the jury, in its discretion, could fix a fine of not
more than $2500.00, but not less than zero dollars. See id. § 40-35-111(e)(1). Ultimately,
- 21 -
the jury fixed a fine of $0.00 in Count 1, a fine of $150.00 in Count 2, and a fine of $500.00
in Count 3.
We note that during the entirety of the sentencing hearing, the Defendant never
raised an objection regarding his fines, never presented any proof regarding his ability to
pay fines, and never argued that the trial court should refrain from imposing the fines fixed
by the jury for any reason. Rather, the Defendant only argued for a suspended sentence
and no jail time. By failing to do so the Defendant risked waiver of this issue. See Tenn.
R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to
a party responsible for an error or who failed to take whatever action was reasonably
available to prevent or nullify the harmful effect of an error.”); Alvarado, 961 S.W.2d at
153 (“Ordinarily, issues raised for the first time on appeal are waived.”); State v. Maddin,
192 S.W.3d 558, 561 (Tenn. Crim. App. 2005) (“When an issue is raised for the first time
on appeal, it is typically waived.”); State v. Turner, 919 S.W.2d 346, 356-57 (Tenn. Crim.
App. 1995) (“A party may not raise an issue for the first time in the appellate court.”); State
v. Charles A. Kennedy, No. M2013-02207-CCA-R9-CD, 2014 WL 4953586, at *10 (Tenn.
Crim. App. Oct. 3, 2014) (“Because the State failed to present this argument in the trial
court, the trial court did not have the opportunity to pass on it, and we will not consider
it.”). In any event, we will briefly address the merits of the Defendant’s claims.
As to the Defendant’s fine in Count 2 for possession of drug paraphernalia, the
Tennessee General Assembly has determined that a mandatory minimum fine of $150.00
is required for that particular offense. See Tenn. Code Ann. § 39-17-428(b)(7).
Accordingly, we conclude that the trial court did not abuse its discretion in imposing the
$150.00 fine fixed by the jury in Count 2.
Next, as to the Defendant’s fine in Count 3 for theft of property, the trial court
recognized that the Defendant “had no prior criminal history[,]” that he had only been
convicted of “misdemeanor offenses[,]” and that “there were really no aggravating
circumstances at the time of the stop and the arrest.” The trial court asked the Defendant
if he had a job, and the Defendant replied that he had a job interview “Monday in
Murfreesboro, Tennessee.” The court then asked if the Defendant would have a place to
live if he were offered the job in Murfreesboro, the Defendant replied that he did have a
place to live, although he currently lived at home with his mother in Bolivar, Tennessee.
In response to the court’s questioning, the Defendant acknowledged that he had been
employed at two other jobs for short periods of time. The trial court then stated, “The fines
will stand. He asked for a jury trial, and that included fine assessment, so we do have the
fines of $500 on the theft and $150 on the [possession of drug] paraphernalia[.]” Although
the trial court recognized that the Defendant was “going to owe a lot of money” and was
currently unemployed, it chose to impose the fines set by the jury and informed the
Defendant that the minimum payment on these fines was $100.00 a month.
- 22 -
The record shows that the trial court conducted a full, independent assessment of
the fines fixed by the jury, specifically considering the Defendant’s ability to pay these
fines. The court determined that the Defendant had been employed in the past and was
searching for work while living with his mother. At the conclusion of the sentencing
hearing, the trial court ordered the Defendant to serve only ten days in jail, with the
remainder of his of his eleven months and twenty-nine day sentence supervised by
community corrections. In light of these facts, we likewise conclude that the trial court did
not abuse its discretion in imposing the $500.00 fine in Count 3. Accordingly, the
Defendant is not entitled to relief.
CONCLUSION
Because the evidence is sufficient to sustain the Defendant’s convictions in Counts
2 and 3 and the trial court did not abuse its discretion in imposing the fines fixed by the
jury in those counts, the judgments of the trial court are affirmed.
____________________________________
CAMILLE R. MCMULLEN, JUDGE
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