State of Tennessee v. Douglas E. Linville ( 2021 )

03/12/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 10, 2020 Session
STATE OF TENNESSEE v. DOUGLAS E. LINVILLE
Appeal from the Circuit Court for Hardin County
No. 18-CR-145 Charles C. McGinley, Judge
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No. W2019-02180-CCA-R3-CD
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A jury convicted the Defendant, Douglas E. Linville, of possession of 0.5 grams or less
of methamphetamine with intent to deliver in a drug-free zone, possession of Oxycodone
with intent to deliver in a drug-free zone, possession of Xanax with intent to deliver in a
drug free zone, simple possession of marijuana, and possession of drug paraphernalia.
He received an effective twelve-year sentence. The Defendant appeals his conviction,
arguing that the evidence was insufficient to support his convictions and that the trial
court committed plain error by allowing a witness to testify about information the trial
court previously ruled inadmissible. We affirm the trial court’s judgments, and we
remand to the trial court for correction of the judgment form in count three in accordance
with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
Remanded
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and J. ROSS DYER, JJ., joined.
Kendall F. Stivers (on appeal), Assistant Public Defender – Appellate Division; and
Matthew Edwards (at trial), Bolivar, Tennessee, for the appellant, Douglas E. Linville.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Assistant Attorney General; Matthew F. Stowe, District Attorney General; and Vance W.
Dennis and Jennifer Hedge, Assistant District Attorneys General, for the appellee, State
of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
This case involved a search of Ms. Rhonda Hill’s residence (“the Vine Street
residence”) on June 4, 2018, during which law enforcement officers with the Hardin
County Sherriff’s Department seized drugs and drug paraphernalia. The Defendant was
charged with various drug-related offenses based on complaints about the Vine Street
residence referencing him by name and based on his presence in Ms. Hill’s residence
during the search. The evidence presented at trial showed that 24th Judicial District Drug
Task Force Agent Jason Caldwell received numerous complaints about the Vine Street
residence, in which some complainants described people walking through their yards,
knocking on their doors, asking for “Doug,” and sometimes, with wallet in hand,
requesting to purchase drugs. Agent Caldwell testified that some of the individuals
described were affiliated with a “dope gang.” He testified that the Defendant and Ms.
Hill were in a romantic relationship at the time and that he suspected the Defendant lived
with her. However, Agent Caldwell agreed he never observed the Defendant “coming or
going” during his surveillance of the residence and that he did not know if the Defendant
lived there at all. He testified that the Vine Street residence was within 1000 feet of a
nearby park. Agent Caldwell and other law enforcement officers searched the Vine
Street residence after obtaining a warrant.
During the search, Agent Caldwell encountered the Defendant and Ms. Hill in the
master bedroom. There, he found digital scales covered in a white residue and “baggies”
inside a dresser. Agent Caldwell testified that the presence of the residue was consistent
with the sale of methamphetamine or cocaine, but no testing was completed to confirm
the residue’s composition. He testified that scales could be used by drug dealers to weigh
drugs being purchased or sold or by drug users to verify they are not being “shorted”
during a purchase. Agent Caldwell also found eight pills inside a “baggie” in the
bathroom attached to the master bedroom.
Law enforcement encountered three other individuals, Jeffrey Reaves, Cindy
Gammill, and Krystal Tall,1 in a den or enclosed carport. Hidden in a couch in that room,
law enforcement discovered a plastic container, a metal pill container, and “baggies” of
methamphetamine and marijuana. Agent Caldwell testified that law enforcement charged
Ms. Gammill separately for additional “baggies” of methamphetamine found in her
vehicle and a small amount of marijuana found on her person. He also testified that the
Vine Street residence had exterior video surveillance and explained that somebody could
have known that law enforcement was present before the search. According to Agent
Caldwell, none of the individuals present at the Vine Street residence claimed ownership
1
We use the spelling from the Defendant’s arrest warrants. The names are spelled in the trial transcripts
as Jeff Reeves, Cindy Gamble, and Crystal Tahl.
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of the contraband. He testified that all of the drugs seized at the Vine Street residence
were sent to the Tennessee Bureau of Investigation (“TBI”) for testing. TBI Special
Agent Carter DePew analyzed the substances. He identified two pills as Oxycodone and
six pills as Xanax, and he confirmed the other drugs were .21 grams of methamphetamine
and 3.89 grams of marijuana.
Agent Caldwell testified that law enforcement seized five cell phones, but they
could only retrieve information from two of them. He testified that one of the two
phones belonged to the Defendant and the other to Ms. Hill. He explained that there was
a significant amount of information that was found, including some text messages that he
described as “pertinent” to the Defendant’s case. Agent Caldwell agreed that some of the
text messages were sent to the Defendant, but he added that “there’s others that reference
the validity of the drugs being sold.” He also agreed that the Defendant’s name was
listed as the contact messages were being sent to and that the associated phone number
matched the number the Defendant provided during the booking process. Before the
prosecutor elicited more testimony from Agent Caldwell about the contents of the text
messages, the Defendant objected on hearsay grounds. The prosecutor argued that the
text messages were being offered to prove the Defendant’s intent, but the trial court
sustained the objection and ruled the text messages were inadmissible hearsay.
Immediately after the trial court’s ruling, the following exchange took place between the
prosecutor and Agent Caldwell:
Q. [D]o you have records in your messages of anything that was sent
directly from Mr. Linville and that discuss[ed] drug-related activity? Not to
him but from him in any of these – in any conversations?
...
A. The majority of those were from her to him.
The Defendant did not object again to Agent Caldwell’s testimony.
At the conclusion of the trial, the jury convicted the Defendant of possession of
0.5 grams or less of methamphetamine with intent to deliver in a drug-free zone in count
one, possession of Oxycodone with intent to deliver in a drug-free zone in count two,
possession of Xanax with intent to deliver in a drug free zone in count three, simple
possession of marijuana in count four, and possession of drug paraphernalia in count five.
The Defendant appeals the outcome of his case on two grounds: (1) that the evidence was
insufficient to support his convictions and (2) that the trial court committed plain error by
allowing Agent Caldwell to testify about information the trial court had ruled
inadmissible as hearsay.
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ANALYSIS
I. Sufficiency of the Evidence
The Defendant challenges his convictions on the ground that the evidence was
insufficient because it failed to show that he possessed any of the contraband or that he
intended to deliver the pills or methamphetamine. Reviewing the sufficiency of the
evidence supporting a criminal conviction requires this court to first “examine the
relevant statute(s) in order to determine the elements that the State must prove to
establish the offense.” State v. Stephens, 521 S.W.3d 718, 723 (Tenn. 2017). Next, we
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.’” Id. at 724 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). If the evidence is insufficient to support the finding of guilt beyond a reasonable
doubt made by the trier of fact, its finding of guilt “shall be set aside.” Tenn. R. App. P.
13(e). Once a defendant has been convicted, the presumption of innocence is replaced
with a presumption of guilt on appeal. Turner v. State, 394 S.W.2d 635, 637 (Tenn.
1965). To overcome a presumption of guilt on appeal, the defendant bears the burden of
showing the evidence presented at trial was “insufficient for a rational trier of fact to find
guilt of the defendant beyond a reasonable doubt.” State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982) (citing State v. Patton, 593 S.W.2d 913 (Tenn. 1979)).
The State “is entitled to the strongest legitimate view of the trial evidence and all
reasonable and legitimate inferences which may be drawn from the evidence.” State v.
Evans, 108 S.W.3d 231, 237 (Tenn. 2003) (citing State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999); State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997)). This court may not reweigh or reevaluate the evidence,
because “[q]uestions about the credibility of witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact.” Id. at 236 (citing Bland, 958 S.W.2d at 659). After a guilty verdict has been
entered, the testimony of the State’s witnesses is accredited, and all conflicts in the
testimony are resolved in favor of the theory of the State. State v. Nichols, 24 S.W.3d
297, 301 (Tenn. 2000) (citing State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973)).
A defendant’s guilt may be found beyond a reasonable doubt supported by direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). Whether the
evidence underlying the defendant’s conviction at trial was direct or circumstantial, the
same standard of review applies. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
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The State had to prove in count one that the Defendant knowingly possessed
“methamphetamine with intent to ... deliver ... methamphetamine” in a drug-free zone.
T.C.A. §§ 39-17-434(a)(4), -432(b)(1). In counts two and three, the State had to show
that the Defendant knowingly possessed “a controlled substance with intent to ... deliver
... the controlled substance” in a drug-free zone. §§ 39-17-417(a)(4); -432(b)(1).
Regarding count four, “[i]t is an offense for a person to knowingly possess or casually
exchange a controlled substance....” T.C.A. § 39-17-418(a). Oxycodone is a Schedule II
controlled substance, see T.C.A. § 39-17-408(b)(1)(M), Xanax is a Schedule IV
controlled substance, see T.C.A. § 39-17-412(c)(2) (described as “Alprazolam”), and
marijuana is a Schedule VI controlled substance, see T.C.A. § 39-17-415(a)(1). In count
five, the State had to prove that the Defendant used or possessed with intent to use “drug
paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, 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.” T.C.A. § 39-17-425(a)(1).
The State had to prove possession for the jury to have convicted the Defendant in
any of the above counts. See T.C.A. §§ 39-17-434(a)(4), -417(a)(4), -418(a), 425(a)(1).
“Possession may be actual or constructive.” State v. Robinson, 400 S.W.3d 529, 534
(Tenn. 2013) (citing State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001)). “[A]ctual
possession refers to physical control over an item,” while “constructive possession
requires only that a defendant have ‘the power and intention to exercise dominion and
control over’ the item allegedly possessed.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn.
2014) (quoting Shaw, 37 S.W.3d at 903). Whether a defendant constructively possessed
contraband “depends on the totality of the circumstances in each case,” and constructive
possession “may be proven by circumstantial evidence.” Robinson, 400 S.W.3d at 534
(citing T.C.A. § 39-17-419 (2006)). Neither an individual’s “mere presence . . . in an
area where drugs are found” nor the “mere association with a person in control of the
drugs or the property where the drugs are located is” sufficient to establish possession.
Id. (citing State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000); State v. Cooper,
736 S.W.2d 125, 129 (Tenn. Crim. App. 1987)).
The Defendant cites State v. Nicholaus Jones, No. W2018-01421-CCA-R3-CD,
2020 WL 974197 (Tenn. Crim. App. Feb. 27, 2020), no perm. app. filed, as support for
his argument that he did not constructively possess any of the contraband. In that
opinion, the defendant and his codefendant were present when police executed a warrant
to search a motel room. Id. at *1. Law enforcement found drugs, a handgun, and a
digital scale in the motel room and $118 on the defendant’s person. Id. at *2. The
defendant was convicted at trial for several counts related to his possession of the
contraband. Id. at *1. In reversing the defendant’s convictions, a panel of this court
concluded that the State failed to prove the defendant possessed the contraband because
there was no proof regarding who rented the room or possessed the room key, how long
the defendant had been in the room and how long he intended to stay, or whether “any of
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the bags or clothing in the room belonged to him.” Id. at *10. The court also noted that
the denominations of currency found on the defendant’s person failed to suggest he had
been selling the narcotics, and no contraband was found on the defendant’s person, nor
were there fingerprints shown to connect him with the contraband. Id.When viewed in the light most favorable to the State, the evidence was sufficient
to support the Defendant’s convictions. Agent Caldwell received complaints about the
Vine Street residence describing individuals walking through neighbors’ yards, knocking
on their doors, and asking for “Doug” and to purchase drugs. After searching the home,
law enforcement found contraband in two areas of the residence. Agent Caldwell
encountered the Defendant and Ms. Hill in the master bedroom, where he found scales
covered in white residue, “baggies” in the dresser, and a “baggie” of two Oxycodone and
six Xanax pills in an attached bathroom. Agent Caldwell testified that the white residue
was consistent with the sale of methamphetamine or cocaine. In the den or enclosed
carport, law enforcement found a plastic container with a metal pill container and
“baggies” of methamphetamine and marijuana. Law enforcement seized a total of .21
grams of methamphetamine and 3.89 grams of marijuana during the search. Agent
Caldwell testified that text messages “pertinent” to the Defendant’s case were found on
phones belonging to Ms. Hill and the Defendant and that some of them sent from Ms.
Hill to the Defendant discussed drug-related activity. This case involves circumstances
materially different than those at issue in Nicholaus Jones, because the evidence
presented a reasonable inference the Defendant was involved in the sale of illegal
substances at the Vine Street residence and that he controlled the contraband found inside
the residence. Under these circumstances, the evidence supported the jury’s finding that
the Defendant constructively possessed the contraband found in the Vine Street
residence. See Robinson, 400 S.W.3d at 534.
Specific to counts one through three, the State also had to prove that the Defendant
possessed the controlled substances with intent to deliver them. See T.C.A § 39-17-
417(a)(4). “‘Intentional’ refers to a person who acts intentionally with respect to the
nature of the conduct or to a result of the conduct when it is the person's conscious
objective or desire to engage in the conduct or cause the result. T.C.A. § 39-11-302(a).
“‘Deliver’ or delivery’ means the actual, constructive, or attempted transfer from one
person to another of a controlled substance....” T.C.A. § 39-17-402(6). “It may be
inferred from the amount of a controlled substance or substances possessed by an
offender, along with other relevant facts surrounding the arrest, that the controlled
substance or substances were possessed with the purpose of selling or otherwise
dispensing.” T.C.A. § 39-17-419. As discussed above, Agent Caldwell received
complaints suggesting the Defendant was selling drugs out of the Vine Street residence.
Law enforcement seized scales covered in a white residue and “baggies.” Agent
Caldwell testified that a drug dealer could use scales to weigh drugs before selling them,
and he testified that the white residue was consistent with the sale of methamphetamine
or cocaine. The fact that “baggies” were found near the scales supports the conclusion
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that the Defendant possessed the controlled substances with the intent to deliver them.
Law enforcement also seized “baggies” containing two Oxycodone pills, six Xanax pills,
methamphetamine, and marijuana. We conclude that the evidence is sufficient to support
the Defendant’s convictions and that the Defendant is not entitled to relief on this claim.
II. Plain Error
The Defendant contends that it was plain error for the trial court to have allowed
Agent Caldwell to testify in contravention of its evidentiary ruling regarding the content
of the text messages. The State argues that the Defendant is not entitled to relief under
the plain error doctrine. We agree with the State.
The plain error doctrine provides that “[w]hen necessary to do substantial justice,
an appellate court may consider an error that has affected the substantial rights of a party
at any time, even though the error was” waived. Tenn. R. App. P. 36(b). This court may
only consider an issue as plain error when the following factors are met:
a) the record must clearly establish what occurred in the trial court;
b) a clear and unequivocal rule of law must have been breached;
c) a substantial right of the accused must have been adversely affected;
d) the accused did not waive the issue for tactical reasons; and
e) consideration of the error is “necessary to do substantial justice.”
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted);
see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000). Additionally, the “‘plain error
must be of such a great magnitude that it probably changed the outcome of the trial.’”
Adkisson, 899 S.W.2d at 64 (quoting United States v. Kerley, 838 F.2d 932, 937 (7th Cir.
1988)). The appellant has the burden of showing that the trial court committed plain
error, State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citation omitted), and we need
not consider all five factors if it is clear that at least one of them cannot be satisfied,
Smith, 24 S.W.3d at 283.
Here, the record clearly establishes that Agent Caldwell’s testimony violated the
trial court’s evidentiary ruling. However, the Defendant is not entitled to relief because
he cannot show that consideration of the error is necessary to do substantial justice. This
court has held that “rarely will plain error review extend to an evidentiary issue.” State v.
Ricky E. Scoville, No. M2006-01684-CCA-R3-CD, 2007 WL 2600540 at *2 (Tenn.
Crim. App. Sept. 11, 2007) (citing Dorman O'Neal Elmore, Jr. v. State, No. E2005-
02263-CCA-R3-PC (Tenn. Crim. App. Aug. 29, 2006)). Given the strength of the
evidence presented at trial supporting the Defendant’s guilt, Agent Caldwell’s one-
sentence comment about the text messages sent from Ms. Hill to the Defendant was
unlikely to have had any material impact on the jury’s decision or its assessment of the
evidence. Therefore, the Defendant is not entitled to plain error relief.
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III. Clerical Errors
The Defendant notes in footnotes within his brief errors in the judgment with
respect to count three, and he seeks correction of the judgment form. First, the jury
convicted the Defendant in count three for his possession of Xanax, which is a Schedule
IV controlled substance, see T.C.A. § 39-17-412(a), (b). However, the judgment form
reflects that he was convicted of possessing a Schedule III controlled substance. The
judgment form should be corrected to reflect that the Defendant was convicted of
possessing a Schedule IV substance. Second, the judgment form reflects that the
Defendant was convicted of a Class D felony in count three, when he was punished one
class higher by the trial court under the drug-free zone statute according to the transcript,
See T.C.A. § 39-17-432(b)(1) (2019) (“A violation of § 39-17-417” occurring “within
one thousand feet (1,000’) of the real property that comprises ... a park shall be punished
one (1) classification higher than is provided in § 39-17-417(b)-(i) for such violation”).
Accordingly, the judgment form should be corrected to reflect that the Defendant was
convicted of a Class C felony.
CONCLUSION
Based upon the foregoing reasons, we affirm the judgments of the trial court.
However, we remand to the trial court for correction of the judgment form in count three
in accordance with this opinion.
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JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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