State of Tennessee v. Anthony Harville

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 21, 2016
STATE OF TENNESSEE v. ANTHONY HARVILLE
Appeal from the Criminal Court for Smith County
No. 2013-CR-343 John D. Wootten, Jr., Judge
___________________________________
No. M2015-02116-CCA-R3-CD – Filed August 9, 2016
___________________________________
Defendant, Anthony Harville, was convicted of three counts of the sale of a Schedule II
controlled substance and received an effective sentence of fifteen years. Defendant
appeals his convictions, challenging the sufficiency of the evidence and his sentence.
After a review, we affirm the convictions and sentences.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.
Comer L. Donnell, District Public Defender; Michael W. Taylor, Assistant Public
Defender, for the appellant, Anthony Nelson Harville.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Tom P. Thompson, District Attorney General; and Jason Lawson,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In December of 2013, Defendant was indicted on one count of the sale of
oxycodone and two counts of the sale of methamphetamine after a series of controlled
buys with a confidential informant.
In all three transactions at issue herein, Derrick Goolsby acted as the primary
confidential informant. His girlfriend, Elizabeth Domiano, was the driver of the car used
for transportation during the drug purchases. Prior to becoming a confidential informant,
Mr. Goolsby was arrested on methamphetamine-related charges. He agreed to serve as a
confidential informant in return for a recommendation from the Drug Task Force for
favorable treatment on his sentence.
On May 15, 2013, Mr. Goolsby and Ms. Domiano met with the Drug Task Force.
In preparation for the controlled drug transaction, law enforcement personnel searched
Mr. Goolsby and his car. He was given $100 for the controlled buy with Defendant. Ms.
Domiano was the driver of the car because Mr. Goolsby did not have a driver‟s license.
She was not searched. However, she agreed to confidential informant terms and
conditions and was subject to search. Both Mr. Goolsby and Ms. Domiano were fitted
with recording devices.
The pair met Defendant on Bright Street in South Carthage, near Defendant‟s
residence. Mr. Gooslsby and Ms. Domiano drove to the meeting location in their car and
waited to be approached by Defendant. Soon thereafter, Defendant handed Mr. Goolsby
nine oxycodone pills wrapped in a paper towel in exchange for the money provided by
the task force. Defendant also arranged a future “ice” purchase. Mr. Goolsby testified
that ice, “on the street, refers to a different form of methamphetamine generally believed
to be more pure and it looks like shards of glass or shard of ice, . . . [from] a difference in
the finishing process and manufacturing it.”
Mr. Goolsby returned to the meeting location with the Drug Task Force. He was
searched and turned over the pills provided by Defendant during the controlled buy. In
exchange for his cooperation, law enforcement personnel paid Mr. Goolsby $100. Ms.
Domiano did not receive any remuneration for her participation. The controlled buy was
taped with both video and audio recording devices. The pills were sent to the Tennessee
Bureau of Investigation (“TBI”) for analysis and were determined to be oxycodone.
On June 5, 2013, the same procedure was followed. Mr. Goolsby and Ms.
Domiano were fitted with recording devices and travelled to the prearranged meeting spot
in the car. During this transaction, Mr. Goolsby purchased methamphetamine in the form
of ice from Defendant for $100. The drugs were bagged and sent to TBI for analysis.
The TBI confirmed the weight as .22 grams of methamphetamine.
Lastly, on June 12, 2015, Mr. Goolsby again purchased ice from Defendant under
the direction of the Drug Task Force. The transaction was again recorded. The substance
was confirmed as .14 grams of methamphetamine by the TBI.
At the conclusion of the jury trial, Defendant was convicted of all three offenses as
charged in the indictment. The trial court sentenced Defendant to three years for the sale
of oxycodone and six years on each count of the sale of methamphetamine, to be served
consecutively, for a total effective sentence of fifteen years. The trial court denied
Defendant‟s motion for new trial. Defendant filed a timely notice of appeal.
-2-
Analysis
I. Sufficiency of the Evidence
On appeal Defendant alleges that the evidence was insufficient to support the
convictions. Specifically, Defendant argues that there was “reasonable doubt that
[Defendant] committed the offenses” because Ms. Domiano “was never searched before
or after any of the alleged drug buys,” and she was “capable of concealing drugs and
money on her person.” Defendant suggests that Ms. Domiano had an incentive to keep
Mr. Goolsby out of jail because she was pregnant with his child. As a result of this
possibility, Defendant insists that reasonable doubt exists as to his guilt. The State
disagrees.
At the outset, we note that Defendant‟s brief contains a mere one sentence
statement of the standard of review for the sufficiency of the evidence. Ordinarily,
“[i]ssues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.” Tenn. Ct. Crim. App. R.
10(b). We caution Defendant that following the rules of this Court is the safest way to
ensure a full resolution of the issues presented on appeal. However meager the brief on
appeal, we determine Defendant has presented this Court with a brief adequate enough to
result in a resolution of the issues.
When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question
the reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury‟s verdict replaces
the presumption of innocence with one of guilt; therefore, the burden is shifted onto the
defendant to show that the evidence introduced at trial was insufficient to support such a
verdict. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002). The prosecution is entitled to
the “„strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.‟” State v. Goodwin, 143 S.W.3d 771, 775
(Tenn. 2004) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). It is not the role
of this Court to reweigh or reevaluate the evidence, nor to substitute our own inferences
for those drawn from the evidence by the trier of fact. Reid, 91 S.W.3d at 277.
Questions concerning the “„credibility of the witnesses, the weight to be given their
testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury
as the trier of fact.‟” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting State
v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “„A guilty verdict by the jury,
approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution‟s theory.‟” Reid, 91 S.W.3d at 277
-3-
(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). This standard of review
applies whether the conviction is based upon direct evidence, circumstantial evidence, or
a combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).
Viewing the evidence in the light most favorable to the State, the videotape and
audio recording of the controlled drug transactions entered into evidence at trial bolster
Mr. Goolsby‟s testimony that Defendant sold him the drugs on all three occasions. Ms.
Domiano‟s testimony also supported this theory. The jury was aware that Ms. Domiano
was not individually searched prior to each controlled drug purchase. Moreover, the
weight and content of the drugs was confirmed by the TBI. The jury obviously
accredited the testimony of the State‟s witnesses. It is not within our purview to question
the credibility determination made by the jury. Smith, 24 S.W.3d at 279 (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956). Therefore, we conclude that the evidence was
sufficient to support the convictions.
II. Sentencing
Next, Defendant argues that the trial court improperly enhanced his sentence,
failed to consider mitigating factors, erred in finding that a sentence of confinement was
necessary in order to avoid depreciating the seriousness of the offense, and improperly
failed to order an alternative sentence.
Initially, we point out that Defendant‟s brief mischaracterizes the standard of
review with regard to sentencing as de novo. Under current law, when a defendant
challenges the length or manner of service of a within-range sentence, this Court reviews
the trial court‟s sentencing decision under an abuse of discretion standard with a
presumption of reasonableness. State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012);
State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). This presumption applies to “within-
range sentencing decisions that reflect a proper application of the purposes and principles
of the Sentencing Act.” Bise, 380 S.W.3d at 707. A trial court abuses its discretion in
sentencing when it “applie[s] an incorrect legal standard, or reache[s] a decision which is
against logic or reasoning that cause[s] an injustice to the party complaining.” State v.
Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v. Herzke, 924 S.W.2d 652,
661 (Tenn. 1996)). This deferential standard does not permit an appellate court to
substitute its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d
920, 927 (Tenn. 1998). The defendant bears the burden of proving that the sentence is
improper. T.C.A. § 40-35-101, Sentencing Comm‟n Cmts.
In reaching its decision, the trial court must consider the following factors: (1) the
evidence, if any, received at the trial and the sentencing hearing; (2) the presentence
report; (3) the principles of sentencing and arguments as to sentencing alternatives; (4)
-4-
the nature and characteristics of the criminal conduct involved; (5) evidence and
information offered by the parties on enhancement and mitigating factors; (6) any
statistical information provided by the administrative office of the courts as to sentencing
practices for similar offenses in Tennessee; (7) any statement by the appellant in his own
behalf; and (8) the potential for rehabilitation or treatment. See T.C.A. § 40-35-102, -
103, -210(b); see also Bise, 380 S.W.3d at 697-98. Additionally, the sentence imposed
“should be no greater than that deserved for the offense committed” and also “should be
the least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(2), (4).
This Court will uphold the sentence “so long as it is within the appropriate range
and the record demonstrates that the sentence is otherwise in compliance with the
purposes and principles listed by statute.” Bise, 380 S.W.3d at 709-10. The weighing of
various enhancement and mitigating factors is within the sound discretion of the trial
court. State v. Carter, 254 S.W.3d 335, 345 (Tenn. 2008). The misapplication of an
enhancement or mitigating factor by the trial court “does not invalidate the sentence
imposed unless the trial court wholly departed from the 1989 Act, as amended in 2005.”
Bise, 380 S.W.3d at 706.
Defendant‟s sentences are within the applicable ranges. Defendant was convicted
of three Class C felonies as a standard offender. As such, he was subject to a range of
punishment from three to six years on each offense. See T.C.A. § 40-35-112(a)(3). The
trial court identified several enhancement factors on the record and considered the
principles and purposes of the Sentencing Act. The trial court applied enhancement
factor (1), that Defendant had a previous history of criminal convictions in addition to
those necessary to establish the appropriate range, because the presentence report
indicated that Defendant had at least seventeen prior criminal convictions, including one
felony conviction for the sale of cocaine, going back a period of seventeen years. See id.
§ 40-35-114(1). Additionally, according to the presentence report, Defendant previously
had a sentence of probation revoked. See id. § 40-35-114(8). The trial court also noted
that Defendant had no hesitation about committing a crime when the risk to human life
was high because he was dealing in “poison.” See id. § 40-35-114(10). The trial court
did not find that any mitigating factors were applicable, including those proffered by
defense counsel—remorse and the fact that Defendant had a family. The trial court noted
that Defendant did not express any remorse for the crimes committed. Lastly, the trial
court specifically noted that confinement was necessary in order to avoid depreciating the
seriousness of the offense. Based on the record, the trial court did not abuse its discretion
in determining the length of Defendant‟s sentences.
With regard to consecutive sentencing, our supreme court has held that “the abuse
of discretion standard, accompanied by a presumption of reasonableness, applies to
consecutive sentencing determinations” “if [the trial court] has provided reasons on the
-5-
record establishing at least one of the seven grounds listed in Tennessee Code Annotated
section 40-35-115(b)[.]” State v. Pollard, 432 S.W.3d 851, 859-62 (Tenn. 2013). In
other words, the imposition of consecutive sentencing is subject to the general sentencing
principles that the overall sentence imposed “should be no greater than that deserved for
the offense committed” and that it “should be the least severe measure necessary to
achieve the purposes for which the sentence is imposed[.]” T.C.A. § 40-35-103(2), (4).
Further, “[s]o long as a trial court properly articulates reasons for ordering consecutive
sentences, thereby providing a basis for meaningful appellate review, the sentences will
be presumed reasonable and, absent an abuse of discretion, upheld on appeal.” Pollard,
432 S.W.3d at 862 (citing Tenn. R. Crim. P. 32(c)(1) (“The order [for consecutive
sentences] shall specify the reasons for this decision and is reviewable on appeal.”)); see
also Bise, 380 S.W.3d at 705.
In this case, the trial court determined consecutive sentences were necessary
because Defendant was a professional criminal, had an extensive criminal history, and
was a dangerous offender. “Any one of these grounds is a sufficient basis for the
imposition of consecutive sentences.” Pollard, 432 S.W.3d at 862 (citing State v.
Dickson, 413 S.W.3d 735, 748 (Tenn. 2013)). However, when consecutive sentencing is
imposed based upon the dangerous offender classification, see T.C.A. § 40-35-115(b)(4),
the record must also demonstrate that the total sentence is “reasonably related to the
severity of the offenses” and “necessary in order to protect the public from further
criminal acts” by the defendant. Pollard, 432 S.W.3d at 863; see also State v. Wilkerson,
905 S.W.2d 933, 939 (Tenn. 1995). “The need for the additional findings before
imposing consecutive sentencing on the basis of the „dangerous offender‟ provision
arises, in part, from the fact that this category „is the most subjective and hardest to
apply.‟” State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (quoting State v. Lane, 3
S.W.3d 456, 461 (Tenn. 1999)).
In our view, the trial court made the requisite Wilkerson findings to support its
determination that Defendant is a dangerous offender. The trial court found that
Defendant‟s behavior of being involved in the sale of methamphetamine was akin to
“dealing in poison” and “indicates little or no regard for human life and no hesitation
about committing a crime where the risk to human life is great” because it “affects not
just the seller, but the customer, and it affects those that make it.” The trial court
determined that confinement was necessary to protect the public from further criminal
acts and was reasonably related to the severity of the offense. In addition, the trial court
named two other statutory reasons for ordering Defendant to serve the sentences
consecutively—that Defendant was a professional criminal and had an extensive criminal
history. The trial court commented that the “professional criminal” finding was the
“weaker of the three factors” but nevertheless determined that Defendant was a
professional criminal. The trial court did not abuse its discretion in sentencing Defendant
consecutively.
-6-
Lastly, with regard to the denial of an alternative sentence, we acknowledge that
Defendant in this case was eligible for probation because the actual sentence imposed for
each conviction was ten years or less and the offenses for which the defendant was
sentenced are not specifically excluded by statute. T.C.A. § 40-35-303(a); State v.
Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986) (concluding that a defendant is eligible
for probation if each of the sentences is ten years or less regardless of the effective
sentence). The trial court shall automatically consider probation as a sentencing
alternative for eligible defendants; however, the defendant bears the burden of proving
his or her suitability for probation. Id. § 40-35-303(b). In addition, “the defendant is not
automatically entitled to probation as a matter of law.” Id. § 40-35-303(b), Sentencing
Comm‟n Cmts. Rather, the defendant must demonstrate that probation would “„serve the
ends of justice and the best interest of both the public and the defendant.‟” State v.
Carter, 254 S.W.3d 335, 347 (Tenn. 2008) (quoting State v. Housewright, 982 S.W.2d
354, 357 (Tenn. Crim. App. 1997)).
When considering probation, the trial court should consider the nature and
circumstances of the offense, the defendant‟s criminal record, the defendant‟s
background and social history, the defendant‟s present condition, including physical and
mental condition, the deterrent effect on the defendant, and the best interests of the
defendant and the public. See State v. Kendrick, 10 S.W.3d 650, 656 (Tenn. Crim. App.
1999) (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978)). The principles of
sentencing also require the sentence to be “no greater than that deserved for the offense
committed” and “the least severe measure necessary to achieve the purposes for which
the sentence is imposed.” T.C.A. § 40-35-103(2), (4). In addition, “[t]he potential or
lack of potential for the rehabilitation or treatment of the defendant should be considered
in determining the sentence alternative or length of a term to be imposed[,]” and “[t]he
length of a term of probation may reflect the length of a treatment or rehabilitation
program in which participation is a condition of the sentence[.]” Id. § 40-35-103(5).
Moreover, our supreme court has held that truthfulness is a factor which the court may
consider in deciding whether to grant or deny probation. State v. Bunch, 646 S.W.2d
158, 160 (Tenn. 1983) (citing State v. Poe, 614 S.W.2d 403, 404 (Tenn. Crim. App.
1981)).
Based upon the pre-sentence report, the trial court found that Defendant had
seventeen prior offenses. The trial court expressed doubt with regard to Defendant‟s
ability to be rehabilitated based on the fact that he had been involved in drug treatment
programs in the past and that they “obviously” did not work. The record shows that the
trial court considered the relevant sentencing considerations, and Defendant has not
established that the trial court abused its discretion in denying alternative sentencing or
“otherwise overc[a]me the presumption of reasonableness afforded sentences [that]
-7-
reflect a proper application of the purposes and principles of our statutory scheme.” See
Caudle, 388 S.W.3d at 280. Defendant is not entitled to relief.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
TIMOTHY L. EASTER, JUDGE
-8-