State of Tennessee v. Mary Lee Dillihunt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 7, 2003
STATE OF TENNESSEE v. MARY LEE DILLIHUNT
Direct Appeal from the Circuit Court for Hardin County
No. 8076 C. Creed McGinley, Judge
No. W2002-00843-CCA-R3-CD - Filed May 16, 2003
The defendant was convicted of delivery of less than .5 grams of cocaine, a Class C felony, and
sentenced to eight years as a Range II, multiple offender, to be served consecutively to a sentence
for a prior conviction. In a timely appeal to this court, she raises the sole issue of whether the
evidence was sufficient to support her conviction. Following our review, we affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.
Stephanie L. Prentis, Savannah, Tennessee, for the appellant, Mary Lee Dillihunt.
Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;
G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
The defendant, Mary Lee Dillihunt, was charged in a two-count indictment with the sale and
delivery of less than .5 grams of a Schedule II controlled substance (cocaine), with both counts
arising out of a November 8, 2000, transaction in Savannah with a confidential informant who was
working undercover for law enforcement officials. The State’s first witness at the defendant’s trial
was Savannah Police Officer Tim Cunningham, who testified that he was an investigator assigned
to the Twenty-Fourth Judicial District Drug Task Force. Officer Cunningham said that the
confidential informant involved in the case, Jo Ellen Kee, had prior arrests and had agreed to work
with the task force in order to help her own case. Officer Cunningham arranged for Kee to be
established in an apartment in Savannah and showed her the areas in which the task force wanted
her to concentrate, with instructions that she “get out and meet with folks,” informing him when
someone became comfortable enough to sell her drugs so that he could arrange a time and place for
the transaction to occur. To record the transaction, Kee was provided with an automobile that had
hidden cameras installed in each side door, recorders placed in the locked trunk, and a transmitter
permanently attached under the dash. The transmitter in Kee’s vehicle sent a signal through a
repeater into the separate vehicle Officer Cunningham used so that he could monitor the
conversations in Kee’s vehicle.
Officer Cunningham testified that Kee telephoned him on the evening of November 7, 2000,
to inform him that she had met with the defendant. He met Kee the following afternoon at their
designated location under the river bridge, thoroughly searched both her person and her vehicle to
insure she had no drugs, set up the audio and video equipment in her car, and gave her $70 in cash.
Kee then drove through town to the home of Richard Taylor, where Officer Cunningham briefly lost
contact with her when she exited the vehicle. Shortly thereafter, Kee returned to her vehicle and told
Cunningham that Taylor was on his way out to her car. Officer Cunningham explained that Kee was
not in his sight at the time and kept him informed of her actions, via the transmitter, by talking aloud
inside the vehicle. Next, Taylor got into Kee’s vehicle and directed Kee to the defendant’s home.
Officer Cunningham testified that he was parked at a location between Taylor’s home and the
defendant’s, and saw Kee and Taylor drive past him on their way to the defendant’s home, with Kee
in the driver’s seat and Taylor in the front passenger seat. Remaining at the same location, he heard
the defendant and Taylor engaging in conversation and Kee, Taylor, and the defendant as they
departed in Kee’s vehicle from the defendant’s home. Next, he saw Kee drive past him with Taylor
still in the front passenger seat and the defendant in the backseat behind Kee.
Officer Cunningham testified he lost sight of Kee’s vehicle after following her into the New
Town area, but was able to continue monitoring the sounds inside the vehicle. His next contact with
Kee occurred after she had dropped off the defendant and Taylor upon the completion of the
transaction, when she informed him via the transmitter that she would meet him back at the bridge.
There, she handed him the crack cocaine she had purchased, “scoop[ing] it” from her hand into a
small bag he held open, which he then sealed into a larger evidence bag and subsequently sent to the
Tennessee Bureau of Investigation (“TBI”) laboratory in Jackson for identification. Officer
Cunningham identified the videotape of the transaction, which was played before the jury and
admitted as an exhibit in the case.1
Jo Ellen Kee testified she was working as a confidential informant for the drug task force in
November 2000. She said she was riding through town in a car with a man named “Snuffy” on the
evening of November 7 when the defendant approached to show Snuffy the “little crumb” of crack
cocaine she had bought with the $7 he had given her. When Kee asked if the defendant could “hook
[her] up,” the defendant told her she could if Kee gave her something for doing so and told Kee to
come by her house the next day.
1
The defendant did not includ e the vid eotap e in the record before this co urt.
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Kee testified she met Officer Cunningham at their designated meeting place the next day,
where he “wired [her] up,” searched her, and gave her $70. After first picking up Richard Taylor
at his home, she drove to the defendant’s house,2 blew her horn, and asked the defendant when she
came outside if she could still hook her up. The defendant responded by asking if she had been to
Michael Taylor’s house, and she told the defendant she had, but he was not at home. At that point,
the defendant got into the backseat of Kee’s car, and Kee told her that she wanted “a fifty.” Kee then
drove, at the defendant’s direction, to Harlem Street, where the defendant had her stop and back into
the driveway of an empty lot when she “spotted the guys that they [the defendant and Taylor] going
[sic] to get the dope from.” Kee testified she gave the defendant $70 and the defendant got out of
the car, leaving her and Taylor behind. When the defendant returned, she had some “dope” in each
hand. Kee described what the defendant did upon her return to the car:
Well, she stood at the door first before she got in the car. She
handed me the dope. She had my dope in her right hand. She had
hers in her left hand. She was showing me what I had got and what
she had got, and she handed it to me through the window and got in.
Kee testified the defendant wanted to smoke her cocaine in the car, but she would not let her.
Instead, she drove the defendant and Taylor to Taylor’s residence, promising to return in thirty
minutes to pick up the defendant, before driving to meet Officer Cunningham to turn over the
cocaine the defendant had given her. Kee testified on cross-examination that she had agreed to work
for the drug task force with the expectation of having her probation, which she had violated,
reinstated for another year. She acknowledged she had first approached the defendant about
purchasing drugs and that the defendant had not initiated the transaction. She denied she had ever
used drugs with the defendant.
TBI Special Agent Forensic Scientist Brian Eaton testified that he analyzed the substance
submitted by Officer Cunningham and determined it to be .1 grams of cocaine, in the form
commonly known as crack cocaine.
The defendant testified that she was addicted to crack cocaine and realized she needed help
to overcome her addiction. She said she had stopped using the drug at one point, but started using
again after her son was murdered and she “went in a depression.” She never approached Kee about
obtaining drugs for her, and agreed to go with Kee to buy the drugs only because she was an addict
and helping Kee was the only way she had of getting cocaine for herself. On cross-examination, the
defendant acknowledged she had taken $70 from Kee to buy crack cocaine and had returned to Kee’s
car and poured Kee’s “fifty” of crack cocaine into her hand.
2
Kee explained that, although Officer Cunningham had already shown her where the defendant lived, she had
Taylor direct her to the defendant’s home in order to maintain her cover, as the defendant had not given Kee her address.
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After deliberating, the jury found the defendant guilty on the delivery count of the indictment,
and set a $2000 fine. Following the denial of her motion for a new trial, the defendant filed a timely
appeal to this court, raising the sole issue of whether the evidence was sufficient to support her
conviction.
ANALYSIS
Sufficiency of the Evidence
The defendant contends the evidence was insufficient for a rational trier of fact to find her
guilty of the delivery of cocaine beyond a reasonable doubt. She points out that she was approached
by the confidential informant, and argues that her walking from the informant’s vehicle to the drug
dealer’s door and back “should not be enough to constitute delivery of a controlled substance.” The
State contends that the evidence showed that the defendant knowingly delivered crack cocaine to the
confidential informant and, thus, was clearly sufficient to support the jury’s verdict. We agree with
the State.
When the sufficiency of the convicting evidence is challenged on appeal, the relevant
question of the reviewing court is “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed.
2d 560, 573 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.”). All questions
involving the credibility of witnesses, the weight and value to be given the evidence, and all factual
issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App.
1987). “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
To establish the defendant’s guilt of the offense, the State had to prove that she knowingly
delivered less than .5 grams of cocaine. See Tenn. Code Ann. § 39-17-417(a)(2), (c)(2) (Supp.
2002). “Deliver” or “delivery” is defined as “the actual, constructive, or attempted transfer from one
person to another of a controlled substance, whether or not there is an agency relationship.” Id. §
39-17-402(6).
The evidence in this case overwhelmingly supports the jury’s verdict. Kee testified that the
defendant directed her to a location on Harlem Street, took $70 from Kee, exited the vehicle, and
returned with the “dope,” some of which she poured into Kee’s hand. Brian Eaton, the TBI agent
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who analyzed the substance Kee received from the defendant, identified it as .1 grams of cocaine.
The transaction was not only recorded on videotape, but the defendant herself corroborated the
essential details, acknowledging that she delivered cocaine to Kee in her vehicle after having
received $70 from her with which to purchase the drug. The fact that Kee initiated the transaction
or that the defendant responded because she was a drug addict is irrelevant; police officers clearly
did not lure the defendant into committing a crime for which she was not otherwise predisposed, and
the defendant did not raise the statutory defense of entrapment at trial. See Tenn. Code Ann. § 39-
11-505; see also State v. Stephen Neil Kennedy, No. 02C01-9706-CC-00203, 1998 WL 161072, at
*4 (Tenn. Crim. App. Apr. 8, 1998) (“The use of paid informants to combat drug trafficking and to
infiltrate criminal enterprises is recognized as necessary and permissible.”) (citing Hampton v.
United States, 425 U.S. 484, 495, 96 S. Ct. 1646, 1652, 48 L. Ed. 2d 113 (1976) (Powell, J.
concurring)). We conclude, therefore, that the evidence was sufficient for the jury to find the
defendant guilty of the delivery of less than .5 grams of cocaine beyond a reasonable doubt.
CONCLUSION
Based on our review of the record, we conclude that the evidence was sufficient to sustain
the defendant’s conviction for delivery of less than .5 grams of cocaine, a Class C felony.
Accordingly, we affirm the judgment of the trial court.
___________________________________
ALAN E. GLENN, JUDGE
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