State of Tennessee v. Jawara Jones

04/30/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
March 20, 2019 Session
STATE OF TENNESSEE v. JAWARA JONES
Appeal from the Circuit Court for Maury County
No. 2016-CR-24742 David L. Allen, Judge
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No. M2017-01666-CCA-R3-CD
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A jury convicted the Appellant, Jawara Jones, of possession of cocaine, possession of
marijuana, driving on a revoked license, and tampering with evidence. He received a
total effective sentence of fifteen years, eleven months, and twenty-nine days. On appeal,
he contends (1) that the trial court erred by allowing the State to introduce proof of a
prior unindicted sale of cocaine, (2) that the trial court erred by allowing a police officer
to testify as an expert witness, and (3) that the trial court erred in sentencing the
Appellant. Upon review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
Joseph D. Baugh, Franklin, Tennessee (on appeal), and Kevin Latta, Columbia,
Tennessee (at trial), for the Appellant, Jawara Jones.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Brent A. Cooper, District Attorney General; and Patrick
Powell, Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Factual Background
The Appellant was charged with possession of .5 grams or more of cocaine with
intent to sell in a school zone, possession of marijuana, tampering with evidence, and
driving on a revoked license. The charges stemmed from a traffic stop on December 16,
2015.
At trial, Officer Neylan Barber testified that he worked with the Colombia Police
Department’s special response team and that the unit’s goal was to suppress all crime,
primarily drugs. Officer Barber said that he had extensive training in drug interdiction
and investigation.
Officer Barber said that on December 16, 2015, he was near the intersection of
East 11th Street and Bridge Street when he saw a Nissan Altima with an expired license
plate. He confirmed with the police dispatcher that the vehicle’s registration was invalid.
Officer Barber activated his patrol vehicle’s blue lights to initiate a traffic stop, and the
Altima stopped around the “1100 block of Woodland.” Officer Barber approached the
vehicle, and the Appellant, who was the driver, rolled down the driver’s side window two
or three inches. Officer Barber could not see inside the vehicle and asked the Appellant
to roll down the window further. After the Appellant complied, Officer Barber
immediately smelled the odor of marijuana coming from inside the vehicle.
Officer Barber asked the Appellant for his driver’s license, the vehicle’s
registration, and proof of insurance. The Appellant responded that he did not have any
identification, including a driver’s license. Officer Barber later learned that the
Appellant’s driver’s license had been revoked. The Appellant began looking through the
paperwork in the glove compartment in an attempt to find the registration papers and
advised Officer Barber that the vehicle did not belong to him.
After the Appellant exited the Altima at Officer Barber’s request, Officer Barber
saw the Appellant “tense up” and “breath[e] heav[ily].” Officer Barber noticed the
Appellant “was actively chewing on something.” Officer Barber asked the Appellant to
open his mouth, and when he complied, Officer Barber saw “clumps” of marijuana stuck
between the Appellant’s teeth. The Appellant also had an odor of unburned marijuana on
his breath. The officer questioned the Appellant about the smell of marijuana, and the
Appellant explained that he had been smoking marijuana. Officer Barber did not believe
the Appellant could have gotten marijuana stuck between his teeth by smoking it. Officer
Barber said that he had the experience and training to differentiate the smell of unburned
marijuana from the smell of burned marijuana. Officer Barber surmised that the
Appellant was eating the marijuana because he was “trying to destroy it or conceal it.”
Afraid the Appellant might further destroy the marijuana, Officer Barber handcuffed him
and advised him of his Miranda1 rights.
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
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Officer Barber said that he searched the Altima at the scene. During the search, he
found a bag of marijuana between the driver’s seat and door. He also found a bag
containing a white rocky substance he thought was crack cocaine between the middle
console and the passenger’s seat. While searching the Appellant, Officer Barber found
several bills that were folded into squares, and one of the squares contained marijuana.2
The Appellant admitted the drugs belonged to him. Testing by the Tennessee Bureau of
Investigation’s (TBI) crime laboratory revealed the substances were .4 grams of crack
cocaine and .39 grams of marijuana.
Officer Barber said that typically a drug user possessed no more than “a point,” or
.1 gram, of a drug but that the amount the Appellant possessed was four times greater
than that amount. Officer Barber said that crack cocaine usually came in “rock form” and
that the Appellant’s crack cocaine was in small pieces, which indicated that it had been
broken off of a larger piece of crack cocaine. Typically, crack cocaine that was intended
for sale was packaged in a corner that had been cut from a sandwich bag, but the
Appellant’s crack cocaine was in an intact sandwich bag.
Officer Barber said that he found an Apple iPhone 6 cellular telephone in the
Altima. The Appellant said the cellular telephone was his, and Officer Barber allowed
him to make a telephone call. Sometime thereafter, Officer Barber obtained a search
warrant for the telephone. He found numerous messages that had been received and sent
over the course of several days that indicated drug transactions. Officer Barber explained
that one incoming message referred to the Appellant’s owing someone “a dime,” which
was slang for ten dollars worth of marijuana. Other incoming messages requested
“chronic,” “turnips,” or “poke salad,” which were slang terms for marijuana. The
Appellant told one of the people requesting marijuana to call him. The Appellant also
received an inquiry about “a 40,” which Officer Barber said was a slang term for .4 grams
or approximately forty dollars worth of crack cocaine. Another message requested the
price of an “eight ball,” which was 3.5 grams of crack cocaine. During an exchange of
messages, someone asked if the Appellant had “some to sell,” and the Appellant
responded that the price would be “$260.”
Officer Barber testified that he measured the distance from Horace Porter School
to the location where the Appellant’s car was stopped. He determined that it was three
hundred and sixty-five feet to the school’s property line and five hundred feet to the front
door.
2
The State and defense counsel stipulated to the chain of custody and identity of the drugs.
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On cross-examination, Officer Barber acknowledged that he had never testified as
an expert witness. Officer Barber conceded that he had arrested drug dealers and found
large amounts of drugs, substantial sums of money, and weapons and that none of those
items were found in the instant case. Officer Barber noted that the Appellant had three
twenty-dollar bills, one ten-dollar bill, three five-dollar bills, and six one-dollar bills, but
Officer Barber did not consider the amount of money to be substantial. Officer Barber
explained that drug dealers commonly traveled with only the amount of drug they
planned to sell because they were aware the other items were additional indicators of
intent to sell.
Officer Barber noted that the marijuana he found on the Appellant was wrapped
inside a one-dollar bill. He said that marijuana was not sold in one-dollar increments but
that he had “seen drugs sold in dollar[] bills before.”
Officer Barber said that he did not find any burned marijuana in the Altima, but he
smelled unburned marijuana when the Appellant rolled down the window. He thought
the smell came from the marijuana in the Appellant’s mouth or from the bag of marijuana
that was found inside the vehicle. Officer Barber thought that someone who sold drugs
on a regular basis would be able to estimate the weight of a drug by sight.
On redirect examination, Officer Barber surmised that the Appellant was not
charged for an October cocaine sale because the police may have been using the
confidential informant to “get a bigger fish” or because the prosecuting officer had left
the department.
Officer Jonathan Hardison testified that in October 2015, he was working vice and
narcotics in the Columbia Police Department. On October 22, he assisted in a controlled
purchase from the Appellant. The police searched the confidential informant’s person
and vehicle prior to the purchase. After the search, the confidential informant was
supplied with cash, and the police followed him to the sale. The confidential informant
purchased a substance that field-tested positive for crack cocaine.
On cross-examination, Officer Hardison acknowledged he was assisting Officer
Hunter Kready with the October sale. He further acknowledged that he did not know
anything about the confidential informant’s trustworthiness, that he did not see the
transaction occur, and that he did not see the Appellant that day.
On redirect examination, Officer Hardison said that Officer Kready had taken a
job in South Carolina and no longer worked for the Columbia Police Department.
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The jury acquitted the Appellant of the charged offense of possession of .5 grams
or more of cocaine with the intent to sell in a drug-free school zone but found him guilty
of the lesser-included offense of simple possession of cocaine. The jury found the
Appellant guilty as charged on the remaining counts.
On appeal, the Appellant contends that the trial court erred by allowing the State
to introduce proof of the October sale of cocaine, arguing that it violated Tennessee Rule
of Evidence 404(b) and his right to confront the witnesses against him. The Appellant
further contends that the trial court erred by allowing Officer Barber to testify as an
expert witness. Finally, the Appellant challenges the length of the sentences imposed by
the trial court and the imposition of consecutive sentencing.
II. Analysis
A. Plain Error
The Appellant acknowledges that the evidentiary issues he raises on appeal were
not objected to at trial and were not raised in his motion for new trial and that he is
entitled to appellate relief only in the event of plain error.3 Tennessee Rule of Evidence
103(a) provides that
[e]rror may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is
affected, and (1) . . . [i]n case the ruling is one admitting
evidence, a timely objection or motion to strike appears of
record, stating the specific ground of objection if the specific
ground was not apparent from the context[.]
Our supreme court recently explained that “[t]he clear implication of Rule 103(d) is that
evidentiary objections not brought to the trial court’s attention at the appropriate time will
not be considered under plenary review.” State v. Alexander R. Vance, No. M2017-
01037-SC-R11-CD, 2020 WL 896735, at *17 (Tenn. at Nashville, Feb. 25, 2020).
Nevertheless, the failure to raise a contemporaneous objection does not preclude this
court from addressing “‘plain errors affecting substantial rights although they were not
brought to the attention of the court.’” Id. (quoting Tenn. R. Evid. 103(d)).
Generally, failure to raise an issue, other than sufficiency of the evidence or
sentencing, in a motion for a new trial constitutes waiver of that issue for purposes of
3
We further note that the Appellant’s notice of appeal was untimely by one day. However, the
State did not oppose waiver of the timely filing.
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appellate review. See Tenn. R. App. P. 3(e). However, Tennessee Rule of Appellate
Procedure 36(b) provides that “[w]hen necessary to do substantial justice, [this] court
may consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for a new trial or assigned as error on
appeal.” See also Tenn. R. Evid. 103(d); State v. Smith, 24 S.W.3d 274, 283 (Tenn.
2000); State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994). We may
only consider an issue as plain error when all five of 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.”
Adkisson, 899 S.W.2d at 641-42 (footnotes omitted); see also Smith, 24 S.W.3d at 283
(adopting the Adkisson test for determining plain error). Furthermore, 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 642 (internal quotation marks omitted) (quoting United States v.
Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).
1. Rule 404(b)
On appeal, the Appellant contends that the trial court “erred in allowing the State
to introduce propensity evidence of an unindicted sale of a quantity of controlled
substance by the Appellant within a year before this alleged offense.” The Appellant
contends that the evidence “contained hearsay,” “violated the Appellant’s right to
confront any witnesses against him,” and violated Tennessee Rule of Evidence 404(b).
The Appellant acknowledges that he was not convicted of possession of cocaine with the
intent to sell, but he argues that the admission of “the propensity evidence virtually
assured a conviction.” The State responds that the trial court did not err by admitting the
evidence under Rule 404(b). We agree with the State.
The record reveals that immediately prior to trial, defense counsel filed a motion
in limine to prevent the State from introducing proof of the Appellant’s involvement in
the October 22, 2015 drug sale. Defense counsel conceded that “a considerable amount
of case law” supported admitting the prior sale because it was relevant to whether the
Appellant possessed the cocaine in the instant case with the intent to sell. Nevertheless,
defense counsel argued that Tennessee Rule of Evidence 404(b) was a rule of exclusion.
Defense counsel noted that the Appellant was never charged for the October 22, 2015
drug sale. Defense counsel maintained that the facts of the instant case, without the
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introduction of the prior sale, were insufficient to establish that the Appellant had the
intent to sell the drugs. He notes that in this case the Appellant did not have a large
amount of drugs or money and did not have bags or scales; accordingly, the State had to
rely on propensity evidence to establish his intent to sell. The State responded that case
law supported admitting evidence of the prior sale to establish the Appellant’s intent to
sell in the instant case.
In a jury-out hearing, Officer Jonathan Hardison testified that on October 22,
2015, he was working for the Colombia Police Department, and he assisted Officers
Kready and Segroves with a controlled purchase of cocaine from the Appellant. Prior to
the purchase, Officer Hardison searched the confidential informant and his car to ensure
he had no money or drugs. The confidential informant then called the Appellant’s
telephone number, met the Appellant, and purchased the cocaine with money provided by
the officers.
Officer Hardison said that he accompanied the other officers as backup. He could
not recall if the purchase was recorded. After the purchase, the confidential informant
returned to the predetermined location and gave the substance he had purchased to
Officer Kready. Officer Hardison field tested the substance, which was .8 grams of
cocaine. The confidential informant was searched again, and no additional drugs or
money were found.
On cross-examination, Officer Hardison said that he did not know the confidential
informant’s identity but that he knew the confidential informant was not an undercover
law enforcement officer. Officer Hardison monitored the transaction by listening to live
audio, but no video was taken for review. Officer Hardison did not know why the
Appellant was not charged for the October sale.
The trial court examined the issue under Tennessee Rule of Evidence 404(b) and
found that a material issue existed other than conduct conforming with a character trait,
namely the Appellant’s possession of the cocaine with the intent to sell. The trial court
found that the State had established clear and convincing evidence of the prior sale,
noting that the confidential informant was monitored to and from the sale and that the
confidential informant called the Appellant to arrange the sale. Finally, the trial court
held that the probative value of the evidence was not outweighed by the danger of unfair
prejudice. Accordingly, the trial court ruled that the evidence was admissible.
After Officer Hardison testified about the prior sale, the trial court instructed the
jury:
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[Y]ou are to consider the evidence of a drug sale on October
22, 1015 only on the issue or for the purpose of whether the
[Appellant] intended to sell crack cocaine in this case, or
cocaine in this case. You may not use that proof as evidence
of the propensity of the [Appellant] to sell cocaine on
December 16, 2015.
Tennessee Rule of Evidence 404 provides:
(b) Other Crimes, Wrongs, or Acts. - Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity
with the character trait. It may, however, be admissible for
other purposes. The conditions which must be satisfied
before allowing such evidence are:
(1) The court upon request must hold a hearing outside the
jury’s presence;
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon
request state on the record the material issue, the ruling, and
the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or
act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value
is outweighed by the danger of unfair prejudice.
See also State v. Thacker, 164 S.W.3d 208, 240 (Tenn. 2005), State v. Parton, 694
S.W.2d 299, 302 (Tenn. 1985). A trial court’s decision regarding the admission of Rule
404(b) evidence will be reviewed under an abuse of discretion standard; however, “the
decision of the trial court should be afforded no deference unless there has been
substantial compliance with the procedural requirements of the Rule.” State v. DuBose,
953 S.W.2d 649, 652 (Tenn. 1997). Generally, “[o]nly in an exceptional case will
another crime, wrong, or bad act be relevant to an issue other than the accused’s
character. Such exceptional cases include identity, intent, motive, opportunity, or rebuttal
of mistake or accident.” State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).
In the instant case, the trial court complied with the procedure outlined in Rule
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404(b). The trial court held a hearing outside the jury’s presence and found that a
material issue existed other than conduct conforming with a character trait, namely the
Appellant’s intent to possess the crack cocaine with the intent to sell. The trial court
further found that the State had established the sale by clear and convincing evidence.
Finally, the trial court found that the probative value of the prior sale was not outweighed
by the danger of unfair prejudice. “This court has previously noted that evidence of prior
drug sales is probative of the defendant’s knowledge and intent to possess drugs for
resale.” State v. Richard Wayne Hampton, No. W2006-02189-CCA-R3-CD, 2008 WL
169645, at *4 (Tenn. Crim. App. at Jackson, Jan. 18, 2008); see State v. Allen Jean
Stephens, No. M2004-00531-CCA-R3-CD, 2005 WL 1541850, at *4 (Tenn. Crim. App.
at Jackson, June 23, 2005). “Furthermore, . . . the danger of unfair prejudice was
diminished by the court’s [limiting] instruction to the jury.” Richard Wayne Hampton,
No. W2006-02189-CCA-R3CD, 2008 WL 169645, at *4. We conclude the trial court did
not err in admitting the prior sale.
2. Expert Testimony
The Appellant contends that the trial court erred by allowing Officer Barber to
testify as an expert on the illegal drug business and also the “facts that the State must
prove to secure a guilty verdict.” The Appellant contends that “the experts are no longer
aiding the jury in its fact-finding; they are instructing the jury on the existence of the facts
needed to satisfy the elements of the charged offense.”
The Appellant acknowledges that he waived this issue and that this court may only
grant relief in the event of plain error. The State responds that the trial court did not err
by allowing Officer Barber to testify as an expert. We agree with the State.
Immediately prior to trial, defense objected to Officer Barber’s testifying as an
expert witness pursuant to Tennessee Rules of Evidence 702. Defense counsel contended
that allowing the State’s prosecuting witness to testify as an expert in drug investigations
was inappropriate and fundamentally unfair. Defense counsel further contended that
allowing Officer Barber to testify as both an expert witness and also a fact witness was
essentially allowing him to testify regarding the ultimate issue of the Appellant’s guilt.
The State responded that whether Officer Barber was the investigating officer was
irrelevant. The State contended that based on Officer Barber’s experience and training,
he qualified as an expert in drug investigations and that he “could give his opinion about
things as to intent, package, that kind of information.”
During a jury-out hearing, Officer Barber testified that he had been a police officer
for six years. At the time of trial, he had been an investigator for the vice narcotics
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division of the Columbia Police Department for three or four months. Prior to that time,
he was a member of a special response team and a crime suppression unit that was
“heavily . . . involved” with drug investigation and interdiction.
Officer Barber said that he had specialized training in narcotics and narcotics
investigation. Notably, he had attended two sixteen-hour courses: Introduction to Drug
Patrol Investigation and Introduction to Clandestine Laboratory Investigations. He also
attended courses related to “Highway Rural Drug Investigation and Patrol Criminal
Interdiction.” Additionally, he attended Operation Pipeline, a twenty-four-hour course on
drug interdiction and “police and dog encounter[s]” taught by the Drug Enforcement
Agency. He also attended Interdiction Plus training taught by the Tennessee Highway
Patrol, which was a forty-hour course. Further, he attended the Twenty-Fifth Annual
Motor Vehicle Criminal Interdiction training and Basic Narcotics Investigation, each of
which was a forty-hour course, and the Twenty-sixth Annual Motor Vehicle Criminal
Interdiction training, which was a thirty-two-hour course. He also attended several basic
level training and general in-service training courses. Officer Barber said, “I have made
roughly 400 cases myself just on drugs alone. That’s not counting other crimes and also
where I assisted in interviews of other people’s cases.” Finally, Officer Barber said that
he had testified as a prosecuting officer in at least 343 drug related cases. Officer Barber
said that he had worked with trained narcotics officers and that he had interviewed drug
users and sellers.
On cross-examination, Officer Barber said that he was required to perform forty
hours of continuing education every year. He thought the last course he attended that
specifically related to drug investigation was at the end of 2016.
On redirect examination, Officer Barber said that a person who was not familiar
with the drug community probably would not know what crack cocaine looked like, the
amount in which the drug was commonly sold, the usual price of the drug, or how the
drug typically was packaged.
The trial court found that the jury would be aided by expert testimony. The trial
court further found that Officer Barber’s knowledge, skill, experience, training, and
education qualified him as an expert. The court cautioned the State, “I do not anticipate
you will ask the question, do you believe the [Appellant] – is it your opinion the
[Appellant] is guilty, but I think as to packaging and such, that his testimony would be
permissible.”
Generally, expert testimony must be both relevant and reliable before it is
admissible. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997). The
trial court has broad discretion in determining the qualifications, admissibility, relevancy,
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and competency of expert testimony. See State v. Stevens, 78 S.W.3d 817, 832 (Tenn.
2002). This court will not overturn the trial court’s ruling on the admissibility of expert
testimony absent an abuse of that discretion. See State v. Ballard, 855 S.W.2d 557, 562
(Tenn. 1993).
The admission of expert testimony is governed by Tennessee Rules of Evidence
702. Rule 702 provides, “If scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise.” Evidence constitutes
“‘scientific, technical, or other specialized knowledge,’ if it concerns a matter that ‘the
average juror would not know, as a matter of course.’” State v. Murphy, 953 S.W.2d
200, 203 (Tenn. 1997) (quoting State v. Bolin, 922 S.W.2d 870, 874 (Tenn. 1996)).
Our supreme court has observed that an expert “may acquire the necessary
expertise through formal education or life experiences.” State v. Reid, 91 S.W.3d 247,
302 (Tenn. 2002). “However, the witness must have such superior skill, experience,
training, education, or knowledge within the particular area that his or her degree of
expertise is beyond the scope of common knowledge and experience of the average
person.” Id.
This court has held that “[w]hen the State establishes that an officer possesses the
necessary training, experience, and familiarity with the illicit drug trade, the officer may
testify about matters relating to the business of buying, selling, trading, and use of illegal
drugs pursuant to Rule 702 of the Tennessee Rules of Evidence.” State v. Elliot, 366
S.W.3d 139, 147 (Tenn. Crim. App. 2010). Officer Barber testified about his extensive
training and experience in drug investigation and interdiction. The trial court found that
Officer Barber had sufficient qualifications to testify as an expert and that the jury would
be aided by his testimony. See State v. Alfred Calvin Whitehead, No. M2014-00748-
CCA-R3-CD, 2015 WL 4148363, at *9 (Tenn. Crim. App. at Nashville, July 9, 2015);
State v. Dennis Marshall, No. W2011-00742-CCA-R3-CD, 2012 WL 4459810, at *12
(Tenn. Crim. App. at Jackson, Sept. 27, 2012).
Regarding the Appellant’s argument that Officer Barber’s testimony concerned the
ultimate issue of the case, we note that this court has held that such “testimony was
admissible because it aided the jury in understanding facts about drug sales which they
were unlikely to have known,” even when it concerned the officer’s belief regarding
whether the defendant possessed the drugs for sale or delivery. See State v. Brandon
Jones, No. W2013-00333-CCA-R3-CD, 2014 WL 6680680, at *9 (Tenn. Crim. App. at
Jackson, Nov. 26, 2014). Notably, Tennessee Rule of Evidence 704 provides that
“[t]estimony in the form of an opinion or inference otherwise admissible is not
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objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
See id. The Appellant is not entitled to plain error relief on this issue.
3. Confrontation
Next, the Appellant maintains that his right to confront the witnesses against him
was violated when the trial court allowed the State to introduce evidence of the October
sale of cocaine. The Appellant specifically objects to Officer Barber’s testimony about
(1) “[d]rug jargon” such as the slang terms for marijuana and crack cocaine, (2) how
marijuana is packaged for sale, (3) that a person’s intent to sell a controlled substance can
be determined from the drug’s weight and packaging, (4) the authentication of
photographs on the Appellant’s cellular telephone and their bearing on the Appellant’s
intent to sell drugs, (5) Officer Barber’s ability to make a visual identification of crack
cocaine, (6) the price of crack cocaine, (7) Officer Barber’s opinion that the sole reason
for the Appellant to eat marijuana was to destroy or conceal it, (8) the meaning of the text
messages on the Appellant’s cellular telephone and their bearing on his intent to sell
drugs, and (9) Officer Barber’s ability to differentiate between the smell of burned and
unburned marijuana. The Appellant asserts that Officer Barber could have obtained the
contested information only from a third party whom the Appellant was unable to cross-
examine. The Appellant did not raise the confrontation issue at trial. The State responds
that Officer Barber’s testimony was based on knowledge he obtained from his police
training, personal observations, and professional experience in drug investigations;
therefore, the trial court did not err by allowing Officer Barber to testify. We agree with
the State.
Although the Appellant contends that Officer Barber’s testimony was based upon
testimonial hearsay in violation of Crawford v. Washington, 541 U.S. 36 (2004), Officer
Barber testified that he obtained the information by his training and experience; he did
not reiterate the statements of another person or persons. Nothing in Officer Barber’s
testimony reflects that information came from testimonial statements, which alleviates
any Crawford concerns. Officer Barber’s knowledge of drug pricing and packaging as
well as the behavior of drug sellers and users was admissible as relevant expert
testimony. See United States v. Akins, 746 F.3d 590, 599-600 (5th Cir. 2014); United
States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009). Accordingly, we conclude that the
Appellant is not entitled to plain error relief on this issue.
B. Sentencing
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The Appellant challenges the sentences imposed by the trial court. The Appellant
contends that the length of the sentences was excessive, thereby violating “the Eighth
Amendment’s ban on cruel and unusual punishments, and that the sentences were not
proportional to the offenses committed. At the sentencing hearing, the State submitted
the Appellant’s presentence report as an exhibit. The State maintained, and defense
counsel stipulated, that the Appellant was a Range III offender.
The Appellant testified that he had prior felony offenses, several of which were
“many, many years old.” The Appellant said that he had three children who were less
than ten years old. Prior to trial, the Appellant performed odd jobs such as cutting grass.
He also received social security disability benefits. He said that during his incarceration,
his children would have to rely solely on their mother for financial support.
The Appellant acknowledged that he had a long-term problem with drugs. He
maintained that if he were granted an alternative sentence, he would continue to receive
his social security check and that he had been offered a job “[d]oing concrete” and that he
had another potential job “cutting grass and stuff.” He planned to live with his aunt if he
were granted release. The Appellant said that he had learned that he needed to stay away
from drugs, get a job, stay focused, and take care of his children. The Appellant
promised the court that he would not reoffend.
On cross-examination, the Appellant said that he had not used drugs since his
arrest. He said that when the officer stopped him, he told the officer that he had “smoked
a blunt.” He said that the marijuana in his teeth was from smoking marijuana, not from
chewing raw marijuana. The Appellant said that the only marijuana found was inside the
one-dollar bill in his pocket. He denied that the officer found marijuana inside the
vehicle. He conceded that he lied when he told the preparer of the presentence report that
he had last used marijuana in 1991. The Appellant acknowledged that he had used crack
cocaine a couple of months prior to his arrest. He further acknowledged that he had sold
crack cocaine. The Appellant said that he had never sold marijuana.
The Appellant said he had been on probation a “couple of times” and that he could
not remember how often his probation had been revoked. He denied selling crack
cocaine in October 2015. The Appellant acknowledged that he had not had a valid
driver’s license for many years but said that he continued to drive because he “had to . . .
get to where [he] was going.” The Appellant denied that anyone had called him and
asked for an “eight ball.” The Appellant acknowledged that he had photographs of crack
cocaine and marijuana on his cellular telephone but maintained the photographs came
from Facebook.
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The trial court applied enhancement factor (1), that the Appellant had a previous
history of criminal convictions or criminal behavior in addition to those necessary to
establish the appropriate range, and enhancement factor (8), that before trial or
sentencing, the Appellant failed to comply with the conditions of a sentence involving
release into the community. Tenn. Code Ann. § 40-35-114(1), (8). The trial court
specifically noted that the Appellant’s probationary sentences had been revoked on at
least ten prior occasions. The trial court found no mitigating factors. Tenn. Code Ann. §
40-35-113. Regarding consecutive sentencing, the trial court found that the Appellant
was a professional criminal and that he had an extensive record of criminal activity.
Tenn. Code Ann. § 40-35-115(b)(1), (2). Although the trial court did not find the
Appellant to be a dangerous offender, the trial court nevertheless found that consecutive
sentencing was reasonably related to the severity of the offenses committed and that an
extended sentence was necessary to protect society against further criminal conduct by
the Appellant. Tenn. Code Ann. § 40-35-115(b)(4); State v. Wilkerson, 905 S.W.2d 933,
938 (Tenn. 1995).
In considering whether to grant alternative sentencing, the trial court noted that the
Appellant had high blood pressure and bipolar disorder and that he was illiterate. The
court stated that a significant portion of the Appellant’s testimony was not truthful, that
his potential for rehabilitation was poor, and that he likely would reoffend. The court did
not think the Appellant could abide by the terms of probation, noting that measures less
restrictive than confinement had been frequently or recently applied unsuccessfully to the
Appellant. Tenn. Code Ann. § 40-35-103(1)(C).
The trial court sentenced the Appellant to concurrent sentences of eleven months
and twenty-nine days for the possession of cocaine conviction and for the possession of
marijuana conviction, Class A misdemeanors; to six months for the driving on a revoked
license conviction, a Class B misdemeanor; and to fifteen years for the tampering with
evidence conviction, a Class C felony. The trial court ordered that the misdemeanor
sentences be served concurrently with each other but consecutively to the felony
conviction for a total effective sentence of fifteen years, eleven months, and twenty-nine
days.
Initially, we note that the Appellant argues that this court should conduct its
sentencing review de novo. However, our supreme court has held that on appeal, the
length, range, or manner of service of a sentence imposed by the trial court are to be
reviewed under an abuse of discretion standard with a presumption of reasonableness.
State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012); see also State v. Pollard, 432 S.W.3d
851, 859 (Tenn. 2013) (applying the standard to consecutive sentencing); State v. Caudle,
388 S.W.3d 273, 278-79 (Tenn. 2012) (applying the standard to alternative sentencing).
In conducting its review, the trial court considers the following factors: (1) the evidence,
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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) 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 Tenn. Code Ann. §§ 40-35-102, -103, -210;
see also Bise, 380 S.W.3d at 697-98. The burden is on the Appellant to demonstrate the
impropriety of his sentence(s). See Tenn. Code Ann. § 40-35-401, Sent’g Comm’n Cmts.
In determining a specific sentence within a range of punishment, the trial court
should consider, but is not bound by, the following advisory guidelines:
(1) The minimum sentence within the range of
punishment is the sentence that should be imposed, because
the general assembly set the minimum length of sentence for
each felony class to reflect the relative seriousness of each
criminal offense in the felony classifications; and
(2) The sentence length within the range should be
adjusted, as appropriate, by the presence or absence of
mitigating and enhancement factors set out in §§ 40-35-113
and 40-35-114.
Tenn. Code Ann. § 40-35-210(c).
Although the trial court should consider enhancement and mitigating factors, the
statutory enhancement factors are advisory only. See Tenn. Code Ann. § 40-35-114; see
also Bise, 380 S.W.3d at 701; State v. Carter, 254 S.W.3d 335, 343 (Tenn. 2008). Our
supreme court has stated that “a trial court’s weighing of various mitigating and
enhancement factors [is] left to the trial court’s sound discretion.” Carter, 254 S.W.3d at
345. In other words, “the trial court is free to select any sentence within the applicable
range so long as the length of the sentence is ‘consistent with the purposes and principles
of [the Sentencing Act].’” Id. at 343 (quoting Tenn. Code Ann. § 40-35-210(d)). Appellate
courts are “bound by a trial court’s decision as to the length of the sentence imposed so
long as it is imposed in a manner consistent with the purposes and principles set out in
sections -102 and -103 of the Sentencing Act.” Id. at 346.
The Appellant challenges the length of his sentence for the tampering with
evidence conviction, contending that his sentence was excessive and disproportionate
because the trial court failed to consider the “prevalence” of that type of offense in the
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jurisdiction when it imposed the maximum sentence. Both the United States Constitution
and the Tennessee Constitution prohibit the imposition of cruel and unusual punishment.
West v. Schofield, 460 S.W.3d 113, 117 (Tenn. 2015). In State v. Harris, 844 S.W.2d
601, 602 (Tenn. 1992), our supreme court determined that the Tennessee Constitution
provides for proportionality review of non-capital sentences. See State v. Smith, 48
S.W.3d 159, 170-71 (Tenn. Crim. App. 2000). When conducting such a review, “the
sentence imposed is initially compared with the crime committed. Unless this threshold
comparison leads to an inference of gross disproportionality, the inquiry ends—the
sentence is constitutional.” Harris, 844 S.W.2d at 603 (citing Harmelin v. Michigan, 501
U.S. 957, 997-1009 (1991) (Kennedy, J., concurring in part)). This court has explained
that in determining whether a sentence is grossly disproportional, a court should examine:
(1) the nature of the crime, including whether society views
the crime as serious or relatively minor and whether the crime
is violent or non-violent; (2) the circumstances of the crime,
including the culpability of the offender, as reflected by his
intent and motive, and the magnitude of the crime; and (3) the
existence and nature of any prior felonies if used to enhance
the defendant’s penalty.
Smith, 48 S.W.3d at 171. Generally, if the punishment imposed is within the statutory
range and under well-established principles of state law, it will not be considered
excessive. State v. Flynn, 675 S.W.2d 494, 499 (Tenn. Crim. App. 1984).
The record establishes that the Appellant’s tampering with the evidence conviction
was a Class C felony. The Appellant was sentenced as a Range III, persistent offender.
Accordingly, he was subject to a sentence range of ten to fifteen years; and he was
eligible for release after serving forty-five percent of his sentence. Tenn. Code Ann. §§
39-16-503(b); 40-35-112(c)(3); 40-35-107.
The Appellant had an extensive criminal record in addition to those necessary to
establish his sentencing range, including at least one felony and ten misdemeanor
convictions, and he had violated probation on numerous occasions. See Tenn. Code Ann.
§ 40-35-114(1), (8). The Appellant admitted that he had a long-term drug problem and
that he had also sold drugs. The trial court found that the Appellant was not truthful with
the court and that his potential for rehabilitation was poor. Therefore, the trial court did
not abuse its discretion by sentencing the Appellant to the maximum in the range, and the
Appellant’s sentence was not grossly disproportionate.
The Appellant further contends that the trial court should not have imposed
consecutive sentencing because “his criminal record is not so extensive as to warrant
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consecutive sentences.” Generally, “[w]hether sentences are to be served concurrently or
consecutively is a matter addressed to the sound discretion of the trial court.” State v.
Adams, 973 S.W.2d 224, 230-31 (Tenn. Crim. App. 1997). Tennessee Code Annotated
section 40-35-115(b) contains the discretionary criteria for imposing consecutive
sentencing. The trial court imposed consecutive sentencing upon finding that the
Appellant was a professional criminal and that his record of criminal activity was
extensive. Tenn. Code Ann. § 40-35-115(1), (2). The Appellant does not challenge the
trial court’s finding that he was a professional criminal, and we note that the Appellant
acknowledged he had a history of selling drugs. Further, given the Appellant’s numerous
prior convictions, we conclude that the trial court did not abuse its discretion by finding
that the Appellant had an extensive criminal history. Because the criteria for determining
consecutive sentencing “are stated in the alternative[,] . . . only one need exist to support
the appropriateness of consecutive sentencing.” State v. Mickens, 123 S.W.3d 355, 394
(Tenn. Crim. App. 2003). The Appellant is not entitled to relief.
III. Conclusion
Finding no error, we affirm the judgments of the trial court.
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NORMA MCGEE OGLE, JUDGE
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