State of Tennessee v. Arturo Jaimes-Garcia

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 18, 2010 Session

STATE OF TENNESSEE v. ARTURO JAIMES-GARCIA

Direct Appeal from the Criminal Court for Davidson County
No. 2006-D-3175 Mark J. Fishburn, Judge

No. M2009-00891-CCA-R3-CD - Filed December 22, 2010

A Davidson County jury convicted the Defendant, Arturo Jaimes-Garcia, of multiple drug
offenses relating to three different drug sales, and the trial court imposed an effective
sentence of eighteen years in the Tennessee Department of Correction. On appeal, the
Defendant contends: (1) the evidence is insufficient to sustain his convictions; (2) the Drug-
Free School Zone statute is unconstitutionally vague and unconstitutional as applied to the
facts of this case; (3) the trial court improperly enhanced his punishment because the State
did not give him adequate notice of its intent to seek an enhanced sentence; (4) the State
committed prosecutorial misconduct during its closing argument; and (5) three of the
Judgment of Conviction forms contain errors. The State contends that this appeal should be
dismissed because the Defendant’s amended motion for new trial was not timely filed, and
he failed to file a timely notice of appeal. After a thorough review of the record and
applicable authorities, we conclude that the trial court improperly permitted the Defendant
to file an amended motion for new trial. Therefore, we review the issue properly preserved
by his original motion for new trial, the sufficiency of the evidence, and conclude that the
evidence is sufficient to sustain all of his convictions. We conclude, however, that two of
those convictions violate his double jeopardy protections. Those convictions are, therefore,
merged or dismissed in accordance with the reasoning below. Further, we have reviewed for
plain error the issues the Defendant failed to properly preserve but hold that the Defendant
is not entitled to relief on any of those issues. This case is remanded for the entry of
corrected judgments in accordance with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
in part, Reversed in Part and Remanded

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES
and J ERRY L. S MITH, JJ., joined.
Chance Deason, Henderson, Tennessee (at trial) and Peter D. Heil (on appeal), Nashville,
Tennessee, for the Appellant, Arturo Jaimes-Garcia a/k/a Antonio James.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; John Zimmerman and
Kristen Menke, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION
I. Facts

This case arises from the Defendant’s sale of cocaine in a school zone to a
confidential informant on three occasions. For these offenses, a Davidson County grand jury
indicted the Defendant for: one count of conspiracy to sell 300 grams or more of cocaine
within 1000 feet of a school; two counts of sale of 26 grams or more of cocaine; one count
of possession with intent to deliver 300 grams or more of cocaine within 1000 feet of a
school; one count of sale of 300 grams or more of cocaine; and one count of possession with
intent to sell over 0.5 grams of cocaine. At the Defendant’s trial, the State presented the
following evidence: Several officers, including James McWright, an officer with the
Nashville Metro Police Department’s 20th Judicial District drug task force, testified about
the investigation that led to the arrest of the Defendant, his wife, his nephew, and his
nephew’s girlfriend. The investigation began when officers arrested Walter Sawyers, who
agreed to cooperate with police and told police that a man named “Juan” supplied him with
drugs. In cooperation with police, Sawyers arranged to purchase drugs from his supplier,
“Juan,” in a series of three transactions. Sawyers informed officers that “Juan’s Uncle”
sometimes assisted in the drug transactions.

Before the first drug transaction on August 3, 2006, officers knew only that Sawyers’s
supplier’s name was “Juan” and that Juan and his uncle both participated in selling Sawyers
drugs. Sawyers, who said he did not know where Juan or his uncle lived, contacted Juan by
telephone and arranged the purchase of two ounces of cocaine for $1200. Officers gave
Sawyers money to purchase the drugs. At the arranged time, Juan’s uncle, who officers then
determined was the Defendant, arrived and conducted the drug sale. Officers then followed
the Defendant to apartment C-3 in the Holly Hills apartment complex, where the Defendant
entered with a key, and the officers then began surveillance of his residence. Officer
McWright followed the Defendant to multiple gas stations and apartment complexes that day
before he terminated his surveillance. The officers intermittently conducted surveillance of
the apartment they saw the Defendant enter, and they discovered that the Defendant also used
apartment D-8 in the same apartment complex. Officers identified “Juan” as Juan Jeminez-
Jaimes. Officer McWright obtained electric company records, which indicated that the
electric bill for apartment C-3 was listed in the name Betsy Elizabeth Martinez, who he later
learned was Jeminez-Jaimes’s girlfriend, and the electric bill for apartment D-8 was listed
in the Defendant’s name.
 In the second drug transaction, which occurred on August 8, 2006, Sawyers attempted
to arrange a purchase of two ounces of cocaine from Jaminez-Jaimes for $1200. When
Sawyers arrived, with $1200 of police drug buy money, he was met by the Defendant, who
informed him that he thought Sawyers wanted to purchase two kilos of cocaine. Sawyers
explained the mix-up, and Jeminez-Jaimes arrived and stayed with Sawyers while the
Defendant returned to apartment D-8 with the two kilos of cocaine. The Defendant returned
with a different amount of cocaine and inadvertently Sawyers ended up with eight ounces of
cocaine, for which he had paid only $1200. After Sawyers left, Jeminez-Jaimes called
Sawyers and asked him to return the drugs he had received in error. Sawyers told Jeminez-
Jaimes that he would purchase another half kilo the following day, and also pay Jeminez-
Jaimes for the extra drugs that he had received. Sawyers agreed to give the Defendant
$12,800 for the half-kilo of cocaine and the extra cocaine he had received in error.

In the third drug transaction, which occurred on August 9, 2006, Officer McWright
along with other officers set up surveillance of apartments C-3 and D-8. Officers were
following both the Defendant and Juan Jeminez-Jaimes and communicating with each other
via police radio. Shortly after noon, Officer McWright saw the Defendant, Betzy Martinez,
Martinez’s younger sister, and a child exit apartment C-3. The Defendant entered apartment
D-8, and the other three people left the complex in a SUV. Officer McWright then saw
Jeminez-Jaimes exit apartment C-3 and leave the complex in a different SUV. Officer
McWright followed Jeminez-Jaimes to Nashville Auto Sales, which is two to three miles
from the apartments.

Later that day Officer McWright conducted surveillance of apartment D-8 based upon
Sawyers’s arrangement to purchase a half-kilo of cocaine from Jeminez-Jaimes The officer
observed the Defendant arrive at the apartments and speak to his wife, Antonia Diaz-Reyes.
Diaz-Reyes went into apartment D-8, and the Defendant entered apartment C-3 using a key.
The Defendant then left the apartment complex. Police officer Herbert Kajihara followed
as the Defendant traveled on a road adjacent to Paragon Mill Elementary School on his way
to another apartment complex. Officer Kajihara saw the Defendant stop at a three-way
intersection, which dead-ended into the school. At that stop sign, where the Defendant
stopped, he was within twenty-five feet of the school. The Defendant then turned left and
drove past the school and traveled on to the apartment complex. When the Defendant arrived
at the complex, he parked his car, opened the hood and the trunk, and stood near his car. It
was the location of this drug sale that the State alleged was within a 1000 feet of a school
zone.

After Sawyers arrived at the apartment complex parking lot, the Defendant took a bag
of cocaine out of his trunk and gave Sawyers the cocaine. Sawyers gave the Defendant the
money, which the Defendant “tossed” into the back seat of the Defendant’s car. At that
point, pursuant to Officer McWright’s instructions, officers arrested the Defendant, who was
still in possession of the $12,800 that Sawyers paid him. Officers retrieved the bag of
cocaine from Sawyers and arrested Jeminez-Jaimes, as well.

Upon arrest, Jeminez-Jaimes gave police a false identity, and he was found in
possession of false identification. He carried $6139 in cash and one cell phone, and officers
found another cell phone in his Tahoe. Officers identified the telephone numbers of these
cell phones and determined that multiple calls had been placed between these phones and the
Defendant’s phone on the day of the drug sale. Phone records also indicated that calls were
placed between the phone Jeminez-Jamines carried and the phone belonging to Sawyers.
Officers examined the paper money found on Jeminez-Jaimes, and some of the money
matched the photocopies they had of the drug buy money used by Sawyers to purchase drugs
during the second drug buy.

Officer McWright testified that he had previously obtained search warrants for both
apartments C-3 and D-8, and that, after arresting the Defendant and Jeminez-Jaimes, he went
to the apartments in anticipation of executing those warrants. The officer, however, had to
wait for other officers to become available to assist him, so he set up surveillance. During
this surveillance, he saw Reyes exiting apartment D-8 carrying a trash bag, so he asked
another officer to take her into custody and to seize the trash bag. Betzy Martinez came back
to the apartment, and officers arrested her before she entered the apartment. Officers then
executed search warrants on both apartments.

In apartment C-3, officers, assisted by K-9 officers, found a half-kilo of cocaine in a
purple bag, which was inside a Christmas tree box. They also found baggies, Inositol
powder, which is used to cut cocaine, photographs and paper work. In apartment D-8,
officers found two small bags of cocaine inside a box of zip baggies, a digital scale, baggies,
and $700 in cash. In D-8, officers also found the Defendant’s ID cards, a pay stub from past
employment in another State, and family photographs. Upon searching Martinez’s SUV,
officers determined that the SUV had been purchased by Jeminez-Jaimes.

On cross-examination, Officers McWright, Thomas, and Rigsby each testified that he
never personally observed the Defendant within 1000 feet of a school zone during the August
9 drug sale. The officers said that the investigation revealed that Martinez listed her
employer as Nashville Auto Sales. During the cross-examination of the other officers who
testified, the officers testified that Inositol, which is used as a cutting agent for cocaine, is
sold legally as a baby laxative or vitamin supplement. The officers agreed children were
sometimes at the apartment, and the Inositol could have been for the children. On redirect,
however, one officer noted that he saw no items belonging to a baby when he searched the
apartment.

The State introduced audio recordings of the telephone calls between Sawyers and
Jeminez-Jaimes setting up the drug buys. The State also introduced booking forms
completed by the Defendant in which he listed his residence as apartment D-8 and did not
offer any employment information.

Walter Sawyers, the confidential informant, testified that the State offered him a plea
deal in part because of his cooperation with police during this investigation. Sawyers
recalled the events leading to his arrest, stating that he and his wife were arrested shortly after
delivering twenty pounds of marijuana and, after searching his home, police found more
marijuana and over $100,000. Sawyers agreed to plead guilty to conspiracy to deliver over
seventy pounds of marijuana, a Class B felony, in exchange for a split confinement sentence
of eight years with one year served in prison and the remainder on probation. His wife also
reached an agreement with the State in which she would plead to a Class C felony and serve
a suspended three-year sentence.

After his arrest, Sawyers cooperated with police by disclosing the name of his
supplier, Jeminez-Jaimes, and placing a call to Jeminez-Jaimes asking to purchase one
hundred pounds of marijuana, a transaction the two had earlier arranged. Because Jeminez-
Jaimes did not have any marijuana, Sawyers called him and asked to purchase two ounces
of cocaine. The two agreed to a price of $600 per ounce and a meeting place to exchange
the money for the drugs. All of Sawyers telephone conversations with Jeminez-Jaimes were
recorded and played for the jury. Sawyers said that, shortly after he arrived at the agreed
meeting place, the Defendant brought him the drugs, and Sawyers gave the money to the
Defendant. Immediately following the transaction, Sawyers went to the police precinct to
give the purchased drugs to the police.

Sawyers testified that he called Jeminez-Jaimes to arrange the second drug transaction
for two ounces of cocaine. Jeminez-Jaimes told him to go to the same meeting place.
Jeminez-Jaimes arrived at the agreed upon location shortly after the Defendant and told
Sawyers that the Defendant had brought two kilos, rather than the previously agreed upon
two ounces. Jeminez-Jaimes said the Defendant was going to “go back” and “fix it.”
Sawyers said he and Jeminez-Jaimes stayed and talked while they waited for the Defendant
to return. The Defendant arrived a short time later and handed Sawyers the cocaine wrapped
in a red towel. Sawyers paid the Defendant and returned to the police precinct where he
discovered he had received more cocaine than he paid for. Jeminez-Jaimes called him and
asked him to return the extra drugs. Sawyers relayed this information to police, who told him
to ask Jeminez-Jaimes if he could pay him for the extra drugs, and also purchase an
additional half of a kilo the following day. Jeminez-Jaimes agreed.

The following day, the third drug transaction occurred, and Sawyers went to the
agreed upon meeting place in the parking lot of an apartment complex. When Sawyers
arrived, the Defendant was already present. The two exchanged money for drugs after which
Sawyers went to the police precinct and gave police the drugs.

Sawyers admitted he had several previous convictions, which included: possession
of under .5 grams of cocaine, misdemeanor theft, misdemeanor criminal impersonation,
possession of drug paraphernalia, resisting arrest, and escape. On cross-examination,
Sawyers agreed he did not offer to cooperate with police until he was arrested on drug
charges.

The State offered several witnesses who testified about Paragon Mills Elementary
School. David Kline of the Metro Planning Department introduced a map he created that
depicted the school with a 1000-foot ring around the school. Steve Keel with Metro
Nashville Public Schools testified that Paragon Mills Elementary School had been in
existence since 1965 and was open for enrollment on August 9, 2006, and that students likely
were present at the school for registration at the time of the drug transaction. Keel agreed
during cross-examination that none of the acts for which the Defendants were on trial
endangered the children present at the school that day.

The State presented the testimony of two agents from the Tennessee Bureau of
Investigations (“TBI”) who testified about the substances received during the drug buys or
as a result of the police search of apartments C-3 and D-8. Agent Dunlap testified that the
substance received during the first drug buy was cocaine weighing a total of 55.5 grams.
Agent Glenn said that the substance received during the second drug buy was cocaine
weighing a total of 248.9 grams. Agent Glenn testified that he determined the substance
received during the third drug buy was also cocaine that weighed 502.9 grams. Agent Glenn
tested the substance found inside apartment C-3 and determined that it also was cocaine that
weighed 251.6 grams. Agent Glenn tested the substance found inside apartment D-8 and
determined it was cocaine packaged in two separate baggies, one weighing 8.9 grams and the
other weighing 7 grams.

The Defendant testified, through an interpreter, that he traveled from his apartment
complex to another apartment complex, on August 9, 2006, but he said he took a different
route than the one described by the officers who had testified. The route he described was
not within the school zone. The Defendant said that, when he arrived at the second
apartment complex, he conducted the “transaction” with the informant. The Defendant did
not deny meeting Sawyers. On cross-examination, the Defendant testified he had lived in
Nashville for three or four months before he was arrested in this case. During that time, he
looked for work but was unable to secure employment based upon his lack of a social
security number.

The Defendant said he conducted the three drug transactions with Sawyers and that
Jeminez-Jaimes told him to deliver the drugs to Sawyers. The Defendant said another person
gave the cocaine to him, which he then placed in apartment C-3, but he said he did not “really
know them.” He said he got the cocaine from apartment C-3 and took it to be delivered.
The Defendant said that, after each buy, he gave the money he received to Jeminez-Jaimes.
The Defendant agreed that he did not speak English and that Sawyers did not speak Spanish,
so they need Jeminez-Jaimes, who spoke both, to interpret for them.

Jeminez-Jaimes testified that he was married and his “main residence” was with his
wife in a location different from the apartments involved in this case. The Defendant, his
uncle, sometimes borrowed money from him and he sometimes borrowed money from the
Defendant. The two spoke on the phone frequently and spent the holidays together.
Jeminez-Jaimes conceded that Betzy Martinez was his girlfriend with whom he rented
apartment C-3. Jeminez-Jaimes said that, while the two shared an apartment, he visited
Martinez usually twice a day but never spent the night in the apartment, instead returning to
the home he shared with his wife. Jeminez-Jaimes denied any knowledge of the cocaine
found in the apartment.

Jeminez-Jaimes said that he was employed part-time with a landscaping company, and
he also bought, fixed up, and resold cars, which was, he said, quite profitable. Jeminez-
Jaimes recalled that, around the time of these drug transactions, the Defendant told him that
he needed his assistance communicating with another person. The Defendant gave him a
telephone and told him to answer it and tell him what the person said. The Defendant told
him that he did not have to deliver or touch “it,” so there was not going to be a problem.
Jeminez-Jaimes said he felt obligated to help his uncle because his uncle needed money and
did not understand English.

Jeminez-Jaimes maintained that he only translated for the Defendant, who told him
what to say to Sawyers and where to tell Sawyers to meet. The Defendant asked
Jeminez-Jaimes to tell him what Sawyers said in response. Jeminez-Jaimes explained that
Sawyers told Jeminez-Jaimes that he could not hear him on the cell phone he was using, and
Jeminez-Jaimes opined that this was perhaps because he was using a prepaid cell phone. He
then gave Sawyers his personal cell phone number, which he used to communicate with
Sawyers. Jeminez-Jaimes testified that the Defendant was in charge of the drug deals, and
Jeminez-Jaimes’s role was simply to facilitate communication. Jeminez-Jaimes explained
that he was carrying a large amount of money when he was arrested because he was on his
way to Nashville Auto Sales to purchase two cars. He had borrowed $1000 from the
Defendant and the remaining $5000 belonged to him. He said he did not share in the
proceeds from these drug sales.

On cross-examination, Jeminez-Jaimes testified that he knew when he was
interpreting that he was interpreting for purposes of a drug transaction.

Based upon this evidence, the Defendant was convicted of several offenses: Count
One: conspiracy to sell 300 grams or more of cocaine within 1000 feet of a school zone, a
Class A felony; Count Two: sale of 26 grams or more of cocaine, a Class B felony; Count
Three: sale of 26 grams or more of cocaine, a Class B felony; Count Four: possession with
intent to deliver 300 grams or more of cocaine within 1000 feet of a school zone, a Class A
felony; Count Five: sale of 300 grams or more of cocaine, a Class B felony; and Count
Seven: possession with intent to sell or deliver 26 grams or more of cocaine. The trial court
merged Count Five with Count Four and, after ordering all his sentences be served
concurrently, sentenced the Defendant to an effective sentence of eighteen years.

II. Analysis

On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his
convictions; (2) the Drug-Free School Zone statute is unconstitutionally vague and
unconstitutional as applied to the facts of this case; (3) the trial court improperly enhanced
his punishment because the State did not give him adequate notice of its intent to seek an
enhanced sentence; (4) the State committed prosecutorial misconduct during its closing
argument; and (5) three of the Judgment of Conviction forms contain errors and must be
corrected.

A. Motion for New Trial

After the verdict in this case, the Defendant’s counsel expressed concern that the jury
had convicted the Defendant of conspiracy to sell 300 grams or more of cocaine in a school
zone but had only convicted Jeminez-Jaimes of conspiracy to sell 300 grams or more of
cocaine, omitting the school zone enhancement. The parties posited to the court that it
should delete the drug-free school zone enhancement from the judgment. The trial court
agreed, and entered a judgment of conviction omitting the school zone enhancement. The
trial court entered the final judgments in this case on December 17, 2007.

The Defendant filed his first motion for new trial on January 8, 2008. Following a
hearing on February 8, 2008, the trial court denied the Defendant’s motion for new trial, as
evidenced by the trial court’s written minute entry.

On February 25, 2008, the trial court appointed the Defendant appellate counsel. The
Defendant’s appellate counsel filed a motion to allow amendments to the motion for new
trial. At a hearing on this motion, the Defendant contended that the trial court retained
jurisdiction over the case because, while the trial court made a minute entry of its denial of
the motion, it did not enter a written order denying the motion. The trial court agreed and
granted the motion to amend the motion for new trial on April 10, 2008.

On November 13, 2008, the Defendant filed an amended motion for new trial. At the
hearing on this motion, the Defendant’s counsel reminded the trial court that, after the
conclusion of proof in the case, the jury had convicted the Defendant in Count 1 for
conspiracy to sell 300 grams or more of cocaine in a school zone but found Jeminez-Jaimes
not guilty of conspiracy to sell 300 grams or more of cocaine in a school zone, finding him
guilty of only the offense of conspiracy to sell 300 grams or more of cocaine, without the
school zone enhancement. The parties therefore agreed the trial court should amend the
Defendant’s guilty verdict to the offense of conspiracy to sell 300 grams or more of cocaine,
but not in a school zone. The Defendant asserted that, because this was done after the jury
verdict was rendered, the trial court had no authority or jurisdiction to amend the verdict.
The Defendant’s counsel asked the trial court to declare a mistrial on this basis or, because
one cannot alone be found guilty on a conspiracy theory of criminal responsibility, to enter
a judgment of not guilty.

In a written order dated April 8, 2009, the trial court denied the Defendant’s amended
motion for new trial. The trial court acknowledged that it did not have the authority to
modify the jury’s verdict to reflect the lesser-included offense of conspiracy to sell cocaine
not in a school zone. The trial court ordered:

Since the jury found [the Defendant] and Mr. J[e]m[i]nez-Jaimes guilty of
conspiracy to violate T.C.A. 39-14-497(j)(5), then the conspiracy verdicts are
valid. The jury then found beyond a reasonable doubt that Mr. Jaimes-Garcia
had committed an overt act individually i.e. driving within a designated school
zone en route to a predetermined drug sell, in furtherance of the conspiracy.
Consequently, the Court did err in not sentencing Mr. Jaimes-Garcia under the
[Drug Free School Zone] enhancement statute T.C.A. 39-17-432.
Accordingly, an amended judgment will be entered to sentence the Defendant
according to the provisions of the enhancement statute.

The trial court also in its order merged Count 4, possession with intent to deliver more than
300 grams of cocaine with Count 5, sale of more than 300 grams of cocaine, explaining that
double jeopardy prohibits multiple drug convictions arising out of a single drug transaction.
Finally, the trial court found that double jeopardy required that Count 7 be dismissed with
prejudice. It explained that Count 7 involved a conviction for possession with intent to sell
.5 grams or more of cocaine on August 9, 2006 (the cocaine found in the Defendant’s
apartment pursuant to a search a few hours after his arrest). Therefore, the trial court
dismissed Count 7 with prejudice because dual convictions for possession with intent cannot
stand where law enforcement caused the defendant to divide the drugs for purposes of selling
or delivering only a portion of the whole amount. The Defendant filed his notice of appeal
on April 16, 2009.

In this appeal the State first contends that the Defendant’s appeal should be dismissed
because his notice of appeal was not timely filed and he has not sought a waiver of the
timeliness requirement. Further, the State argues that the Defendant did not file a timely
amended motion for new trial and that the trial court was without authority to extend the time
during which the Defendant could file an amended motion for new trial. We first address the
issue regarding the amendment to the Defendant’s motion for a new trial.
 A. Amended Motion for New Trial

At the time the Defendant moved to amend his motion for new trial, neither the parties
nor the trial judge had the benefit of the Tennessee Supreme Court’s recent holding that
amendments to timely filed motions for new trial may be had ‘until the day of the hearing on
the motion for new trial,’ Tenn. R. Crim. P. 33(b) (emphasis added), but not after the trial
court has entered an order denying a new trial. State v. Hatcher, 310 S.W.3d 788, 803 (Tenn.
2010). The court advised:

[T]rial courts should not hold any hearing on a motion for new trial until a
reasonable time after the sentencing has been held, sentence has been imposed,
and the judgment order entered. If the defense files a timely motion for new
trial, the trial court should provide the defense with ample opportunity to
amend the motion prior to holding the new trial hearing. If new counsel is
sought and obtained, additional time for amendments to the motion for new
trial may be granted as necessary. Once the hearing on the motion for new
trial is heard and an order denying a new trial has been entered, however,
motions to make additional amendments must be denied.

Id. at 788 (emphasis added).

In this case, the trial court, based upon its understanding that only the entry of a
written order denying a motion for new trial divests a trial court of jurisdiction over the
motion, allowed the Defendant to amend his motion for new trial despite its already having
made a minute entry of the motion’s denial. Again, at the time the trial court took this action,
April 10, 2008, it did not have the benefit of a recent Tennessee Supreme Court’s holding
on this issue. On May 5, 2009, our highest court released an opinion in which it addressed
the issue of whether a “minute entry is an ‘entry of the order denying a new trial’ under
Tennessee Rule of Appellate Procedure 4(c), which triggers the time for filing an appeal, and
therefore, whether this minute entry is sufficient to confer jurisdiction on the intermediate
court.” State v. Byington, 284 S.W.3d 220, 225 (Tenn. 2009). The Court construed the
language of Tennessee Rule of Criminal Procedure 33 to mean that:

[U]nless a party moves the trial court to set forth findings of fact and
conclusions of law, the court’s order need state only whether the motion for
new trial was granted or denied. The minute entry under scrutiny in [the
Byington] case states that the defendant’s motion for new trial was denied.
Therefore, we believe that it suffices as a written order required under
Tennessee Rule of Appellate Procedure 4(c) to confer appellate jurisdiction in
a criminal case.

Id. at 226. The Court then, as a final note on the issue, stated:
 [A]lthough we hold that a minute entry is sufficient to confer appellate
jurisdiction under Rule 4 in a criminal case, better practice dictates that the
trial court enter a written order. Thus, we strongly encourage a trial court to
enter a written order separate from the minute entry when denying a motion for
new trial.

Id.

In accordance with the Tennessee Supreme Court’s holding in Byington, we conclude
in this case that the trial court’s minute entry denying the Defendant’s motion for new trial,
entered on February 8, 2008, was sufficient to confer jurisdiction of the case with the
appellate court. Therefore, the trial court was without jurisdiction after February 8, 2008,
and had no authority to allow the Defendant to amend his motion for new trial. All
proceedings in the trial court following the trial court’s minute entry denying the Defendant’s
motion for new trial on February 8, 2008, would be of no legal effect.

B. Notice of Appeal

Given our conclusion that the trial court’s February 8, 2008, minute entry conferred
jurisdiction of the Defendant’s case to the appellate court, the Defendant had thirty days after
this date to file his notice of appeal. Tenn. R. App. P. 4(c). The Defendant, however, did not
file his notice of appeal until April 16, 2009.

“In all criminal cases, the notice of appeal document is not jurisdictional and the filing
of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). Given,
however, the fact that the parties and trial court did not have the benefit of our Supreme
Court’s holding, we conclude the interest of justice is served by waiver of the untimely filing
of the Defendant’s notice of appeal. Accordingly, we turn to address the Defendant’s
remaining issues.

C. Issue Preserved by Original Motion for New Trial.

The only issue properly preserved is the issue raised in the Defendant’s original
motion for new trial. In that motion, the Defendant contended, as relevant to this appeal, that
the evidence was insufficient to sustain his convictions. When an accused challenges the
sufficiency of the evidence, this Court’s standard of review is whether, after considering the
evidence in the light most favorable to the State, “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 (1979); see Tenn. R. App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775
(Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to
findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999). A conviction may be based entirely on circumstantial evidence where the
facts are “so clearly interwoven and connected that the finger of guilt is pointed unerringly
at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn.
1993). The jury decides the weight to be given to circumstantial evidence, and “[t]he
inferences to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence, are questions primarily for the jury.”
State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).

In determining the sufficiency of the evidence, this Court should not re-weigh or
re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d
856, 859 (Tenn. 1956). “Questions concerning the credibility of the 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.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at
859. “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. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn.
1973). The Tennessee Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the jury
see the witnesses face to face, hear their testimony and observe their demeanor
on the stand. Thus the trial judge and jury are the primary instrumentality of
justice to determine the weight and credibility to be given to the testimony of
witnesses. In the trial forum alone is there human atmosphere and the totality
of the evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523
(Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view
of the evidence contained in the record, as well as all reasonable inferences which may be
drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d
274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the
presumption of innocence and raises a presumption of guilt, the convicted criminal defendant
bears the burden of showing that the evidence was legally insufficient to sustain a guilty
verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

1. Count 1: Conspiracy to Sell 300 Grams or More of Cocaine
within 1000 Feet of School Property

The Defendant asserts that, in Count 1, the evidence does not sufficiently establish the
elements of conspiracy or a violation of the drug-free school zone statute, Tennessee Code
Annotated section 39-17-432(b). The Defendant contends that he was convicted of
conspiracy to “sell” cocaine in a school zone, but that there was not proof of any agreement
between himself and Jeminez-Jaimes to sell the cocaine within 1000 feet of a school zone.
Therefore, he asserts, the essential elements of “conspiracy” to “sell” cocaine “in a school
zone” have not been met. Further, the Defendant contends that, whereas the purpose of the
drug-free school zone statute is to protect children, his alleged driving through a school zone
was not “conduct . . . sufficient to establish a violation of the intent and language” of the
statute. The Defendant recognizes that the Tennessee Supreme Court has held otherwise, but
he states that retroactive application of the Supreme Court’s decision would violate his due
process rights. State v. Vasques, 221 S.W.2d 514, 523 (Tenn. 2007); see also Bouie v. City
of Columbia, 378 U.S. 347 (1964).

In Count 1, the Defendant was charged and convicted of conspiracy to sell 300 grams
or more of cocaine. T.C.A. § 39-17-417(a)(3) (stating it is an offense for a person to
knowingly sell a controlled substance); T.C.A. § 39-17-408(b)(4) (defining cocaine as a
controlled substance); T.C.A. 39-12-103(a) (defining conspiracy). When the amount
involved is more than 30 grams, the offense is a Class A felony. T.C.A. § 39-17-417(j)(5).
As previously stated, the Defendant was charged with conspiracy, an offense that requires
that:

(a) The offense of conspiracy is committed if two (2) or more people, each
having the culpable mental state required for the offense that is the object of
the conspiracy, and each acting for the purpose of promoting or facilitating
commission of an offense, agree that one (1) or more of them will engage in
conduct that constitutes the offense.

(b) If a person guilty of conspiracy, as defined in subsection (a), knows that
another with whom the person conspires to commit an offense has conspired
with one (1) or more other people to commit the same offense, the person is
guilty of conspiring with the other person or persons, whether or not their
identity is known, to commit the offense.

(c) If a person conspires to commit a number of offenses, the person is guilty
of only one (1) conspiracy, so long as the multiple offenses are the object of
the same agreement or continuous conspiratorial relationship.

(d) No person may be convicted of conspiracy to commit an offense unless an
overt act in pursuance of the conspiracy is alleged and proved to have been
done by the person or by another with whom the person conspired.

T.C.A. § 39-12-103(a)-(d). To prove the existence of a conspiratorial relationship, the State
may rely upon a “mutual implied understanding” existing between or among the parties.
State v. Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993). The conspiracy need not
be proven by production of an official or formal agreement, in writing or otherwise. Id. The
conspiracy may be demonstrated by circumstantial evidence and the deportment of the
participants while undertaking illegal activity. Id. Conspiracy connotes harmonization of
design, not coequal participation in the minutia of every criminal offense. Id.

The State also alleged, and the jury found, that such crime took place within 1000 feet
of a school. T.C.A. § 39-17-432. Tennessee Code Annotated section 39-17-432, the Drug
Free School Zone Act, states:

A violation of § 39-17-417, or a conspiracy to violate such section, that occurs
on the grounds or facilities of any school or within one thousand feet (1,000')
of the real property that comprises a public or private elementary school,
middle school, secondary school, preschool, child care agency, or public
library, recreational center or park shall be punished one (1) classification
higher than is provided in § 39-17-417(b)-(I) for such violation.

T.C.A. § 39-17-432(b) (2005). This section is part of the Drug-Free School Zone Act, which
is intended to “provid[e] all students in this state an environment in which they can learn
without the distractions and dangers that are incident to the occurrence of [illegal] drug
activity in or around school facilities.” T.C.A. § 39-17-432(a); see also State v. Fields, 40
S.W.3d 435, 439 (Tenn. 2001).

This Court has previously held that Tennessee Code Annotated section 39-17-432
does not itself criminalize manufacturing, delivering, selling, or possessing a controlled
substance; rather, it merely imposes a harsher penalty for violations of Tennessee Code
Annotated section 39-17-417 occurring within a school zone. State v. Smith, 48 S.W.3d 159,
167-68 (Tenn. Crim. App. 2000). When so noting, we stated:

Indeed, the only way to punish an offender under the Drug-Free School Zone
Act is to first determine his sentence under Tenn. Code Ann. § 39-17-417. Id.
Moreover, both the caption of the Act and the policy statement set forth in
subsection (a) of the Act reflect the purpose of the legislature, not to create a
new offense, but rather to create drug-free school zones by enhancing penalties
for violations of Tenn. Code Ann. § 39-17-417 occurring inside the zones. See
Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn. 1976) (in determining legislative
intent, we look to the entire statute, including the caption and policy statement
which provide the purpose, objective, and spirit behind the legislation). The
caption to Tenn. Code Ann. § 39-17-432 states, “Drug-Free School Zone-
Enhanced criminal penalties for violations within zone.” (Emphasis Added).
The policy statement similarly expresses an intent to create drug-free school
zones by imposing “enhanced and mandatory minimum sentences” for drug
offenses occurring inside a school zone. Tenn. Code Ann. § 39-17-432(a).
Smith, 48 S.W.3d at 168.

We disagree with the Defendant’s assertion that, in order to sustain his conviction, the
State must have proved that the “conspiracy” occurred within the school zone. This would,
in fact, in many instances defeat the purpose of the act. Quite logically, the conspiracy to sell
the drugs could have occurred anywhere and there may be an overt act by one of the
conspirators that occurred inside a school zone. To hold otherwise would undermine the
Legislature’s intent when it enacted this statute.

We conclude that the evidence, viewed in the light most favorable to the State, proved
that the Defendant and Jeminez-Jaimes conspired to sell more than 300 grams of cocaine.
The confidential informant contacted Jeminez-Jaimes on several occasions to ask to purchase
drugs. Both Jeminez-Jaimes and the Defendant testified that Jeminez-Jaimes then relayed
to the Defendant the details of his conversations with the confidential informant, including
the quantity of drugs the informant wished to purchase and the location of the agreed meeting
place. The evidence supports that both actors knowingly engaged in the sale of drugs. See
State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). The evidence supports that
both actors acted for the purpose of promoting or facilitating the offense: Jeminez-Jaimes
took and relayed information about the drug sale, and the Defendant delivered the drugs. See
Id. Further, the evidence supports that both actors acted overtly in furtherance of the
agreement to sell drugs. Id. Jeminez-Jaimes played a key role in arranging the location of
the sale, which was within a school zone, and without Jeminez-Jaimes’s assistance in
translating the time and location of the sale to Sawyers, the sale would not have taken place.

The jury, by its verdict, concluded that the Defendant’s overt act took him into a
school zone, triggering the provisions of Tennessee Code Annotated 39-17-432, the drug-free
school zone statute. The Defendant admitted that he delivered the drugs in this case. He
testified he took a route different from that which police officers testified he took. His route,
he said, did not take him within 1000 feet of school property. Several police officers were
involved in following the Defendant to his meeting with the confidential informant on the
date in question. Officer Kajihara testified that the Defendant pulled up to a stop sign at a
T intersection that dead-ended into Paragon Mills Elementary School. The Defendant was,
at that point, only twenty-five feet from school property. The State introduced evidence that
Paragon Mills Elementary School had been in existence since 1995 and was open for
enrollment on August 9, 2006, meaning that there were likely students there. The State also
introduced a map that depicted the school and a ring around the school at 1000 feet.

On appeal, the Defendant contends that, even if this evidence proves he drove through
a school zone, driving through a school zone is not sufficient to establish a violation of
Tennessee Code Annotated section 39-17-432. He acknowledges that the Tennessee
Supreme Court has stated otherwise in State v. Vasques, 221 S.W.3d 514, 523 (Tenn. 2007),
but asserts that retroactive application of the Vasques dictum would violate his due process.
 In Vasques, our highest court was presented with a factual scenario that involved a
conspirator to a drug sale traveling through a school zone. The Court concluded the evidence
was sufficient to sustain the jury’s verdict of guilty as to the conspiracy to possession with
intent to sell a substantial quantity of marijuana within 1000 feet of school property. In so
doing, the Court stated, “[W]e reject [the defendant’s] argument that simply traveling
through a school zone is not enough to apply the provisions of the Drug-Free School Zone
Act.” Id. at 523. Further, the United States Court of Appeals for the Third Circuit has noted
that, regardless of a defendant’s intent to distribute drugs within a school zone:

the mere presence of substantial quantities of drugs increases the risk of
gunfire and other violence . . . . In addition, a person possessing drugs may
abandon them while fleeing from the police . . . . The drugs may also be lost
or stolen near a school and may then find their way into students’ hands.

United States v. Rodriguez, 961 F.2d 1089, 1094 (3d Cir. 1992); see also United States v.
Wake, 948 F.2d 1422, 1430-34 (5th Cir. 1991); United States v. Ortiz, 146 F.3d 25, 29 (1st
Cir. 1998).

In accordance with these authorities, we conclude that the evidence sufficiently
establishes that the Defendant traveled through a school zone on his way to meet the
confidential informant on August 9, 2006. The conduct by the Defendant sufficiently
supports the trial court’s finding that he violated the Drug-Free School Zone Act; thereby
making the sentencing enhancements of that statute applicable to the Defendant’s statute.

We do not find persuasive the Defendant’s argument that retroactive application of
the decision in Vasques would violate his right to due process. A “case announces a new rule
when it breaks new ground or imposes a new obligation on the States or the Federal
Government [or] . . . if the result was not dictated by precedent existing at the time the
defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288, 301 (1989) (citations
omitted); see also Van Tran v. State, 66 S.W.3d 790, 810-11 (Tenn. 2001). In other words,
“a case announces a new rule if the result was not dictated by precedent existing at the time
the defendant’s conviction became final.” Van Tran, 66 S.W.3d at 809 (citing Teague, 489
U.S. at 301 and Meadows v. State, 849 S.W.2d 748, 751 (Tenn. 1993)). The Tennessee
Supreme Court’s decision in Vasques was a clarification of the scope of a statute that was
in effect at the time that the Defendant committed the drug sales in this case. The case did
not announce a new rule and does not constitute an impermissible application of the law to
the Defendant. The Defendant is not entitled to relief on this issue.

Finding that the evidence is sufficient as to the Defendant’s conviction in Count 1, we
now address the Defendant’s concerns about the judgment form for this conviction. He
asserts that the trial court erred when it imposed his eighteen-year sentence at 100%. He
states that the Drug-Free School Zone Act requires that a defendant serve 100% of his
sentence only if he is sentenced to the statutory minimum within his range. Here, the
Defendant’s sentence was enhanced by three years, from fifteen to eighteen years. Therefore,
he states, the trial court erred when it sentenced him to serve his sentence at 100%.

The governing statute regarding release eligibility for a violation of the Drug-Free
School Zone Act can be found in Tennessee Code Annotated section 39-17-432(c), (d), and
(e), which provides for release eligibility upon the “service of the entire minimum sentence
for [the] defendant’s appropriate range.” (2006). Therefore, a defendant sentenced as a Range
I offender is eligible for release after the completion of fifteen years’ imprisonment. This
Court noted in Terrance Lavar Davis v. State that “a violation of the Drug-Free School Zone
Act is not one of the enumerated offenses for which the legislature has mandated a defendant
serve one hundred percent prior to consideration for release.” No. M2009-00011-CCA-RM-
HC, 2009 WL 961777, at *3 (Tenn. Crim. App., at Nashville, Apr. 8, 2009) (citing T.C.A.
§ 40-35-501(i)(2); T.C.A. § 39-17-432(d) (“the provisions of title 40, chapter 35, part 5,
relative to release eligibility status and parole, shall not apply to or authorize the release of
a defendant sentenced for a violation of [the Drug-Free School Zone Act] prior to the service
of the entire minimum sentence for such defendant’s appropriate range of sentence”)), perm.
app. granted (Tenn. Aug. 24, 2010). Thus, a Range I sentence of eighteen years with a 100%
release eligibility exists nowhere within the sentencing authority of the Drug-Free School
Zone Act.

Therefore, we remand this case to the trial court for entry of an amended judgment
reflecting that the Defendant is sentenced to eighteen years for his conviction in Count 1 and
that he is required to serve fifteen years of this sentence at 100%. On this judgment of
conviction, the trial court should check the box indicating that the Defendant is sentenced
pursuant to the “Drug Free Zone” and omit from the “special conditions” section of the
judgment that the Defendant serve eighteen years at 100%.

2. Count 2 and Count 3: Sale of 26 Grams or More of Cocaine

The Defendant’s original motion for new trial asserted that the evidence was
insufficient to sustain any of his convictions. Two of these convictions were for the sale of
26 grams or more of cocaine. Tennessee Code Annotated section 39-17-417(a)(3) makes it
an “offense” for a defendant to “[s]ell a controlled substance.” (2006). “‘Controlled
substance’ means a drug, substance, or immediate precursor in Schedules I through VI of §§
39-17-403–39-17-415.” T.C.A. 39-17-402 (2006). Cocaine is a Schedule II drug. T.C.A.
§ 39-17-408(b)(4) (2006). A violation of subsection (a) with respect to 26 grams or more of
cocaine is a Class B felony and may result in a fine of not more than two hundred thousand
dollars ($200,000). T.C.A. § 39-17-417(i)(5) (2006).

Viewed in the light most favorable to the State, the evidence shows that the police
worked in cooperation with Sawyers, a confidential informant, who contacted the informant’s
supplier, Jeminez-Jaimes, by telephone and arranged with him the purchase of two ounces
of cocaine for $1200. On August 3, 2006, officers gave Sawyers money to purchase the
drugs. At the arranged time, the Defendant arrived at the agreed upon location and gave the
informant two ounces of cocaine in exchange for the $1200. Police officers retrieved this
cocaine from the informant and TBI Agent Dunlap testified that the substance received
during the first drug buy was cocaine weighing a total of 55.5 grams. This evidence supports
the Defendant’s conviction in Count 2 for the sale of 26 grams or more of cocaine.

Officers arranged a second drug buy to be conducted on August 8, 2006. The
confidential informant again attempted to arrange a purchase of two ounces of cocaine from
Jeminez-Jaimes for $1200. When Sawyers arrived at the agreed location, with $1200 of
police drug-buy money, he was met by the Defendant, who, with Jeminez-Jaimes translating,
informed him that he thought Sawyers wanted to purchase two kilos of cocaine. The
informant explained that he wanted to purchase only two ounces of cocaine, and Jeminez-
Jaimes stayed with the informant while the Defendant returned to apartment D-8 with the two
kilos of cocaine. The Defendant returned to Sawyers with a different amount of cocaine.
Due to the confusion, Sawyers ended up with eight ounces of cocaine when he had only paid
$1200 for two ounces.. This lead to the third drug buy, during which Sawyers paid the
Defendant additional money for the eight ounces of cocaine he had received. Police retrieved
the eight ounces of cocaine from the informant after the August 8 drug buy, and TBI Agent
Glenn said that the cocaine received during the second drug buy weighed 248.9 grams. This
evidence is sufficient to support the Defendant’s conviction in Count 3 for the sale of 26
grams or more of cocaine.

3. Count 4: Possession With Intent to Deliver 300 Grams or More of Cocaine
within 1000 Feet of a School Zone

This Count involved the Defendant’s actions during the August 9, 2006, drug sale.
To convict the Defendant of the cocaine possession offense in Count 4, the jury must have
found that the Defendant knowingly possessed cocaine within 1000 feet of real property that
comprised a public or private school with the intent to resell and that the amount of the
cocaine possessed exceeded 300 grams. T.C.A. §§ 39-17-417(j)(5), -432(b). This offense
is a Class A felony. T.C.A. § 39-17-417(j)(5). This offense is also subject to the Drug Free
School Zone Act provision, which mandates that those convicted pursuant to this statute
serve the minimum of the sentence within their applicable range at 100%. T.C.A. §
39-17-432(c),(d), & (e). The evidence presented at trial, viewed in the light most favorable
to the State, proved that on August 9, 2006, the Defendant traveled from his apartment to the
parking lot of another apartment complex to complete a drug transaction. On his way, police
officers, who were following him, observed the Defendant’s route, which took him to a “T”
intersection that dead-ended into Paragon Mills Elementary School. At this intersection,
where the Defendant stopped at a stop sign, the Defendant was twenty-five feet from the
school, which was open for enrollment on August 9, 2006. The Defendant then traveled on
to the parking lot of the apartment complex, where he gave Sawyers cocaine in exchange for
money. TBI Agent Glenn weighed the cocaine at 502.9 grams. This evidence is sufficient
to sustain the jury’s conviction in Count 4.

4. Count 5: Sale of 300 Grams or More of a Substance Containing Cocaine

We now turn to address whether the evidence was sufficient to sustain the
Defendant’s conviction in Count 5 for Sale of 300 grams or more of cocaine. In Count 5, the
State alleged that the Defendant sold cocaine to the confidential informant on August 9,
2006. The cocaine in this transaction was the same as the cocaine involved in the
Defendant’s conviction in Count 4 for possession of cocaine in a school zone.

Tennessee Code Annotated section 39-17-417(a)(3) makes it an “offense” for a
defendant to “[s]ell a controlled substance.” “‘Controlled substance’ means a drug,
substance, or immediate precursor in Schedules I through VI of §§ 39-17-403–39-17-415.”
T.C.A. § 39-17-402. Cocaine is a Schedule II drug. T.C.A. § 39-17-408(b)(4). Because this
count involved 300 grams or more of cocaine, it is a Class A felony. T.C.A. § 39-17-
417(j)(5).

While the evidence is sufficient to prove both convictions, both convictions may not
stand in the face of double jeopardy concerns. Merger of convictions is sometimes necessary
in order to remedy the double jeopardy problem of multiple punishment. State v. Beard, 818
S.W.2d 376, 379 (Tenn. Crim. App. 1991). The double jeopardy clause in the United States
Constitution provides that no person “shall . . . be subject for the same offense to be twice
put in jeopardy of life or limb . . . .” U.S. Const. amend V. Similarly, the Tennessee
Constitution states that “no person shall, for the same offense, be twice put in jeopardy of life
or limb.” Tenn. Const. art. I, § 10. Three fundamental principles underlie double jeopardy:
(1) protection against a second prosecution after an acquittal; (2) protection against a second
prosecution after conviction; and (3) protection against multiple punishments for the same
offense. State v. Burris, 40 S.W.3d 520, 524 (Tenn. Crim. App. 2000).

The seminal case for double-jeopardy analysis of multiple count, same statute crimes
is State v. Phillips, 924 S.W.2d 662 (Tenn. 1996), a sex-offense case. Although the inquiry
in Phillips is specific to sex-related crimes, “[i]ts principles . . . have been adapted for other
types of crimes, as well.” State v. Easterly, 77 S.W.3d 226, 231 (Tenn. Crim. App. 2001)
(citing generally State v. Epps, 989 S.W.2d 742, 745 (Tenn. Crim. App. 1998)). The Easterly
Court listed those principles as:

1. A single offense may not be divided into separate parts; generally, a single
wrongful act may not furnish the basis for more than one criminal prosecution;
 2. If each offense charged requires proof of a fact not required in proving the
other, the offenses are not multiplicitous; and

3. Where time and location separate and distinguish the commission of the
offenses, the offenses cannot be said to have arisen out of a single wrongful
act.

Id. at 231 (citing Epps, 989 S.W.2d at 745, and Phillips, 924 S.W.2d at 665). Other matters
to be considered are “the nature of the act; the time elapsed between the alleged conduct; the
intent of the accused, i.e., was a new intent formed; and cumulative punishment . . . .” Id.
at 231-32. None of these factors other than the nature of the act is determinative. Id. at 232.

In State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981), this Court
specifically addressed whether convictions for possession of cocaine and sale of the same
cocaine violated double jeopardy provisions. We stated:

“Possession” may be actual or constructive. “(C)onstructive possession
requires that a person knowingly have ‘the power and the intention at a given
time to exercise dominion and control over an object, either directly or through
others.’” United States v. Craig, 522 F.2d 29 (6th Cir. 1975). “In essence,
constructive possession is the ability to reduce an object to actual possession.”
United States v. Martinez, 588 F.2d 495 (5th Cir. 1979). In view of this
interpretation of “possession,” we find it impossible to conceive of a situation
where a defendant could sell narcotics without being in possession, at least
constructively, of those narcotics.

Id. Based upon this, the Williams Court reversed and dismissed the defendant’s conviction
therein for possession with intent to sell hydromorphone, but affirmed his conviction for the
sale of that same hydromorphone. Id.; cf State v. Luis Perez, No. W2004-00980-CCA-R3-
CD, 2005 WL 1114463, at *5 (Tenn. Crim. App., at Jackson, May 11, 2005) (holding that
double jeopardy protections precluded defendant’s convictions for both the possession and
sale of marijuana), no Tenn. R. App. 11 application filed. But see State v. Jose D. Holmes,
No. 02C01-9411-CR-00251, 1995 WL 695127 (Tenn. Crim. App., at Jackson, Nov. 22,
1995) (holding in dicta that possession of cocaine and sale of cocaine require proof of
different statutory elements.) “As previously mentioned, the elements of the offense of
possession of cocaine with intent to sell are (1) the defendant knowingly possessed cocaine
and (2) the defendant intended to sell cocaine. T.C.A. § 39-17-417(a)(4) (1994 Supp.). In
contrast, the elements of the offense of sale of cocaine are: (1) that the defendant actually
sold cocaine; and (2) that the defendant acted knowingly. T.C.A. § 39-17-417(a)(3) (1994
Supp.)”), perm. app. denied (Tenn. Apr. 8, 1996).

The fact that the Defendant’s conviction involves the Drug Free School Zone Act
makes analysis of the present issue slightly more complex. However, as we previously held,
proof that the drug crime was committed in a school zone is not an essential element of the
39-17-417 offense. Rather, it is an element that, if proven, merely imposes a harsher penalty
for violations of Tennessee Code Annotated section 39-17-417 occurring within a school
zone. Accordingly, the sale of the cocaine in Count 5 necessarily involved his possession of
cocaine for which he was convicted in Count 4. Both convictions can not properly stand as
these dual convictions would violate the Defendant’s double jeopardy protections. Because
the Drug-Free School Zone Act applies to Count 4, thereby making it mandatory that the
Defendant serve fifteen years of his sentence at 100%, Count 5 should be merged into Count
4. We remand this case to the trial court for entry of one judgment of conviction in Count
4, which reflects the merger of Count 5.

5. Count 7: Possession With Intent to Sell .5 Grams or More of Cocaine

We now determine whether the evidence is sufficient to sustain the Defendant’s
conviction in Count 7 for possession with intent to sell or deliver 0.5 grams or more of
cocaine. In Count 7, the State contended that the Defendant intended to sell or deliver the
cocaine, which was packaged in two separate baggies, one weighing 8.9 grams and the other
weighing 7 grams, found in apartment D-8.

As previously stated, it is an offense for a defendant to possess cocaine with the intent
to manufacture, deliver, or sell the cocaine. T.C.A. § 39-17-417(a)(4), T.C.A. § 39-17-402,
T.C.A. § 39-17-408(b)(4). Because this count involved more than .5 grams but less than 26
grams of cocaine, it is a Class B felony. T.C.A. § 39-17-417(c)(1).

The testimony at trial proved that the Defendant went to the location of the second
drug sale, on August 8, 2006, with more cocaine than the agreed purchase amount. Law
enforcement officers followed him back to his apartment where he divided the cocaine,
leaving some portion thereof in his home, and returned to the site of the drug sale where he
conducted the drug transaction with Sawyers. After the third drug sale, on August 9, 2010,
officers searched the Defendant’s apartment where they found the cocaine that he had
divided for sale.

As previously stated, the double jeopardy clause in the Unites States Constitution
provides that no person “shall . . . be subject for the same offense to be twice put in jeopardy
of life or limb . . . .” U.S. Const. amend V. Similarly, the Tennessee Constitution states that
“no person shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn. Const.
art. I, § 10. Three fundamental principles underlie double jeopardy: (1) protection against
a second prosecution after an acquittal; (2) protection against a second prosecution after
conviction; and (3) protection against multiple punishments for the same offense. State v.
Burris, 40 S.W.3d 520, 524 (Tenn. Crim. App. 2000). Further, again as listed by the Easterly
Court:
 1. A single offense may not be divided into separate parts; generally, a single
wrongful act may not furnish the basis for more than one criminal prosecution;

2. If each offense charged requires proof of a fact not required in proving the
other, the offenses are not multiplicitous; and

3. Where time and location separate and distinguish the commission of the
offenses, the offenses cannot be said to have arisen out of a single wrongful
act.

77 S.W.3d at 231. In Easterly, the Court went on to hold that multiple convictions for
cocaine possession could not stand where law enforcement officers had induced him to
separate the cocaine for sale. Id. at 232. The Court reasoned, “The defendant was
simultaneously in possession of the cocaine he kept in his home . . . and the subdivided
portion he took [to sell], and the locations were different only because of the state’s
involvement.” Id. The Court dismissed the presentment with prejudice.

Applying the Easterly reasoning to the case under submission, we conclude that the
Defendant’s conviction in Count 7 for possession of cocaine cannot stand. Like the
defendant in Easterly, the Defendant herein was simultaneously in possession of the cocaine
in his home, that was left there when he divided the cocaine to sell the correct amount to the
State’s confidential informant, and the cocaine that he possessed at the time of that sale. He
was convicted for the sale of cocaine, and, as we previously stated, one must necessarily
“possess” cocaine in order to sell that same cocaine. Accordingly, we reverse the
Defendant’s conviction in Count 7 and dismiss the indictment with prejudice.

C. Issues Reviewed for Plain Error

In the Defendant’s amended motion for new trial he contended, as relevant to this
appeal, that: (1) the Drug-Free School Zone statute is unconstitutionally vague and
unconstitutional as applied to the facts of this case; (2) the Defendant is subject to enhanced
punishment provisions of T.C.A. § 39-17-432 where the prosecution failed to give adequate
notice of its intent to seek other than standard sentencing; and (3) the prosecution committed
prosecutorial misconduct during closing arguments.

Because “[r]eview generally will extend only to those issues presented for review,”
Tenn. R. App. P. 13(b), we must review the three aforementioned issues pursuant to Rule
36(b), which states 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 not raised in the motion for a new trial or assigned as error on appeal.” A court
will grant relief for plain error pursuant to Rule 36(b) only when: “(1) the record clearly
establishes what occurred in the trial court; (2) the error breached a clear and unequivocal
rule of law; (3) the error adversely affected a substantial right of the complaining party; (4)
the error was not waived for tactical purposes; and (5) substantial justice is at stake.” State
v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (citing State v. Smith, 24 S.W.3d 274, 282-83
(Tenn. 2000)). If any of these five criteria are not met, we will not grant relief, and complete
consideration of all five factors is not necessary when it is clear from the record that at least
one of the factors cannot be established. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.
2000). The party claiming plain error has the burden of persuading the appellate court. State
v. Banks, 271 S.W.3d 90, 119 (Tenn. 2008).

1. Constitutionality of Drug-Free School Zone Act

The Defendant contends that the Drug-Free School Zone Act is unconstitutionally
vague and unconstitutional as applied to his case. He asserts the statute is vague because it
contains no clear indication whether a defendant violates the statute only when the actual
drug sale occurs within 1000 feet of the school zone or whether a defendant violates the
statute by simply entering and passing through a school zone on the way to a drug sale
outside the 1,000 foot zone. Further, the Defendant asserts this statute is unconstitutionally
vague when applied to him because he simply drove past the school zone on his way to a
drug sale.

As previously stated, this issue was not preserved by the Defendant’s original motion
for new trial, and we must review it for plain error. A court will grant relief for plain error
pursuant to Rule 36(b) only when, in addition to the other requirements, there is a breach of
a clear and unequivocal rule of law. This Court has previously held that the Drug-Free
School Zone Act is not overbroad or vague and, therefore, does not violate principles of due
process guaranteed by the Fourteenth Amendment to the United States Constitution and
article 1, section 8 of the Tennessee Constitution. State v. Smith, 48 S.W.3d at 159, 164-68
(Tenn. Crim. App. 2000); State v. Jenkins, 15 S.W.3d 914, 917-18 (Tenn. Crim. App. 1999).
Further, more recently, this Court has held that the 2005 amendment to the Act was also
constitutional. State v. Devon Wiggins, No. W2007-01734-CCA-R3-CD, 2009 WL 1362323,
at *7-8 (Tenn. Crim. App., Jackson, May 15, 2009), perm. app. denied (Tenn. Dec. 21,
2009). Further, as previously discussed, in Vasques our Supreme Court held that driving
through a school zone on the way to a drug sale was action sufficient to trigger the Drug-Free
School Zone Act. 221 S.W.3d at 523. As previously stated, if any of the five criteria for
plain error review are not met, we will not grant relief, and complete consideration of all five
factors is not necessary when it is clear from the record that at least one of the factors cannot
be established. Smith, 24 S.W.3d at 282-83. Accordingly, we conclude that the Drug-Free
School Zone Act does not breach a clear and unequivocal rule of law and that this issue does
not meet the requirements for plain error review.

2. Adequate Notice of Punishment Provisions of Drug-Free School Zone Act
 The Defendant next contends that he did not have adequate notice of the enhanced
punishment provisions of the Drug-Free School Zone Act. He asserts that the prosecution
did not file a notice to seek enhanced punishment and that the indictment did not reference
the Drug-Free School Zone statute. The State counters that it was not required to give the
Defendant additional notice and that the indictment clearly indicated that the Defendant was
charged with offenses that occurred “within one thousand (1,000) feet of real property that
comprises a public elementary school . . . .”

Again, we may only review this issue for plain error. A court will grant relief for
plain error pursuant to Rule 36(b) only when, in addition to the other requirements, there was
a breach of a clear and unequivocal rule of law. See Hatcher, 310 S.W.3d at 808. In this
case, we conclude there has been no such breach. The State is not required to give notice of
intent to seek enhanced punishment when prosecuting a defendant pursuant to this statute.
See T.C.A.40-35-202(a). Further, our review of the indictment indicates that it clearly
indicated that the State was prosecuting the Defendant for crimes that occurred inside a
Drug-Free School Zone. Because we conclude that there was no breach of a clear and
unequivocal rule of law, we will not review this issue for plain error.

3. Prosecutorial Misconduct

Finally, the Defendant contends that the prosecutor committed prosecutorial
misconduct when, during closing arguments, he twice stated:

In this country, whether you are a citizen or not, you have a right to plead not
guilty and ask for a jury trial, and that’s our constitution in every criminal case,
that is your right, whether you are a citizen of this country or not, and that’s
what we build the foundations of this country on.

As previously stated, a court will grant relief for plain error pursuant to Rule 36(b)
only when: “(1) the record clearly establishes what occurred in the trial court; (2) the error
breached a clear and unequivocal rule of law; (3) the error adversely affected a substantial
right of the complaining party; (4) the error was not waived for tactical purposes; and (5)
substantial justice is at stake.” State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (citing
State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)).

In determining whether a prosecutor’s statements violated a clear and unequivocal rule
of law, we first note that our supreme court has recognized that closing argument is a
valuable privilege for both the State and the defense and that counsel is afforded wide
latitude in presenting final argument to the jury. See State v. Cribbs, 967 S.W.2d 773, 783
(Tenn. 1998); State v. Cone, 665 S .W.2d 87, 94 (Tenn. 1984). However, a party’s argument
“must be temperate, predicated on evidence introduced during trial, relevant to the issues
being tried, and not otherwise improper under the facts or law.” State v. Middlebrooks, 995
S.W.2d 550, 568 (Tenn .1999). This court, citing to standards promulgated by the American
Bar Association,1 has identified “five general areas of prosecutorial misconduct”: (1)
intentionally misstating the evidence or misleading the jury as to inferences it may draw; (2)
expressing the prosecutor’s personal belief or opinion as to the truth or falsity of any
testimony or evidence or the guilt of the defendant; (3) using arguments calculated to inflame
the passions or prejudices of the jury; (4) using arguments that would divert the jury from its
duty to decide the case on the evidence, by injecting issues broader than the guilt or
innocence of the accused or by predicting the consequences of the jury’s verdict; and (5)
intentionally referring to or arguing facts outside the record unless the facts are matters of
public knowledge. State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003). In addition,
prosecutorial misconduct does not constitute reversible error absent a showing that it has
affected the outcome of the trial to the prejudice of the defendant. State v. Bane, 57 S.W.3d
411, 425 (Tenn. 2001) (citing State v. Chalmers, 28 S.W.3d 913, 917 (Tenn .2000)).

When an appellate court finds an argument to be improper, “the established test for
determining whether there is reversible error is whether the conduct was so improper or the
argument so inflammatory that it affected the verdict to the Appellant’s detriment.” Goltz,
111 S.W.3d at 5 (citing Harrington v. State, 215 Tenn. 338, 385 S.W.2d 758, 759 (1965)).
In measuring the prejudicial impact of an improper argument, this Court should consider the
following factors: “(1) the facts and circumstances of the case; (2) any curative measures
undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the
cumulative effect of the improper conduct and any other errors in the record; and (5) the
relative strength or weakness of the case.” Goltz, 111 S.W.3d at 5-6 (citing Judge v. State,
539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see State v. Buck, 670 S.W.2d 600, 609
(Tenn. 1984).

We have reviewed the Defendant’s allegations of prosecutorial misconduct in the
context of the entire argument and are not convinced of plain error. We conclude that none
of the statements “probably changed the outcome of the trial” and that the Defendant is not
entitled to relief on this issue.

III. Conclusion

After a thorough review of the record and the applicable authorities, we affirm the
judgments of the trial court, save two. We reverse the judgment of conviction in Count 5,
convicting the Defendant of selling more than 300 grams of cocaine, and order that Count
5 be merged into Count 4. The judgment of conviction in Count 4 should be entered with
a notation that Count 5 was merged into Count 4. We reverse and dismiss with prejudice the

1
See American Bar Association, ABA Standards for Criminal Justice: Prosecution Function and
Defense Function §§ 3-5.8, 3-5.9 (3d ed.1993).
Defendant’s conviction in Count 7 for possession with intent to sell .5 grams or more of
cocaine. We again note that, per new case law, although the trial court corrected both of
these errors when ruling on the Defendant’s amended motion for new trial, that ruling by the
trial court is a nullity. We also remand this case for entry of an amended judgment of
conviction in Count 1 that reflects that the Defendant was convicted of a Drug-Free Zone
offense by a check in that box on the judgment form. Any notation in the special conditions
box indicating that the Defendant serve his entire sentence at 100% (as opposed to 15 years
of his sentence at 100%) should be removed. In all other respects, the trial court’s judgments
are affirmed.

_________________________________
ROBERT W. WEDEMEYER, JUDGE