IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
July 8, 2014 Session
STATE OF TENNESSEE V. BRANDON JONES
Direct Appeal from the Circuit Court for Madison County
No. 12-34 Donald H. Allen, Judge
No. W2013-00333-CCA-R3-CD - Filed November 26, 2014
The defendant, Brandon Jones, was convicted of possession of marijuana with intent to sell,
a Class E felony, and possession of a deadly weapon with intent to employ it in the
commission of a dangerous felony, a Class D felony. He was sentenced to mandatory
consecutive sentences of two years and four years for the respective convictions. On appeal,
the defendant contends that: (1) the trial court erred by allowing evidence regarding the
defendant’s custodial statements; (2) the trial court erred by allowing hearsay testimony
regarding statements made by the passenger in the defendant’s car; (3) the trial court erred
in allowing a police officer to testify as an expert and offer opinion testimony; and (4) the
evidence is insufficient to support the two convictions. Following review of the record, we
affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN, J., and R OBERT L. H OLLOWAY, Sp.J., joined.
C. Mark Donahoe, Jackson, Tennessee, for the appellant, Brandon Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Brian M. Gilliam, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
Procedural History
Factual Background and Procedural History
In the early morning hours of July 8, 2011, Officer Dennis Ballentine and Officer
Rodney Savage of the Jackson Police Department were on patrol near the intersection of
Briandfield and Tinker Hill Streets. The officers were part of the street crimes unit, which
worked high crime areas in a proactive rather than a reactive manner like standard patrol
units. During this time, the officers observed a silver Dodge Intrepid traveling at a high rate
of speed for the conditions. It appeared that the car was going to run a stop sign, but the
driver suddenly stopped the car just inside the intersection. Officer Ballentine noticed that
the tint on the car windows appeared to be illegally dark. Based upon his belief that the tint
was illegal, Officer Ballentine initiated a traffic stop of the vehicle.
Officer Ballentine approached the vehicle on the driver’s side and immediately
noticed a strong odor of marijuana, which he was very familiar with. Officer Savage
approached the passenger side of the car and also noticed the odor. Officer Ballentine asked
the defendant, the driver of the vehicle, if he had smoked any marijuana or had any in the car.
The defendant responded negatively. Nonetheless, because of the odor, Officer Ballentine
asked the defendant to step outside the car. He conducted a pat down search of the defendant
and felt a bulge, which he believed to be drugs, in the cargo pocket of the defendant’s shorts.
At that point, the defendant was taken into custody. He was handcuffed, and his
pockets were emptied. Officer Ballentine found a large bag of marijuana in the defendant’s
right cargo pocket and another large bag in his left cargo pocket, which contained three
smaller individually wrapped bags of marijuana. The drugs field tested to be 18.9 grams of
marijuana. In the defendant’s front pocket, the officer found $904 cash in small and varied
denominations. No rolling papers or other objects indicating personal use of marijuana were
found.
Once the defendant and his passenger, Mr. Love, were secured, the officers searched
the interior of the car. They found a .45 caliber handgun with a laser sight on the floorboard
between the two front seats. Upon questioning about the gun, Mr. Love denied any
knowledge of it. The defendant responded by telling Officer Ballentine that he knew the
loaded gun was present, but it was not his. Rather, the defendant claimed to be holding it for
someone else, but he refused to identify the person he was holding it for. The defendant was
taken to jail, and Mr. Love was released. The defendant was not issued a citation regarding
his window tinting.
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The defendant was indicted by a Madison County grand jury for possession of
marijuana with intent to sell and/or deliver, possession of a deadly weapon with the intent
to employ it in the commission of a dangerous felony, and being a convicted felon in
possession of a handgun. The defendant chose to proceed to trial. Prior to trial, the State
dismissed the charge of being a convicted felon in possession of a firearm.
At the trial, the State called both Officers Ballentine and Savage to testify to the above
events. Additionally, during direct examination, the State asked Officer Ballentine why he
had arranged the evidence collected from the defendant in a certain manner to take the
picture of the various evidence. He responded that it was done “[m]ainly to show the intent
to resell the or to sell the marijuana. You can see a large amount of cash. Personal users
don’t usually carry around cash that they earn from the sale of marijuana.” The defendant
objected to Officer Ballentine expressing an opinion when he had not been qualified as an
expert witness. The court sustained the objection unless Officer Ballentine testified as to his
qualifications. At that point, the State began questioning Officer Ballentine regarding the
officer’s experience and training. He testified that he had been to narcotics training where
he was taught to tell the different factors to differentiate between simple possession and
possession with the intent to sell or deliver. He also stated that he had five and a half years’
experience “on the street” and had encountered situations in which he was forced to make
that determination on at least a “weekly basis.” Officer Ballentine noted that some of the
factors to look for were how the drugs were packaged, individual bags versus bulk
packaging, large amounts of cash in smaller denominations, and large amounts of the drug.
Following this, the trial court overruled the defendant’s objection to the testimony.
The defendant presented no proof at trial. Following deliberations, the defendant was
convicted as charged by the jury on the remaining two counts. The trial court later sentenced
the defendant to two years for the drug charge and to four years at 100% for the firearm
charge. The court also ordered that the two sentences be served consecutively for a total
effective sentence of six years.
The defendant subsequently filed a timely motion for new trial challenging only the
sufficiency of the convicting evidence. After review, the trial court denied the motion, and
the defendant filed the instant appeal with this court.
Analysis
On appeal, the defendant has enumerated six issues for review, which the State
effectively combines into four. First, the defendant contends that the trial court improperly
allowed testimony regarding the defendant’s statements to police after he was taken into
custody. He also claims that the trial court improperly admitted hearsay statements when the
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officer was allowed to testify regarding Mr. Love’s statement to the officer regarding his
knowledge of the weapon. The defendant also puts forth three reasons that the court
improperly allowed Officer Ballentine to offer opinion testimony as an expert witnesses.
Lastly, the defendant contends that the evidence is insufficient to support his two
convictions.
I. Defendant’s Custodial Statements
First, the defendant challenges the admission of the verbal statement he made to
Officer Ballentine while in custody that the gun was not his but that he was holding it for
someone. He contends that the statement should not have been admitted because the State
failed to prove that the statement was “freely and voluntarily given and was in compliance
with the United States Supreme Court[’s] ruling in Miranda v. Arizona . . . .” The defendant
acknowledges that he did not object to the statement’s admission at trial but urges this court
to grant relief under the plain error standard of review. As the State points out, in addition
to waiver by failing to object, the defendant also waived review of the issue by failing to
include it in the motion for new trial. Tenn. R. App. P. 3(e); Tenn. R. App. P 36(a). We
agree. As an initial matter, we note that there is no dispute that the defendant had been
arrested and was in custody at the time he responded to the officer’s questions.
The defendant is correct that, waiver aside, our supreme court has held that appellate
courts are not precluded from reviewing an issue under the plain error doctrine. 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 new trial or assigned as error on
appeal.” See also Tenn. R. Evid. 103(d). This court may only consider an issue as plain error
when all five of the following factors are met:
(1) the record must clearly establish what occurred in the trial court;
(2) a clear and unequivocal rule of law must have been breached;
(3) a substantial right of the accused must have been adversely affected;
(4) the accused did not waive the issue for tactical reasons; and
(5) consideration of the error is “necessary to do substantial justice.”
State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); see
also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (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 64 (internal
quotations and citation omitted).
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It is the accused’s burden to persuade an appellate court that the trial court committed
plain error. State v. Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007) (citing United States v.
Olano, 507 U.S. 725, 734 (1993)). Further, complete consideration of all five of the factors
is not necessary when it is clear from the record that at least one of them cannot be satisfied.
Smith, 24 S.W.3d at 283. The Advisory Commission Comments to Tennessee Rule of
Appellate Procedure 13(b) suggest that the discretionary authority for the declaration of plain
error “be sparingly exercised.”
We agree with the defendant that:
In Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966), the United States Supreme Court held that “the prosecution may
not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-
incrimination.” The procedural safeguards must include warnings prior to any
custodial questioning that an accused has the right to remain silent, that any
statement he makes may be used against him, and that he has the right to an
attorney.
State v. Blackstock, 19 S.W.3d 200, 207 (Tenn. 2000); see also State v. Sawyer, 156 S.W.3d
531, 533 (Tenn. 2005). “Custodial”means that the subject of the questioning is either in
“custody or otherwise deprived of his freedom by the authorities in any significant way.”
Miranda, 384 U.S. at 478.
Again, there is no dispute in the record that the defendant was in fact in custody when
he answered Officer Ballentine’s question about the firearm. Officer Ballentine was clear
in his testimony that the defendant was taken into custody based upon the drugs found on his
person, and, only after that, did he search the car and discover the weapon. Thus, that point
is not in contention. Additionally, it is not in contention that there was no objection made
to the admission at trial, no motion to suppress was filed challenging the statement, and the
issue was not raised in the motion for new trial.
The defendant argues that his answer to the question, the statement that he was aware
of the gun’s presence and was merely holding it for someone else, should not have been
admitted because he was custody when it was made and because no Miranda warnings were
given. He asserts that the State failed to show that the statement was freely and voluntarily
given and was in compliance with Miranda.
The defendant’s argument, however, must fail because it fails to recognize the burden
of proof on plain error review. See Bledsoe, 226 S.W.3d at 355. It is the defendant who
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bears this burden. Id. Because of the failure to object to the admission of or to have a
suppression hearing, the record lacks the necessary evidence to allow review. Basically, the
record is inadequate to conduct plain error review of the evidentiary issue. Thus, while the
defendant has established that he was in fact in custody and entitled to Miranda warnings at
the time of the questioning, he has failed on appeal to show that he was not afforded those
rights. There is no mention made anywhere in the record whatsoever of Miranda warnings.
The issue was not raised in a motion to suppress, and Officer Ballentine was never asked if
he in fact administered those rights. There is simply nothing on the record to establish that
“a clear and unequivocal rule of law” was breached. Moreover, we are also unable to reach
a determination that, even if error had been established, that it was of such magnitude that
the results of the trial would have been affected. Mr. Love denied knowledge of the gun, a
fact which was admitted into evidence. The most reasonable inference is that the gun
belonged to the defendant, especially in light of the illegal narcotics found on his person and
that he was driving his vehicle in a high crime area late at night. Based upon this, the
defendant is not entitled to relief under plain error review.
The State asks this court to go further and explicitly hold that reviewing courts should
not consider any suppression issue as a matter of plain error. Although citing no Tennessee
cases which have explicitly held such, the State does cite several federal cases. See United
States v. Burke, 633 F.3d 984, 988 (10th Cir. 2011), cert. denied, 131 S. Ct. 2130 (2011) (a
suppression argument raised for the first time on appeal is waived absent a showing of good
cause for why it was not raised before the trial court); United States v. Yousef, 327 F.3d 56,
125 (2d. Cir. 2003) (“we will find complete waiver of a suppression argument that was made
in an untimely fashion before the district court unless there is a showing of cause”); United
State v. Chevez-Valencia, 116 F.3d 127, 130 (5th Cir. 1997) (“A defendant who fails to make
a timely suppression motion cannot raise the claim for the first time on appeal.”). The State
notes that an important reason this rule was adopted was to avoid placing the State in the
difficult position of defending itself against a potentially meager record. The State notes that
it bears the burden of proof in a suppression hearing, and if the issue is not raised, it is
deprived of a hearing at which to present proof focused on that issue. It further contends
that, as here, such a rule would preclude defendants from trying to use the absence of
evidence in the record to their advantage.
We agree that the rule suggested by the State has some merit. As evidenced in the
case before us, Miranda warnings are now considered common-place, and are often assumed
to be given. In other words, it is not something the State puts forth evidence of in every trial.
Rather, any irregularities should be raised by the defense, and then the State bears the burden
of establishing that the warnings were in fact given as required by law. However, we see
no need for a specific rule barring plain error review in every suppression or evidentiary
issue, especially in light of the fact that, in actuality, defendants will likely be barred from
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relief because of an inability to put forth evidence of a violation of the rule or an adequate
record for plain error review. Because it is not necessary to our determination of this issue
in this case, we decline to adopt such a blanket rule.
II. Hearsay Statements of Mr. Love
Next, the defendant contends that the trial court erred in admitting the verbal
statement made by Mr. Love, the passenger in the car, to police officers that he had no
knowledge that the firearm was in the car. At trial, Officer Ballentine was asked if he
questioned Mr. Love with regard to the weapon. Over the objection of the defendant, the
court allowed the hearsay statement into evidence. The defendant claims this admission was
error under Tennessee Rule of Evidence 803. The defendant contends that the State should
have subpoenaed Mr. Love to testify directly “regarding what was a tremendously important
issue regarding possession and ownership of the firearm.” The State contends, however, that
the defendant is not entitled to relief because he failed to demonstrate that the admission of
the statement denied him substantial justice. Even though the defendant did object to the
statement’s admission at trial, he failed to raise the issue in his motion for new trial. As such,
the issue is also waived and can only be reviewed through plain error review.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
Tenn. R. Evid. 801(c). As a general rule, hearsay is not admissible at trial unless it falls
under one of the exceptions to the rule against hearsay. Tenn. R. Evid. 802. “‘The
determination of whether a statement is hearsay and whether it is admissible through an
exception to the hearsay rule is left to the sound discretion of the trial court.’” State v.
Thomas, 158 S.W.3d 361, 400 (Tenn. 2005) (quoting State v. Stout, 46 S.W.3d 689, 697
(Tenn. 2001)). Accordingly, this court will not reverse the trial court’s ruling on this issue
absent a clear showing of an abuse of discretion. Id.
The State concedes, and we agree, that the statement is hearsay. At the trial, the
defendant objected to the statement as hearsay, and the trial court overruled the objection
with no other statements made on the record regarding the court’s decision, i.e., if the
statement was not hearsay or if it was admissible under a hearsay exception. However, the
defendant, by failing to include the issue in his motion for new trial, has again waived the
issue under normal appellate review.
Reviewing the issue under the plain error standard, we are unable to conclude that he
is entitled to relief. The defendant himself stated that he was aware of the gun and was
holding it for some unknown person. Moreover, he was the driver of the vehicle and was the
one found in possession of the illegal narcotics. Thus, his possession of the firearm was
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sufficiently established without the hearsay testimony of Officer Ballentine. As such, the
defendant cannot show that review of the issue is necessary to do substantial justice, as
required for plain error review.
III. Testimony of Officer Ballentine
Next, the defendant presents three issues challenging the opinion testimony of Officer
Ballentine: (1) whether the trial court erred in allowing expert opinion testimony from
Officer Ballentine regarding his opinion as to the ultimate issue before the jury as to whether
or not the marijuana possessed in this case was with the intent to sell or deliver; (2) whether
the trial court erred in allowing opinion testimony by Officer Ballentine without him being
qualified as an expert witness; and (3) whether the trial court erred in allowing opinion
testimony from Officer Ballentine without notice to the defendant that the officer would be
called as an expert witness and give opinion testimony. The State argues that the trial court
properly allowed the officer to offer opinions on whether the defendant was selling marijuana
because Officer Ballentine easily qualified as an expert witness, and the defendant
established no prejudice from the lack of notice. We agree.
The admission of expert testimony is governed by Tennessee Rules of Evidence 702
and 703. Rule 702 provides that “[i]f 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.” Tenn. R. Evid. 702. Rule 703 provides
that expert testimony shall be disallowed “if the underlying facts or data indicate lack of
trustworthiness.” Tenn. R. Evid. 703.
In McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257, 265 (Tenn. 1997), our
supreme court recited several nonexclusive factors that a court may consider in determining
the reliability of scientific testimony, including:
(1) whether scientific evidence has been tested and the methodology with
which it has been tested; (2) whether the evidence has been subjected to peer
review or publication; (3) whether a potential rate of error is known; (4)
whether . . . the evidence is generally accepted in the scientific community;
and (5) whether the expert’s research in the field has been conducted
independent of litigation.
Brown v. Crown Equipment Corp., 181 S.W.3d 268, 274 (Tenn. 2005) (quoting McDaniel,
955 S.W.2d at 265). The Brown court identified two other factors that a trial court may
consider in assessing the reliability of an expert’s methodology: (1) the expert’s
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qualifications for testifying on the subject at issue, and (2) the connection between the
expert’s knowledge and the basis for the expert’s opinion. Id. (citations omitted).
“[T]he allowance of expert testimony, the qualifications of expert witnesses, and the
relevancy and competency of expert testimony are matters which rest within the sound
discretion of the trial court.” State v. Rhoden, 739 S.W.2d 6, 13 (Tenn. Crim. App. 1987)
(citing Murray v. State, 377 S.W.2d 918, 920 (Tenn. 1964); Bryant v. State, 539 S.W.2d 816,
819 (Tenn. Crim. App. 1976); State v. Holcomb, 643 S.W.2d 336, 341 (Tenn. Crim. App.
1982)). As such, we will not disturb the trial court’s ruling absent a clear showing that it
abused its discretion in admitting the testimony. Id.; see also State v. Stevens, 78 S.W.3d
817, 832 (Tenn. 2002).
The following colloquy occurred during the testimony of Officer Ballentine:
Q Okay. And explain for the jury why you would take the picture
arranged the way it - - the way the items are arranged.
A Mainly to show the intent to resell the or to sell the marijuana. You can
see a large amount of cash. Personal users don’t usually carry around cash that
they earn from the sale of marijuana.
[Defense Counsel]: Your Honor, I’m going to object to his expressing
his opinion. He is not qualified as an expert witness.
The Court: Well, I’ll sustain the objection unless he can testify as to
qualifications so.
Q Have you been trained on the distinction between a simple possession
and possession with the intent to sell or deliver?
A I’ve been to narcotics training, as well as my experience on the street.
Q All right. What sort of training have you had? I guess detail your
experience.
A Just a basic narcotics course just to - - . . . .Basically to inform officers
on things to look for, things to bundle together as far as, you know, the
difference between a personal user versus somebody that’s intending to make
revenue from the sale of illegal or illicit drugs.
Q As part of your training, how often would you say you’ve been trained
on things like that?
A Sporadically throughout my five and a half years. I don’t have a
specific count.
Q All right. And in your five and a half years as far as dealing with
narcotic cases such as this, how many times would you say you’ve actually
encountered situations where you’ve had to use your training, made that
distinction.
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A At least on a weekly basis, you know. . . .
Q All right. And are you trained on things to look for to distinguish
between someone who’s simply possessing marijuana and possessing with the
intent to sell or deliver?
A That’s correct.
Q What things are you trained to look for?
A You look for things like the - - in this particular case, marijuana, you
look for it to be individually wrapped. You look for things like scales to weigh
it out as far as to know what to sell it for. You look for large or denominations
of cash in separate denominations so that you can give better change and then,
of course, large quantities, you know, the marijuana, the more you have, the
harder it is to smoke; therefore, the larger amount is generally, especially over
14 grams, is considered resale.
[Defense Counsel]: Your Honor, he’s tstifying as to his opinion during
this voir dire.
[The State]: Your Honor, he’s testifying as far as his training, what
he’s - -
The Court: All right. Overruled. The objection is overruled.
Thereafter, the State continued its questioning of the witness.
As pointed out by the State, while the defendant did object to the testimony at trial,
the issue was not raised in his motion for new trial. Thus, our review is again limited to plain
error. See Tenn. R. App. P. 3(e).
The defendant’s argument ignores that this court has previously held that when the
State establishes that an officer possesses the necessary training, experience, and familiarity
with 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. Apr. 9, 2010); see also
State v. Gayle Thomas Crawford, No. W2009-00263-CCA-R3-CD, 2009 Tenn. Crim. App.
LEXIS 859 (Tenn. Crim. App. Oct. 7, 2009); State v. Daniel Potin, W2005-01100-CCA-R3-
CD, 2006 Tenn. Crim. App. LEXIS 444 (Tenn. Crim. App. June 7, 2006), perm. app. denied
2006 Tenn. LEXIS 1087 (Tenn. Nov. 13, 2006); State v. Samuel L. Giddens, No. M2002-
00163-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 311 (Tenn. Crim. App. Nov. 15, 2004);
State v. Timothy Murrell, No. W2001-02279-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS
597 (Tenn. Crim. App. Jul. 2, 2003). Despite the defendant’s argument to the contrary,
Officer Ballentine was qualified properly under this standard. He testified that he had been
to narcotics training and had received “on the street” training for five and one half years. He
indicated that he dealt with these issues on at least a weekly basis during that period of time.
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The trial court, although never specifically referring to the officer as an expert, clearly
reached the same conclusion based upon the fact that the objection was overruled. While the
better practice may have been to allow the defendant to voir dire Officer Ballentine, he did
not suffer prejudice because of the failure. The defendant failed to make a request to be
given the opportunity, and he was afforded an opportunity to cross-examine and attempt to
damage the officer’s credibility or experience.
The defendant relies upon the case of State v. Dougherty to support his argument on
appeal. In that case, this court reversed the trial court’s decision to allow a highway
patrolman to testify as an expert with regard to accident reconstruction. State v. Carol H.
Dougherty, 1989 Tenn. Crim. App. LEXIS 9 (Tenn. Crim. App. Jan. 9, 1989). However, that
case is distinguishable from the defendant’s case and does not lend itself to supporting the
defendant’s argument. The determination in that case was based upon a continuing duty of
the State to provide the information under Rule 16(a)(1)(D) of the Rules of Criminal
Procedure. It is simply not relevant to our review of the issues.
The defendant also complains that Officer Ballentine’s testimony encompassed one
of the ultimate issues of fact in the case, i.e., whether the defendant possessed the drugs with
the intent to sell or deliver them. However, “[t]estimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate issue to
be decided by the trier of fact.” Tenn. R. Evid. 704 (emphasis added). Here, the testimony
was admissible because it aided the jury in understanding facts about drug sales which they
were unlikely to have known. Thus, the defendant is not entitled to relief based upon that
argument.
Lastly, the defendant also complains that the testimony was improperly allowed
because he was not given notice that Officer Ballentine would testify as an expert. While he
was listed on the witness list supplied to the defendant, he was not designated as an expert.
The State acknowledges that Officer Ballentine was not designated as an expert on the
witness list, nor were any other witnesses. We cannot conclude that, based upon this, the
defendant has shown that he was prejudiced or entitled to relief. As an aside, the above cited
law which allows officers to give opinion testimony in this area has become so common-
place, i.e., it is now expected that police will testify as to the certain methods and processes
in the drug trade, we question whether designation as an expert is required for the defendant
to be “on notice.” Regardless, the defendant has simply failed on this record to show that any
consideration of any alleged errors is “necessary to do substantial justice.”
IV. Sufficiency of the Evidence
Lastly, the defendant complains that the evidence is insufficient to support his two
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convictions. However, his argument with regard to the drug conviction is that the evidence
is insufficient because it was based on the inadmissible testimony of Officer Ballentine. His
argument as to the firearm conviction is that is was based upon the inadmissable hearsay
testimony of Mr. Love regarding his knowledge of the weapon. The defendant argues that
without these inadmissable statements, the proof is insufficient to support the convictions.
However, we have previously addressed the defendant’s claims regarding the admissibility
of the statements and found them to be without merit. Nonetheless, we will conduct a
general sufficiency review despite the fact that the defendant makes no argument in support
of such.
When the sufficiency of the evidence is challenged, the relevant question is “whether,
after reviewing 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.” State v.
Dorantes, 331 S.W.3d 370, 379 (2011); Jackson v. Virginia, 443 U.S. 307, 319(1979). “[O]n
appeal, the State must be afforded the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn therefrom.” Dorantes, 331 S.W.3d at 379 (internal
quotation omitted). If the evidence is insufficient to support a finding of guilt beyond a
reasonable doubt, the conviction must be set aside. Tenn. R. App. 13(e). It is the trier of fact
who resolves all questions of witness credibility, the weight and value of the evidence, as
well as all factual issues raised by the evidence. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. App. 1987). Reviewing courts should neither re-weigh the evidence nor
substitute their own inferences for those drawn by the jury. State v. Evans, 108 S.W.3d 231,
236 (Tenn. 2003).
The trial court’s approval of the jury’s verdict accredits the State’s witnesses and
resolves all conflicts in the evidence in the State’s favor. State v. Moats, 906 S.W.2d 431,
433-34 (Tenn. 1995). “Because a guilty verdict removes the presumption of innocence and
replaces it with a presumption of guilt, on appeal a defendant bears the burden of showing
why the evidence is insufficient to support the conviction.” State v. Thacker, 164 S.W.3d
208, 221 (Tenn. 2005). These rules apply whether the verdict is predicated upon direct
evidence, circumstantial evidence, or a combination of both. Dorantes, 331 S.W.3d at 379.
In weighing the sufficiency of the evidence, circumstantial and direct evidence are treated
the same, and the State is not required to exclude every reasonable hypothesis other than that
of guilt. Id. at 381.
The defendant was convicted of possessing a controlled substance with intent to sell
or deliver and possession of a deadly weapon with intent to employ it during the commission
of a dangerous felony. Tennessee Code Annotated section 39-17-417(a) states that it is an
offense for a defendant to knowingly possess a controlled substance with the intent to sell
the controlled substance. The Code further defines marijuana as a controlled substance.
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T.C.A. § 39-17-415(a)(1) (2010). Further, an inference may be made from the amount of a
controlled substance possessed by an offender, along with other relevant facts surrounding
the arrest, that the controlled substance was possessed with the purpose of selling or
otherwise dispensing of the substance. T.C.A. § 39-17-119.
In this case, the defendant was found to be in possession of over half an ounce of
marijuana. Some of the drug had been packed into smaller bags, actions normally taken for
the purpose of resale. The defendant was also in possession of a large sum of cash in smaller
denominations, which suggested he had previously sold part of his drugs and been paid or
needed it to make change for future sales. Finally, the defendant had no drug paraphernalia
in his possession which would indicate that he intended to consume the marijuana for his
own personal use. The facts, taken together, are more than sufficient to allow a jury to reach
the conclusion that the defendant committed the crime of possession of a controlled
substance with intent to sell or deliver.
Likewise, the evidence is sufficient to support the conviction for possession of a
deadly weapon with the intent to employ it during the commission of a dangerous felony.
First, we note that possession of a controlled substance with the intent to sell, as the
defendant was convicted of, is a dangerous felony in Tennessee. T.C.A. § 39-17-
1324(i)(1)(L).
The proof clearly shows that the defendant was in possession of a firearm during the
time he was committing the felony of possessing a controlled substance with the intent to sell
or deliver. The only element that could be challenged is that of intent. However, as the State
notes, intent may be inferred from both direct and circumstancial evidence. State v.
Washington, 658 S.W.2d 144, 146 (Tenn. Crim. App. 1983). The necessary intent to support
a conviction for this offense may be proven by the circumstances surrounding the carrying
of the weapon. Cole v. State, 539 S.W.2d 46, 49 (Tenn. Crim. App. 1976). The purpose of
going armed should be determined from the facts of each particular case. Hill v. State, 298
S.W.2d 799, 799-800 (Tenn. 1957).
In this case, the evidence establishes that the defendant, while committing the
dangerous felony, had a loaded gun with a round in the chamber under the seat of his car.
He was driving around late at night in a high crime area in possession of the gun and the
drugs. The gun was fitted with a laser sight. From these facts, the record supports the jury’s
conclusion that the defendant possessed the gun, a deadly weapon, with the intent to employ
it during the commission of selling or delivering a controlled substance.
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CONCLUSION
Based upon the foregoing, the judgment of the trial court is affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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State of Tennessee v. Brandon Jones
Combined Opinion