State of Tennessee v. Anthony T. Brandon

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 13, 2016

STATE OF TENNESSEE v. ANTHONY T. BRANDON

Appeal from the Circuit Court for Bedford County
No. 17776 Forest A. Durard, Jr., Judge

No. M2015-00654-CCA-R3-CD – Filed April 19, 2016
_____________________________

Defendant, Anthony T. Brandon, stands convicted of possession with intent to sell .5
grams or more of cocaine, possession with intent to sell .5 grams or more of cocaine base,
and possession or casual exchange of marijuana. The trial court imposed an effective
twenty-four-year sentence. On appeal, Defendant argues: (1) that there was insufficient
evidence to support his convictions for possession with intent to sell .5 grams or more of
cocaine and for possession with intent to sell.5 grams or more of cocaine base; (2) that
his sentences were excessive; and (3) that the trial court should have merged Counts 1
through 4 into one conviction. Based on the parties‟ briefs, the record, and the applicable
law, we merge Defendant‟s convictions for possession with intent to sell .5 grams or
more of cocaine and possession with intent to sell .5 grams or more of cocaine base, but
we affirm the judgments of the trial court in all other respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Modified in
Part and Affirmed in Part.

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., joined. ROGER A. PAGE, Sp. J., not participating.

Donna Orr Hargrove, District Public Defender, and Michael J. Collins, Assistant District
Public Defender, for the appellant, Anthony T. Brandon.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Robert James Carter, District Attorney General; and Michael David Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.
 OPINION

This is Defendant‟s direct appeal from his Bedford county drug convictions that
began with Defendant in a hotel room with a large sum of cash, powder cocaine, and
cocaine base, also known as crack cocaine. As a result, Defendant was indicted for
alternative theories of possession with intent to sell or deliver .5 grams or more of
cocaine (Counts 1 & 2), alternative theories of possession with intent to sell or deliver .5
grams or more of cocaine base (Counts 3 & 4), and possession or casual exchange of
marijuana (Count 5). After a jury trial, Defendant was convicted as charged.

Facts

Officers Jose Garza and Todd Sanders of the Shelbyville Police Department were
dispatched to the Microtel Inn & Suites on July 4, 2013, at approximately 2:51 a.m. after
a report was made about a man being too loud in one of the rooms. Upon their arrival, a
loud male voice was heard inside the room. The officers knocked on the door.
Defendant opened the door and inquired as to the problem. The officers told Defendant
that the clerk wanted him to leave because he was being too loud, even after having been
asked to be quiet. Defendant agreed to leave and stated that he would gather his things.
Defendant asked the clerk for a refund of the deposit of “his money” on the room, and the
clerk agreed. After the clerk went to retrieve the deposit, Defendant invited the officers
into the room. Officer Garza stepped into the doorway of the room and saw Defendant
walking around the room gathering items that were scattered “all over the room” and
placing them into a trash bag. The hotel room appeared to be occupied by Defendant.

While Defendant was packing, Officer Sanders saw a “clear plastic baggy”
containing “a white powdery substance”1 lying in the bathroom floor near the door.
Defendant initially denied owning the bag of cocaine but then later admitted that it
belonged to him.2 Defendant also produced two Crown Royal bags―one containing
$1438 in cash and the other holding two marijuana “blunts”―from his pants pocket. The
“blunts” emitted the very distinct odor of marijuana. Defendant did not attempt to

1
Marked as trial exhibit 3, Officers Sanders and Garza testified the substance found on the
bathroom floor was white powder. Later, TBI Agent Laura Cole identified trial exhibit 3 as 2.85 grams of
cocaine base.
2
During cross-examination, Officer Garza testified that on the night of Defendant‟s arrest, the
officers‟ microphones were recording; however, Defendant‟s claim that the cocaine found on the
bathroom floor was his could not be heard. Officer Garza explained that the relevant portion of the
recording was “muffled” but acknowledged that some of Defendant‟s statements were clear on the
recording. Officer Garza explained that large portions of the audio recording were inaudible because the
two microphones―his and Officer Sander‟s―were so close together, which causes interferences with the
recording.
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retrieve a Crown Royal bag that was on the nightstand. Defendant refused to allow the
officers to search the room, stating that the room was not in his name. The officers
confirmed that the room was in the name of Shana Bryan, not Defendant. The officers
then arrested Defendant and took him outside.

One of the officers called Officer Jody Shelton, who worked with a drug-detection
dog, to come to the hotel room. When Officer Shelton and his K-9 partner, Julie, entered
the room, the dog “alerted” by the nightstand near the bed. On one of the nightstand‟s
shelves, Officer Shelton found a Crown Royal bag with crack cocaine and powder
cocaine inside. There was also $7120 in cash inside the Crown Royal bag. Based on his
experience as a police officer, Officer Garza opined that the amount of crack cocaine was
more than the average user normally possessed. Officer Shelton testified that based on
his experience as a narcotics officer, users of crack cocaine were generally only found
with a single rock of crack cocaine and usually did not have large amounts of cash in
their possession.

Office Garza testified that officers later discovered that Amy Merlow was also
staying with Defendant in the hotel room. When she returned to the hotel, she smelled of
alcohol. She passed field sobriety tests administered onsite by officers. Ms. Merlow
initially refused a search of her vehicle. However, the car was searched after the drug-
detection dog “alerted” by the vehicle. Inside the car, Officer Shelton found a “crack
pipe,” which is used to smoke crack cocaine. No other narcotics were found inside the
car. Ms. Merlow was not charged with possession of drug paraphernalia or possession of
any of the cocaine found in the hotel room.

The narcotics found in the hotel room in this case were identified by the Tennessee
Bureau of Investigation as powder cocaine and cocaine base (also known as crack
cocaine). The powder cocaine weighed 6.24 grams and the cocaine base weighed 2.85
grams and 14.74 grams. Special Agent Laura Cole explained that powder cocaine and
cocaine base are both cocaine but that cocaine base is created by cooking or baking
powder cocaine, which changes the narcotic‟s chemical composition. She explained that
cocaine users smoke cocaine base and “snort[]” powder cocaine.

Timothy Lane, the director of the Drug Task Force for the 17th Judicial District,
testified that during his nineteen years as director of the Drug Task Force, crack cocaine
had been a problem in that judicial district and that during that time, the Drug Task Force
had been involved with approximately 1500 felony drug cases involving crack cocaine.
Director Lane explained that if he encountered someone with 6.24 grams of powder
cocaine, he would infer that the person possessed the drugs with the intent to distribute or
sell them. Director Lane testified that powder cocaine sells on the street for between $80
and $100 a gram; therefore, 6.24 grams would be worth approximately $600. Similarly,
Director Lane explained that possession of over 17 grams of crack cocaine indicated that
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the person had the drugs for the purpose of distribution or resale because users of crack
cocaine normally possessed only .2 to .4 grams. Director Lane stated that .2 grams of
crack cocaine is normally sold for approximately $50. He explained that a narcotics user
rarely possesses both crack cocaine and powder cocaine; they usually have one or the
other. Director Lane also explained that individuals distributing and selling cocaine
frequently “set up shop” in a hotel room so that their business does not attract attention to
their homes.

Jason Bryan, Shana Bryan‟s husband, testified for Defendant. He saw both
Defendant and Amy Merlow on the day prior to Defendant‟s arrest because he helped
Defendant move from one hotel to another. Ms. Merlow was at a store across from the
hotel with what appeared to be “several thousand dollars” in cash. Mr. Bryan explained
that he had never seen either Defendant or Ms. Merlow with that much money before.
Mr. Bryan had two prior theft convictions and one prior attempted theft conviction.

The parties stipulated that Rick Overcast, a bondsman, would have testified that
Ms. Merlow paid Defendant‟s bond in the amount of $1200 in cash. Mr. Overcast also
would have testified that it is not uncommon for one person to pay another person‟s bond.

The jury subsequently convicted Defendant of possession with intent to sell .5
grams or more of cocaine (Count 1), possession with intent to deliver .5 grams or more of
cocaine (Count 2), possession with intent to sell .5 grams or more of cocaine base (Count
3), possession with intent to deliver .5 grams or more of cocaine base (Count 4), and
possession or casual exchange of marijuana (Count 5). The trial court merged Counts 1
and 2 and merged Counts 3 and 4. Therefore, Defendant stands convicted of possession
with intent to sell .5 grams or more of cocaine, possession with intent to sell .5 grams or
more of cocaine base, and possession or casual exchange of marijuana. The trial court
imposed an effective twenty-four-year sentence.

Analysis

Defendant argues: (1) that there was insufficient evidence to support his
convictions for possession with intent to sell .5 grams or more of cocaine and for
possession with intent to sell .5 grams or more of cocaine base; (2) that his sentences
were excessive; and (3) that the trial court should have merged Counts 1 through 4 into a
single conviction for possession with intent to sell .5 grams or more of cocaine. The
State responds that there was sufficient evidence to uphold Defendant‟s convictions, that
his sentences were justified, and that the trial court‟s refusal to merge Defendant‟s
convictions for possession with intent to sell or deliver .5 grams or more of cocaine and
possession with intent to sell or deliver .5 grams or more of cocaine base into one count
was proper.
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 I. Sufficiency of the Evidence

When a defendant challenges the sufficiency of the evidence, this Court is obliged
to review that claim according to certain well-settled principles. The relevant question is
whether any rational trier of fact could have found the accused guilty of every element of
the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
443 U.S. 307, 319 (1979). The jury‟s verdict replaces the presumption of innocence with
one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
introduced at trial was insufficient to support such a verdict. State v. Reid, 91 S.W.3d
247, 277 (Tenn. 2002). The prosecution is entitled to the “strongest legitimate view of
the evidence and to all reasonable and legitimate inferences that may be drawn
therefrom.” State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (quoting State v.
Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Questions concerning the “credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
proof are matters entrusted to the jury as the trier of fact.” Wagner, 382 S.W.3d at 297
(quoting State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)). “A guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution‟s theory.” Reid, 91 S.W.3d at 277
(quoting State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). It is not the role of this
Court to reweigh or reevaluate the evidence, nor to substitute our own inferences for
those drawn from the evidence by the trier of fact. Id. The standard of review is the
same whether the conviction is based upon direct evidence, circumstantial evidence, or a
combination of the two. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009).

To prove that Defendant possessed with intent to sell or deliver .5 grams or more
of cocaine or cocaine base, the State must show that Defendant knowingly possessed the
controlled substance with the intent to sell and deliver it. T.C.A. § 39-17-417(a)(4). “A
violation of subsection (a) with respect to . . . [c]ocaine . . . is a Class B felony if the
amount involved is point five (0.5) grams or more of any substance containing cocaine. . .
.” Id. § 39-17-417(c)(1).

Viewing the evidence in the light most favorable to the State, there was sufficient
evidence to support Defendant‟s convictions. Officers Garza and Sanders both testified
that Defendant was discovered alone in a hotel room and that when asked to leave,
Defendant requested a refund of the room deposit. Inside the room, officers found a
small bag of cocaine on the bathroom floor, which Defendant admitted belonged to him.
Defendant also produced two Crown Royal bags―one containing $1438 in cash and the
other holding two marijuana “blunts”―from his pants pocket. Finally, after K-9 Julie
searched the room, Officer Shelton discovered a Crown Royal bag containing crack
cocaine, powder cocaine, and $7120 in cash. Special Agent Cole testified that the
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powder cocaine found in the room weighed 6.24 grams and the cocaine base weighed
2.85 grams and 14.74 grams. Director Lane testified that the amount of drugs found in
this case, along with the large amount of cash, was indicative of someone selling drugs
rather than just using drugs. This evidence, taken together, was sufficient to support
Defendant‟s convictions for possession with intent to sell .5 grams or more of cocaine
and cocaine base and possession with intent to deliver .5 grams or more of cocaine and
cocaine base. Defendant is not entitled to relief on this issue.

II. Sentencing

Defendant also argues that his sentences were excessive and contrary to the law.
The State responds that the trial court did not abuse its discretion during sentencing.

A. Facts from Sentencing Hearing

The State introduced Defendant‟s presentence report into evidence and asked that
the facts from trial be incorporated by reference. Defendant introduced a paycheck stub
from shortly before trial; Defendant‟s short term disability application from 2005; a leave
of absence request; and a certificate of completion from Buffalo Valley, a treatment
facility for drug and alcohol abuse.

The State requested that the trial court apply three enhancement factors: “(1) The
defendant has a previous history of criminal convictions or criminal behavior, in addition
to those necessary to establish the appropriate range”; “(2) The defendant was a leader in
the commission of an offense involving two (2) or more criminal actors”; and “(8) The
defendant, before trial or sentencing, failed to comply with the conditions of a sentence
involving release into the community.” The State also requested consecutive sentencing.

After hearing arguments from both parties, the trial court ruled that Defendant was
a Range I, standard offender. The trial court found that enhancement factors (1) and (8)
applied and put “considerable emphasis” on those two factors. Defendant had at least 18
prior misdemeanor convictions and one prior felony conviction. The trial court was
especially concerned that while on bond and probation for a felony drug offense in 1996,
Defendant committed several other offenses. The trial court noted that Defendant‟s
“track record on community release is poor. . . [and] miserable.” The trial court found
that while it believed there were other actors involved in this case, there was not enough
evidence in the record to establish enhancement factor (2). The trial court found that no
mitigating factors applied. The trial court imposed a sentence of 12 years for each
possession with intent to sell conviction and a sentence of 11 months and 29 days for the
possession of marijuana conviction.

As to whether the sentences should run concurrently or consecutively, the trial
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court noted the State‟s argument that Defendant was a professional criminal who has
devoted his life to criminal activity as a major source of livelihood. The trial court
explained that “[t]his was not a little drug deal. This was $8500 and a considerable
amount of cocaine or crack cocaine found in a motel room in Bedford County.” The trial
court found very little evidence of Defendant having a source of income outside of illegal
drug activity. However, the trial court found that the “greater argument” for consecutive
sentencing was that Defendant was an offender whose record of criminal activity was
extensive. The trial court noted that Defendant had an extensive misdemeanor record
extending over 20 years with many convictions involving drugs. The trial court ordered
the two 12-year sentences to run consecutively to each other and the misdemeanor
sentence to run concurrently to the second 12-year sentence, for a total effective sentence
of 24 years in incarceration.

Defendant now challenges the trial court‟s sentence and argues that the effective
sentence is excessive.

B. Application of Enhancement Factors

In determining an appropriate sentence, a trial court must consider the following
factors: (1) the evidence, if any, received at the trial and the sentencing hearing; (2) the
presentence report; (3) the principles of sentencing and arguments as to sentencing
alternatives; (4) the nature and characteristics of the criminal conduct involved; (5)
evidence and information offered by the parties on mitigating and enhancement factors;
(6) any statistical information provided by the administrative office of the courts as to
sentencing practices for similar offenses in Tennessee; (7) any statement the defendant
makes on his own behalf as to sentencing; and (8) the potential for rehabilitation. T.C.A.
§§ 40-35-103(5), -113, -114, -210(b). In addition, “[t]he sentence imposed should be the
least severe measure necessary to achieve the purposes for which the sentence is
imposed.” T.C.A. § 40-35-103(4).

Pursuant to the 2005 amendments, the Sentencing Act abandoned the statutory
presumptive minimum sentence and rendered enhancement factors advisory only. See
T.C.A. § 40-35-114, -210(c). The 2005 amendments set forth certain “advisory
sentencing guidelines” that are not binding on the trial court; however, the trial court
must nonetheless consider them. See id. § 40-35-210(c). Although the application of the
factors is advisory, a court shall consider “[e]vidence and information offered by the
parties on the mitigating and enhancement factors set out in §§ 40-35-113 and 40-35-
114.” Id. § 40-35-210(b)(5). The trial court must also place on the record “what
enhancement or mitigating factors were considered, if any, as well as the reasons for the
sentence, in order to ensure fair and consistent sentencing.” Id. § 40-35-210(e).

When an accused challenges the length and manner of service of a sentence, this
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court reviews the trial court‟s sentencing determination under an abuse of discretion
standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d
682, 707 (Tenn. 2012). If a trial court misapplies an enhancement or mitigating factor in
passing sentence, said error will not remove the presumption of reasonableness from its
sentencing determination “so long as it is within the appropriate range and the record
demonstrates that the sentence is otherwise in compliance with the purposes and
principles listed by statute.” Bise, 380 S.W.3d at 709-10. Moreover, under such
circumstances, appellate courts may not disturb the sentence even if we had preferred a
different result. State v. Carter, 254 S.W.3d 335, 346 (Tenn. 2008). The party
challenging the sentence imposed by the trial court has the burden of establishing that the
sentence is erroneous. T.C.A. § 40-35-401, Sentencing Comm‟n Cmts.; State v. Ashby,
823 S.W.2d 166, 169 (Tenn. 1991).

In this case, Defendant was convicted of Class B felonies, see T.C.A. § 39-17-
417(c)(1); therefore, his sentencing exposure as a Range I offender was not less than
eight nor more than twelve years for each conviction. T.C.A. § 40-35-112(a)(2). When
determining the length of Defendant‟s sentence, the trial court considered three
enhancement factors but only gave two factors weight during sentencing―“(1) The
defendant has a previous history of criminal convictions or criminal behavior, in addition
to those necessary to establish the appropriate range,” and “(8) The defendant, before trial
or sentencing, failed to comply with the conditions of a sentence involving release into
the community.” In so doing, the court noted Defendant‟s numerous misdemeanor
convictions and prior felony conviction. The court also outlined Defendant‟s history of
failing to comply with conditions related to his release back into the community,
including the crimes that Defendant committed while on bond and probation. The court
also found that no mitigating factors applied. Therefore, we conclude that because the
trial court properly considered the applicable enhancement factors when determining the
length of Defendant‟s sentence and because Defendant received a sentence within the
appropriate sentencing range, the trial court did not abuse its discretion in sentencing
Defendant to the maximum sentence within his sentencing range. Defendant is not
entitled to relief.

C. Consecutive Sentencing

We also employ an abuse of discretion with a presumption of reasonableness
standard of review when considering consecutive sentencing determinations by a trial
court. State v. Pollard, 432 S.W.3d 851, 860 (Tenn. 2013). Thus, the presumption of
reasonableness gives “deference to the trial court‟s exercise of its discretionary authority
to impose consecutive sentences if it has provided reasons on the record establishing at
least one of the seven grounds listed in Tennessee Code Annotated section 40-35-
115(b).” Id. at 861.

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 The procedure used by the trial courts in deciding sentence alignment is governed
by Tennessee Code Annotated section 40-35-115, which lists the factors that are relevant
to a trial court‟s sentencing decision. Imposition of consecutive sentences must be “justly
deserved in relation to the seriousness of the offense.” T.C.A. § 40-35-102(1). The
length of the resulting consecutive sentence must be “no greater than that deserved for the
offense committed.” Id. § 40-35-103(2). The court may order consecutive sentences if it
finds by a preponderance of the evidence that one or more of the following seven
statutory criteria exists:

(1) The defendant is a professional criminal who has knowingly devoted
the defendant‟s life to criminal acts as a major source of livelihood;

(2) The defendant is an offender whose record of criminal activity is
extensive;

(3) The defendant is a dangerous mentally abnormal person so declared
by a competent psychiatrist who concludes as a result of an
investigation prior to sentencing that the defendant‟s criminal
conduct has been characterized by a pattern of repetitive or
compulsive behavior with heedless indifference to consequences;

(4) The defendant is a dangerous offender whose behavior indicates
little or no regard for human life and no hesitation about committing
a crime in which the risk to human life is high;

(5) The defendant is convicted of two (2) or more statutory offenses
involving sexual abuse of a minor with consideration of the
aggravating circumstances arising from the relationship between the
defendant and victim or victims, the time span of defendant‟s
undetected sexual activity, the nature and scope of the sexual acts
and the extent of the residual, physical and mental damage to the
victim or victims;

(6) The defendant is sentenced for an offense committed while on
probation; or

(7) The defendant is sentenced for criminal contempt.

“Any one of these grounds is a sufficient basis for the imposition of consecutive
sentences.” Pollard, 432 S.W.3d at 862 (citing State v. Dickson, 413 S.W.3d 735, 748
(Tenn. 2013)). “So long as a trial court properly articulates reasons for ordering
consecutive sentences, thereby providing a basis for meaningful appellate review, the
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sentences will be presumed reasonable and, absent an abuse of discretion, upheld on
appeal.” Id.

Of the seven statutory factors, the trial court in this case found the following to
apply:

(1) The defendant is a professional criminal who has knowingly devoted
the defendant‟s life to criminal acts as a major source of livelihood;
[and]

(2) The defendant is an offender whose record of criminal activity is
extensive[.]

The trial court applied both factors but gave greater emphasis to factor (2). In
considering the first factor, the trial court concluded that Defendant‟s extensive criminal
record spanned twenty years and that he had little proof of income during that time. The
trial court considered the pay stub that Defendant introduced but stated that the income
was for a brief time. In considering the second factor, the trial court again noted the
numerous misdemeanor convictions and the felony drug conviction that Defendant had
obtained over a twenty-year span. As such, the court provided adequate reasons for
aligning Defendant‟s sentences consecutively and, therefore, did not abuse its discretion.
Defendant is not entitled to relief.

III. Merger

The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, provides
that “[n]o person shall . . . be subject for the same offense to be twice put in jeopardy of
life or limb.” U.S. Const. amend. V. Courts have interpreted the Double Jeopardy
Clause as providing three distinct protections: “(1) protection against a second
prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012)
(citations omitted). Whether multiple convictions violate the protection against double
jeopardy is a mixed question of law and fact, which this Court will review de novo
without any presumption of correctness. State v. Smith, 436 S.W.3d 751, 766 (Tenn.
2014) (citing State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)).

Defendant argues that he received multiple punishments for the same offense. The
Tennessee Supreme Court has divided such claims into two categories: (1) unit-of-
prosecution claims, “when a defendant who has been convicted of multiple violations of
the same statute asserts that the multiple convictions are for the same offense”; and (2)
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multiple description claims, “when a defendant who has been convicted of multiple
criminal offenses under different statutes alleges that the statutes punish the same
offense.” Id. at 767 (citing Watkins, 362 S.W.3d at 543-44) (emphasis in original). In
this case, Defendant was convicted under a single statute, Tennessee Code Annotated
section 39-17-417(a)(4), for possession with intent to sell or deliver .5 grams or more of
cocaine and possession with intent to sell or deliver .5 grams or more of cocaine base.
Therefore, his challenge is a unit-of-prosecution claim.

In Watkins, our supreme court stated:

When addressing unit-of-prosecution claims, courts must determine “what
the legislature intended to be a single unit of conduct for purposes of a
single conviction and punishment.” Courts apply the “rule of lenity” when
resolving unit-of-prosecution claims, meaning that any ambiguity in
defining the unit of conduct for prosecution is resolved against the
conclusion that the legislature intended to authorize multiple units of
prosecution.

362 S.W.3d at 543-44 (citations omitted). “The legislature has the power to create
multiple „units of prosecution‟ within a single statutory offense, but it must do so clearly
and without ambiguity.” State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997). “As for
criminal offenses in Tennessee, statutes are to be construed „according to the fair import
of their terms, including reference to judicial decisions and common law interpretations,
to promote justice, and effect the objectives of the criminal code.‟” Id. (quoting T.C.A. §
39-11-104).

Therefore, the decisive determination is whether the legislature intended to create
two units of prosecution for the possession of powder cocaine and possession of cocaine
base. The legislature created criminal accountability for a defendant to knowingly
“[p]ossess a controlled substance with intent to manufacture, deliver[,] or sell the
controlled substance.” T.C.A. § 39-17-417(a)(4). The Tennessee Sentencing
Commission Comments to section 39-17-417 state, “The commission wished to make it
clear that each of these acts was a separate offense and therefore listed the manufacture,
delivery, sale or possession with intent to manufacture, deliver or sell each as a separate
subsection.” In subsection (c)(1) of the same statute, the legislature stated that the
offense is “a Class B felony if the amount involved is point five (0.5) grams or more of
any substance containing cocaine.” T.C.A. § 39-17-417(c)(1) (emphasis added). There
is no language in subsections (a)(4) or (c)(1) indicating that the legislature intended to
create more than one unit of prosecution for possession of cocaine based on its form. In
fact, subsection (c)(1) seems to ensure that that if cocaine is combined with any other
substance, as is done in the production of crack cocaine, the total weight can be
considered to determine the class of the offense. Therefore, we find no clear intent on the
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part of the legislature to create separate units of prosecution for the possession of powder
cocaine and the possession of cocaine base. Furthermore, even if there was some
ambiguity, our supreme court stated in Watkins that “[c]ourts apply the „rule of lenity‟
when resolving unit-of-prosecution claims, meaning that any ambiguity in defining the
unit of conduct for prosecution is resolved against the conclusion that the legislature
intended to authorize multiple units of prosecution.” Id. at 543-44 (citations omitted).
Even assuming some ambiguity, application of the rule of lenity dictates that there is only
one unit of prosecution for possession with intent to sell or deliver .5 grams or more of
cocaine and cocaine base. As such, Defendant‟s multiple convictions violate the
principles of double jeopardy.

We, therefore, merge Defendant‟s convictions for possession with intent to sell .5
grams or more of cocaine and possession with intent to sell .5 grams or more of cocaine
base. After merger, Defendant stands convicted of possession with intent to sell .5 grams
or more of a Schedule II substance and possession or casual exchange of marijuana.
Because Defendant was already sentenced to the maximum possible sentence within his
sentencing range, we need not remand the case for a new sentencing hearing.
Defendant‟s remaining sentences will be 12 years for the cocaine charge with a
consecutive 11 months and 29 days for the marijuana charge.

CONCLUSION

Based on the parties‟ briefs, the record, and the applicable law, we merge
Defendant‟s convictions for possession with intent to sell .5 grams or more of cocaine
and possession with intent to sell .5 grams or more of cocaine base but affirm the
judgments of the trial court in all other respects.

_________________________________
TIMOTHY L. EASTER, JUDGE

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