State of Tennessee v. George Washington Matthews

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2016

STATE OF TENNESSEE v. GEORGE WASHINGTON MATTHEWS

Appeal from the Circuit Court for Lake County
No. 13-CR-9837 R. Lee Moore, Jr., Judge
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No. W2015-02500-CCA-R3-CD - Filed January 24, 2017
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The defendant, George Washington Matthews, was indicted for one count of possession
of over one-half ounce of marijuana with intent to sell or deliver and two counts of
attempting to introduce contraband into a penal facility. After trial, a jury found the
defendant guilty on all counts. The defendant received a total effective sentence of
twelve years. On appeal, the defendant argues the evidence was insufficient to support
his convictions; the trial court erred when it allowed testimony regarding the defendant‟s
recent incarceration; and his indictment was defective. After review, we affirm the
judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and CAMILLE R. MCMULLEN, JJ., joined.

Hal J. Boyd, Tiptonville, Tennessee, for the appellant, George Washington Matthews.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Phil Bivens, District Attorney General; and Lance Webb, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

Just after midnight in the early morning hours of February 17, 2013, Deputy
Thomas Hollowell was patrolling Proctor City Road on the eastern boundary of the
Northwest Correctional Center (“the prison”) in Lake County, Tennessee. According to
Deputy Hollowell, this road and a nearby field are known avenues for smuggling
contraband into the prison. Due to the contraband problem, Deputy Hollowell frequently
patrolled the area. During his patrol that morning, Deputy Hollowell discovered the
defendant and another individual lying in a ditch alongside Proctor City Road. The ditch
is located approximately 100 to 150 yards from the eastern boundary of the prison. If
followed, the ditch leads to the prison greenhouse and firing range. Deputy Hollowell
knew from personal experience that the firing range was a “hotspot” for smuggling
contraband into the prison facility.

After spotting the defendant and his co-defendant, Deputy Hollowell stopped and
exited his vehicle. Deputy Hollowell also noticed two large duffel bags lying in the ditch
approximately one to two feet from the defendant. After detaining the defendant and the
co-defendant, Deputy Hollowell inspected the duffel bags and discovered they contained
forty-four individually packaged one-pound bags of tobacco; twenty-three cell phones
with batteries and chargers; and approximately 390 grams of marijuana in thirteen
individual packages. Deputy Hollowell did not see the defendant or his co-defendant
carrying or handling the duffel bags. At trial, Deputy Hollowell testified there were no
fingerprints or other physical evidence on the bags or their contents. He also
acknowledged there were no receipts linking the defendants to the cell phones found
inside the two duffel bags. Deputy Hollowell testified that Northwest Correctional
Center is a penal institution where prisoners are quartered.

Brock Sain, a special agent for the Tennessee Bureau of Investigation, testified as
an expert witness for the State. As a special agent and forensic scientist, his duties
include testing and identifying controlled substances brought to the laboratory by law
enforcement. Agent Sain was tasked with identifying the packages of plant material
found in the defendant‟s duffel bags by Deputy Hollowell. Upon visual inspection,
Agent Sain identified the plant material in the packages as marijuana. Agent Sain
removed and unwrapped one of the individual packages and weighed it. The weight of
the plant material from that package, without the wrapper, was approximately twenty-
nine grams. Agent Sain explained there are approximately twenty-eight grams in an
ounce, and approximately fourteen grams in one-half ounce. Agent Sain also weighed
the other packages together. The total weight of the packages was approximately 390
grams, or fourteen ounces. Using a sample of the material, Agent Sain conducted a
microscopic and modified Duquenois-Levine color test. Both tests confirmed the plant
material was in fact marijuana. He then prepared a report of his findings, which was
entered into evidence at trial.

Lieutenant David Ables, an investigator at the prison, testified the prison is a
penal facility where approximately 2400 inmates are housed. The prison has a history of
problems with contraband; the biggest contraband problems being illegal drugs, cell
phones, and tobacco. The prison consists of some areas that are enclosed behind walls
and razor wire and other areas that are simply behind a fence. Inmates who earn a lower
security classification are allowed to go outside the prison walls and perform
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maintenance on the prison grounds. Lieutenant Ables explained the Proctor City Road
area, where the defendant was found, is a well-known drop site for smuggling illegal
contraband into the prison. The portion of the ditch where Deputy Hollowell located the
defendant is not accessible to inmates. Someone attempting to smuggle contraband into
the prison would need to get closer to the prison property before inmates would actually
be able to access the contraband. Lieutenant Ables explained that other popular drop
spots for contraband include the prison greenhouse and firing range. The defendant was
found about one half to three quarters of a mile away from the prison‟s greenhouse and
firing range. There is also an area about 200 yards from where the defendant was found,
near a “No Trespassing” sign, which is also accessible to inmates. Finally, Lieutenant
Ables stated the defendant had been an inmate of the prison and was released
approximately two weeks prior to this incident.

Lieutenant Joseph Vernon of the Lake County Sheriff‟s Office testified there had
been a number of contraband arrests made in the Proctor City Road area. On February
17, 2013, Lieutenant Vernon received a phone call from Deputy Hollowell informing him
that he had arrested two individuals with two large duffel bags containing contraband.
Based on his extensive career in law enforcement, including twenty-two years with the
Department of Correction, Lieutenant Vernon was familiar with the street value of
marijuana, as well as its value inside prison facilities. He explained thirteen to fourteen
ounces of marijuana, depending on the quality, would be worth at least between $1300
and $1400 on the street. That same amount of marijuana, depending on the prevalence of
marijuana within the specific facility, would be worth at least $20,000 or more inside a
prison. Cell phones were also a very valuable commodity in most prisons. Lieutenant
Vernon testified he knew of instances where inmates paid more than $500 dollars to have
a cell phone smuggled into prison. Lieutenant Vernon testified he worked at Northwest
Correctional Center for fifteen years before moving to internal affairs. He knew the area
along Proctor City Road where the defendant was found. He confirmed it is a popular
location for smuggling contraband into the prison.

The State rested its case after calling Deputy Hollowell, Special Agent Sain,
Lieutenant Ables, and Lieutenant Vernon. Following a jury-out hearing, the defense
rested without presenting any proof. The jury found the defendant guilty of the
following: possession of marijuana over one-half ounce with intent to sell or deliver
(Count 1); attempt to introduce contraband, marijuana, into a penal institution (Count 2);
and attempt to introduce contraband, cell phones, into a penal institution (Count 3). On
March 26, 2015, the trial court sentenced the defendant to six years under Count 1,
twelve years under Count 2, and eleven months and twenty-nine days under Count 3.
The trial court ordered all sentences to run concurrently, for a total effective sentence of
twelve years.

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 On April 22, 2015, the defendant filed a timely motion for new trial alleging the
evidence was insufficient to support his convictions, numerous errors on the part of the
trial court, and deficiencies in the indictments and jury verdict. On November 23, 2013,
the trial court heard argument on the defendant‟s motion for new trial. The trial court
denied the defendant‟s motion, and this timely appeal followed. On appeal, the defendant
argues: the evidence presented at trial is insufficient to support his convictions; the trial
court erred in allowing testimony regarding the defendant‟s incarceration at Northwest
Correctional Complex; the trial court erred in excluding statements made by the
defendant at the time of arrest; and the indictments in Count 1 and Count 2 are defective.
The State argues the evidence is sufficient to support the defendant‟s convictions, the trial
court did not err by allowing testimony regarding the defendant‟s recent incarceration,
and the indictments are not defective. Following a thorough review of the record and
briefs, we affirm the judgments of the trial court.

Analysis

I. Sufficiency of The Evidence

When a defendant challenges the sufficiency of the evidence on appeal, the
relevant question for the reviewing court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Evans, 838 S.W.2d
185, 190-91 (Tenn. 1992) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). All
questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Papas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). Our Supreme Court has stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witness 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. 1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
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convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “„is the same whether the conviction is based upon direct or
circumstantial evidence.‟” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses‟ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence. Dorantes, 331 S.W.3d at
379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). The extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Id. This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

The defendant argues the evidence was insufficient to convict him of possession of
a controlled substance, marijuana, with intent to sell or deliver, because there was no
evidence that the defendant physically handled the duffel bags or that he had the power
and intention to exercise dominion and control over the drugs. He also argues the
evidence was insufficient to support his convictions for attempting to introduce
contraband into a penal facility. Specifically, he argues there was no evidence he
possessed the duffel bags and, therefore, acting with the kind of culpability necessary to
commit the completed crime, and there was no evidence of acts in furtherance of the
attempted crime. After viewing the evidence in the light most favorable to the State, we
disagree with the defendant.

A. Count One – Possession of A Controlled Substance, Marijuana, With Intent
to Sell or Deliver.

It is an offense for a defendant to knowingly possess a controlled substance with
intent to manufacture, deliver, or sell the controlled substance. Tenn. Code Ann. § 39-
17-417(a)(4). A violation of Tennessee Code Annotated section 39-17-417(a)(4)
involving more than one-half ounce but less than ten pounds of marijuana is punishable
as a Class E felony. Tenn. Code Ann. § 39-17-417(g)(1). “Before a defendant may be
convicted of possessing a controlled substance with intent to manufacture, distribute, or
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sell, the State must prove beyond a reasonable doubt the substance was a controlled
substance and the defendant possessed the substance with the intent to manufacture,
deliver or sell the substance.” State v. Cooper, 736 S.W.2d 125, 128 (Tenn. Crim. App.
1987). “It may be inferred from the amount of a controlled substance or substances
possessed by an offender, along with other relevant facts surrounding the arrest, that the
controlled substances were possessed with the purpose of selling or otherwise
dispensing.” Id.

The act of possession may be actual or constructive. Id. at 129. “In order for a
person to „constructively possess‟ a drug, that person must have the „the power and
intention at a given time to exercise dominion and control over . . . [the drugs] either
directly or through others.‟” Id. (quoting State v. Williams, 623 S.W.2d 121, 125 (Tenn.
Crim. App. 1981)). In other words, “constructive possession is the ability to reduce an
object to actual possession.” Id. Constructive possession depends on the totality of the
circumstances in each case and may be established through circumstantial evidence.
State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013); see also Tenn. Code Ann. § 39-17-
419 (stating that possession may be inferred from “relevant facts surrounding the arrest”).
However, the presence of a person in an area where drugs are found is not, by itself,
sufficient to support of finding of constructive possession. Id.

When viewing the facts in the light most favorable to the State, the evidence
sufficiently supports the defendant‟s conviction for possession of marijuana with intent to
sell or deliver. The proof at trial revealed the defendant and his codefendant were
discovered lying in a ditch on the side of the road, just after midnight, on a cold February
morning. Proctor City Road, the road where Deputy Hollowell found the defendant, is a
rural road adjacent to a prison. The area is well known by prison officials and law
enforcement as a “hotspot” for smuggling illegal contraband. The ditch where the
defendant was hiding leads directly to the prison garden and firing range, areas also
known to be “hotspots” for contraband. Two large duffel bags containing cell phones,
cell phone charges, forty-four pounds of tobacco, and a leafy material later determined by
Agent Sain to be 390 grams of marijuana valued at approximately $30,000 were found
one to two feet from the defendant.

The facts in this case show more than mere presence at a location where drugs
were found. See State v. Bigsby, 40 S.W.3d 87, 91 (Tenn. Crim. App. 2000) (finding
each case to be fact specific, so the defendant‟s presence in a location where narcotics are
sold in addition to other incriminating facts can be sufficient to establish criminal
liability). Based on this evidence, a jury could rationally conclude the defendant
possessed marijuana with the intent to deliver or sell it. The defendant is not entitled to
relief on this issue.

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B. Counts Two and Three – Attempt to Introduce Contraband Into A Penal Facility

Tennessee Code Annotated section 39-16-201 (b)(1) and (3) provides:

(b) It is unlawful for any person to:
(1) Knowingly and with unlawful intent take, send or otherwise cause to be
taken into any penal institution where prisoners are quartered or under
custodial supervision any . . . controlled substances or controlled substance
analogues . . .
(3) Knowingly and with unlawful intent take, send or otherwise cause to be
taken into any penal institution where prisoners are quartered or under
custodial supervision any telecommunication device.

Tenn. Code Ann. § 39-16-201 (b)(1), (3). Telecommunication device is defined under
the statute to include cellular phones. Tenn. Code Ann. § 39-16-201 (a).

Criminal attempt occurs when a person:

[a]cts with the intent to complete a course of action or cause a result that
would constitute the offense, under the circumstances surrounding the
conduct as the person believes them to be, and the conduct constitutes a
substantial step toward the commission of the offense.

Tenn. Code Ann. § 39-12-101 (a)(3). Therefore, “a defendant who acts with the required
culpable mental state „may be convicted of criminal attempt based on conduct
constituting a substantial step toward the commission of the offense.‟” State v. Davis,
354 S.W.3d 718, 729 (Tenn. 2011) (quoting State v. Richardson, 251 S.W.3d 438, 443
(Tenn. 2008)). Our Supreme Court has held:

[W]hen an actor possesses materials to be used in the commission of a
crime, at or near the scene of the crime, and where the possession of those
materials can serve no lawful purpose of the actor under the circumstances,
the jury is entitled, but not required, to find that the actor has taken a
“substantial step” toward the commission of the crime if such action is
strongly corroborative of the actor‟s overall criminal purpose.

State v. Reeves, 916 S.W.2d 909, 914 (Tenn. 1996).

As noted above, the defendant was found lying in a ditch on the side of a road
within feet of two large duffel bags filled with illegal contraband. The ditch where
Deputy Hollowell discovered the defendant is close to the eastern boundary of Northwest
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Correctional Center. Deputy Hollowell found the defendant on a very cold February
morning just after midnight. The prison had a history of problems with contraband being
smuggled onto prison grounds. The defendant had been released from the same penal
facility two weeks prior to his arrest, and the area where he was found is known to be a
“hotspot” for smuggling contraband into the prison. Deputy Hollowell and Lieutenant
Ables both testified that the prison was a penal facility that housed around 2400 inmates.

Viewing the evidence in the light most favorable to the prosecution, the evidence
was sufficient to support the defendant‟s conviction for attempt to introduce contraband
into a penal facility. Again, the defendant is not entitled to relief on this issue.

II. Prior Incarceration of the Defendant

The defendant argues the trial court erred by allowing Lieutenant Ables to testify
that the defendant had been incarcerated at Northwest Correctional Center and released
approximately two weeks prior to his arrest on Proctor City Road. The defendant
contends Lieutenant Ables‟ testimony was equivalent to evidence of a prior crime or bad
act and should have been excluded under Tennessee Rule of Evidence 404(b). The State
responds that the defendant‟s recent incarceration was relevant to the defendant‟s intent
to introduce contraband into a correctional facility, so the trial court properly allowed the
testimony. We agree the trial court did not abuse its discretion in allowing the testimony.

Tennessee Rule of Evidence 404(b) generally prohibits “[e]vidence of other
crimes, wrongs, or acts . . . to prove the character of a person in order to show action in
conformity with the character trait.” State v. Jones, 450 S.W.3d 866, 891 (Tenn. 2014).
Rule 404(b) allows such evidence in limited circumstances for purposes other than
proving action in conformity with a character trait. Id. The rule sets out certain
procedural requirements the trial court must follow:

(1) The court upon request must hold a hearing outside the jury‟s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the
record the material issue, the ruling, and the reasons for admitting the
evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear
and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.

Tenn. R. Evid. 404(b)(1)-(4). The comments to Rule 404(b) provide that evidence of
other crimes, wrongs, or acts should be excluded unless relevant to an issue other than the
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character of the defendant, such as identity, motive, intent, or absence of mistake. Jones,
450 S.W.3d at 891 see also Tenn. R. Evid. 404, Advisory Commission cmt.

Trial courts are encouraged to take a “restrictive approach [to] [Rule] 404(b) . . .
because „other act‟ evidence caries a significant potential for unfairly influencing a jury.”
State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008). In Dotson, our Supreme Court
explained the policy in favor of exclusion:

The rationale behind the general rule is that admission of other wrongs
carries with it the inherent risk of the jury convicting a defendant of a crime
based upon his or her bad character or propensity to commit a crime, rather
than the strength of the proof of guilt on the specific charge . . . As this
Court has consistently cautioned, the jury should not “be tempted to convict
based upon a defendant‟s propensity to commit crimes rather than . . .
evidence relating to the charged offense.”

Id. Provided the trial court substantially complied with the procedure of Rule 404(b), the
trial court‟s decision to admit or exclude evidence will not be overturned on appeal
absent an abuse of discretion. Jones, 450 S.W.3d at 891. However, if the trial court
failed to substantially comply with the strict procedural requirements of Rule 404(b), no
deference is given to the trial court‟s decision to admit or exclude evidence. State v.
Dubose, 953 S.W.2d 649, 652 (Tenn. 1997). Where the trial court fails to follow the
procedural requirements of Rule 404(b), this Court will determine admissibility based on
the evidence presented at the jury out hearing. Id.

In this case, prior to trial the defendant filed a motion in limine requesting the trial
court to exclude any reference to his prior incarceration at Northwest Correctional Center
or his prior convictions, and following a hearing, the trial court granted the motion.1 In
its Order Granting Motion in Limine, the trial court ruled:

This cause came to be heard on February 24, 2014, upon the motion
of the [d]efendant, George Washington Matthews, for an order prohibiting
the State‟s use of prior criminal acts to show that the [d]efendant had been
incarcerated at the Northwest Tennessee Correctional Complex, or to show
the [d]efendant‟s bad character or propensity to commit a crime. After
consideration of the motion and the statements of counsel, the Motion was

1
The parties failed to include a transcript from the February 24, 2014, hearing in the
record, so the precise arguments of the parties and the statements of the trial court are unknown.
While it would have been helpful for the transcript to have been included with the record, it was
not necessary for the purpose of this Court‟s ruling.
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 granted, as the probative value of the evidence is substantially outweighed
by the danger of unfair prejudice.

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that
the [d]efendant‟s Motion in Limine to Exclude Evidence of Defendant‟s
Prior Criminal History to Show Confinement is GRANTED.

Prior to opening statements, the State re-raised the defendant‟s motion in limine
and asked for clarification of the trial court‟s order, stating:

[The defendant] early on filed a motion to keep out the – as I understood
the motion – to prohibit the State from referring to [the defendant‟s] prior
criminal history, he‟s a Career Offender, as a way of showing that [the
defendant] had been an inmate at Northwest Corrections. And the way I
read the order was that I couldn‟t do that. But I did not read – I don‟t
remember that being discussed that there wasn‟t any way we could
introduce the fact that he had been an inmate at Northwest only fifteen days
before this happened.

And I do intend to introduce that testimony if the Court will allow it
because I believe it‟s incredibly relevant to why he was there that night –
that morning. And there are cases and it is – it is somewhat prejudicial, all
evidence is prejudicial. If it‟s not it‟s not relevant. But in order to exclude
it you would have to find that the prejudice substantially outweighs the
relevance.

In response, the defendant argued that if the State calls a witness to testify
regarding the defendant‟s prior incarceration, it will be necessary to lay a foundation
regarding the defendant‟s prison stay. The defendant cautioned that the State may
attempt to introduce evidence regarding the defendant‟s familiarity with how contraband
is moved in and out of the prison, and his administrative record may become an issue.
Further, the testimony would implicate the reason for the defendant‟s incarceration and
the length of his incarceration. According to the defendant, at that point, the evidence
would become unfairly prejudicial.

The trial court then ruled:

All right, gentleman, I think that is certainly relevant, a relevant
issue and it may have some, be prejudicial in a way, but its probative value
certainly outweighs the prejudicial effect. Now, there‟s some limitations on
what you‟re gonna do now[.]
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 ...

[Y]ou can ask [Lieutenant Ables] if [he] can identify George
Washington Matthews but then you – then you simply will ask him if he
was an inmate at . . . a particular time and when he was discharged.

The State complied with the trial court‟s order. With respect to the defendant‟s
prior incarceration, the State asked only, “Do you have personal knowledge of whether
the defendant, the gentleman seated over here, Mr. George Washington Matthews, was an
inmate shortly before February 17 of 2013 at the Northwest Correctional Facility?”
Lieutenant Ables responded, “He was released from Northwest on February 2nd, 2013.”
The parties did not present any evidence as to the reason for the defendant‟s prior
incarceration or the length of his prior incarceration.

Here, the trial court substantially complied with the requirements of Rule 404(b).
The trial court held a hearing on the defendant‟s motion in limine prior to trial and ruled
that the State could not use the defendant‟s criminal record and prior incarceration to
show the defendant‟s bad character or propensity to commit crime. Outside the presence
of the jury, the State later asked for clarification as to whether it could ask Lieutenant
Ables if the defendant had been released from the prison shortly before his arrest in this
case. After considering the arguments of the parties and the potential testimony of
Lieutenant Ables, the trial court found the potential testimony to be relevant and balanced
the probative value of the testimony against its prejudicial effect. The trial court ruled
that with limitation the probative value of the evidence outweighs its prejudicial effect
and allowed the State to ask about the defendant‟s prior incarceration and date of release
but not the reason for and length of the defendant‟s incarceration. The defendant
conceded he had been a prior inmate at the prison and was released merely fifteen days
prior to his arrest, so it was not necessary for the trial court to find clear and convincing
proof of this. While the trial court could have better articulated the material issue other
than conduct conforming to the defendant‟s propensity towards criminal behavior, the
record shows the trial court substantially complied with the requirements of Rule 404(b),
and we review the trial court‟s admission of Lieutenant Ables‟ testimony for an abuse of
discretion.

At trial, the State had to prove beyond a reasonable doubt that the defendant
intended to knowingly take the duffel bags containing contraband into the prison and
took a substantial step towards doing so. The defendant contested the element of intent at
trial and instead took the position he and his codefendant happened to lie down in the
ditch on Proctor City Road in the same spot the two duffel bags of contraband were
located, but the bags did not belong to them. The trial court prohibited the State from
presenting evidence of the defendant‟s criminal history and most recent incarceration as
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propensity evidence, and instead allowed limited testimony regarding the defendant‟s
release from the prison merely fifteen days prior to his attempt to sneak contraband into
the prison. This evidence was relevant to the jury‟s consideration of the defendant‟s
intent. The trial court had a reason to admit Lieutenant Ables‟ limited testimony other
than to show propensity. Further, the trial court carefully limited the testimony to be
offered, and the jury did not know the reason for the defendant‟s incarceration, the length
of the defendant‟s incarceration, or anything about the defendant‟s behavior while
incarcerated. The trial court did not err in permitting Lieutenant Ables‟ testimony
regarding the defendant‟s prior incarceration. See State v. March, 497 S.W.3d 52, 81
(Tenn. Ct. Crim. 2010). Moreover, any shortcomings in the details of the trial court‟s
ruling are harmless due to the overwhelming evidence of the defendant‟s guilty. The
defendant is not entitled to relief on this issue.

III. The Indictments

1. Count One – Possession With Intent to Sell or Deliver A Controlled
Substance, Marijuana.

The defendant argues his indictment for possession with intent to sell or deliver
marijuana included a charge for two offenses, sale and delivery, in a single count, thereby
depriving him of a unanimous verdict. The State contends the indictment charges only
one offense, “possession with the intent” to sell or deliver. We agree with the State.

Tennessee Code Annotated section 39-17-417 sets forth four distinct criminal
offenses: (1) manufacturing a controlled substance, (2) delivering a controlled substance,
(3) selling a controlled substance, and (4) possessing a controlled substance with the
intent to manufacture, deliver, or sell it. Tenn. Code Ann. § 39-17-417(a)(1)-(4); see also
State v. Greg Harris, No. E2003-02834-CCA-R3-CD, 2005 WL 419082 at *11 (Tenn.
Crim. App. Feb. 23, 2005) (noting “the legislature intended the manufacture, delivery,
sale, and possession of controlled substances to be separate substantive offenses.”).
Count One of the indictment charged that the defendant “knowingly, unlawfully, and
feloniously did possess with intent to sell or deliver a controlled substance, namely,
Marijuana, in an amount in excess of 1/2 ounce,” an offense codified under Tennessee
Code Annotated section 39-17-417(a)(4). Possession of a controlled substance with
intent to sell or deliver is a single, independent offense with its own subpart, so it is
properly charged in a single count. See Tenn. Code Ann. § 39-17-417(a)(4); see also
Ricardo Davidson v. Chapman, No. M2014-00565-CCA-R3-HC, 2014 WL 7011499 at
*3 (Tenn. Crim. App. Dec. 12, 2014). Accordingly, the defendant is not entitled to relief
on this issue.

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 2. Counts Two and Three – Introduction of Contraband into A Penal Facility

The defendant argues that counts two and three of his indictment were insufficient
to put him on notice of the offenses charged and to protect him against double jeopardy.
The State responds that the language of the indictment plainly stated the offenses the
defendant was charged with and was sufficient to confer jurisdiction on the court. We
agree with the State.

Pursuant to the United States Constitution and the Constitution of the State of
Tennessee, “an indictment must provide the accused with the „nature and cause of the
accusation‟ being made against him/her.” State v. Smith, 492 S.W.3d 224, 239 (Tenn.
2016) (citing U.S. Const. amend. VI; Tenn. Const. art. I, § 9). “An indictment must
present facts in such a way that „enable[s] a person of common understanding to know
what is intended.‟” Smith, 492 S.W.3d at 239; see Tenn. Code Ann. § 40-13-202. Our
Supreme Court has held that “an indictment is valid if it provides sufficient information
(1) to enable the accused to know the accusation to which answer is required, (2) to
furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the
accused from double jeopardy.” State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991). “[A]n
indictment meets statutory and constitutional requirements if it „achieve[s] the overriding
purpose of [providing] notice to the accused.‟” Smith, 492 S.W.3d at 239 (quoting State
v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997)).

Count Two and Count Three of his indictment charged the defendant with
attempting to violate Tennessee Code Annotated section 39-16-201, which prohibits the
introduction of contraband into a penal facility. A person commits criminal attempt when
acting “with the intent to complete a course of action or cause a result that would
constitute the offense . . . and the conduct constitutes a substantial step toward the
commission of the offense.” Therefore, the State was required to prove two elements:
the culpability required for the attempted crime; and an act or acts in furtherance of the
completed crime. See State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011).

The defendant‟s indictment states in pertinent part:

COUNT TWO

The GRAND JURORS of LAKE COUNTY, TENNESSEE, duly
empaneled and sworn upon their oath, present that GEORGE
WASHINGTON MATTHEWS . . . on or about February 17, 2013, in
LAKE County, Tennessee, and before the finding of this indictment,
unlawfully and knowingly, with unlawful intent, did attempt to take a
controlled substance, to-wit: Marijuana, a Schedule VI drug, into the
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 Northwest Correctional Complex where prisoners are quartered in violation
of TCA § 39-16-201. This is a Class D Felony and is against the peace and
dignity of the State of Tennessee.

COUNT THREE

THE GRAND JURORS of LAKE COUNTY, TENNESSEE, duly
empaneled and sworn upon their oath, present that GEORGE
WASHINGTON MATTHEWS . . . on or about February 17, 2013, in
LAKE County, Tennessee, and before the finding of this indictment,
unlawfully and knowingly, with unlawful intent, did attempt to take
contraband, to-wit: cell phones, into the Northwest Correctional Complex
where prisoners are quartered, in violation of TCA § 39-16-201. This is a
Class A Misdemeanor and is against the peace and dignity of the State of
Tennessee.

While Count Two and Count Three do not reference the attempt statute, the
indictment satisfies the requirements of the United States Constitution, the Tennessee
Constitution, and Tennessee Code Annotated section 40-13-202. The defendant was on
notice that he was charged with the knowing attempt to introduce illegal contraband into
Northwest Correctional Complex. The indictment is also sufficient to place the trial court
on notice that a judgment and sentence for attempted introduction of contraband into a
penal facility would be proper upon conviction. Lastly, the indictment provides the
defendant protection from double jeopardy by expressly stating the date and location of
the offenses with particularity. Although the language used in the indictment “did
attempt” is a general description, it charges a violation covered by the criminal attempt
statute and was sufficient to place the defendant on notice of the accused crime, to confer
jurisdiction on the trial court, and to protect the defendant against double jeopardy. Wyatt
v. State, 24 S.W.3d 319, 325 (Tenn. 2000) (citing Hill, 954 S.W.2d at 727)). The
defendant is not entitled to relief on this issue.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.

____________________________________
J. ROSS DYER, JUDGE

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