### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE Assigned on Briefs July 26, 2016

STATE OF TENNESSEE v. MICHAEL DEWAYNE HALL

Appeal from the Circuit Court for Blount County
No s

. C0021744, C0021745 Tammy M. Harrington , Judge

No. E2015

- 02173

- CCA

- R3

- CD

– Filed May 4, 2017

The Defendant, Michael Dewayne Hall, wa s convicted by a Blount County J ury of sale or delivery of cocaine under 0.5 grams in the drug

- free zone of a public park , a Class C felony, and sale or delivery of cocaine over 0.5 grams in the drug

- free zone of a public park , a Class B felony. As a career offender, he received an effective sentence of thirty years in the Tennes see Department of Correction. On appeal, the Defendant claims: (1)
the trial cou rt improperly admitted a map in to evidence at trial; (2) the trial court improperly denied his motion to dismiss the indictment; (3) the evidence is insufficient to
sustain his conviction s ; and (4) the trial court improperly acted as thirteenth juror to approve the jury’s verdict. W e conclude that the trial court properly admitted the map, denied the motion to dismiss, and acted as thirteenth juror , and that the evidence is sufficient to sustain the Defendant’s convictions. However, after a plain error review, the duplicitous nature of the Defendant’s convictions for “sale or delivery” of cocaine
constitute s reversible error and violate s the Defendant’s fundamental and substantial right to a unanimous jury ve rdict. Accordingly, we reverse, vacate, and dismiss t he Defendant’s convictions

.

Tenn. R. App. P. 3 Appeal as of Right; Judgment s of the Circuit Court Reversed , Vacated and Dismissed

C AMILLE R. M C M ULLEN
, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL

, P.J.

, and R OBERT H. M ONTGOMERY

, J R
., J. , joined.

Ashley Morris Bentl ey , Maryville , Tennessee, for the Defendant

- A ppellant, Michael Dewayne Hall.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson

, Senior
Counsel ; Michael W. Flynn , District At torney General; and Matthew L. Dunn , Assistant District Attorney General, for the Appellee, State of Tennessee.- 2

- OPINION

This appeal stems from two controlled drug purchases completed by an informant working for the Fifth Judicial Drug Task Force of the Blount County Sheriff’s Office.
The Defendant was indicted by the Blount County Grand Jury for his involvement in both

pur chases

, which occurred within a drug

- free zone. A jury trial began on May 15, 2014, at which time the following evidence was adduced.

Trial. Officer Rusty Aycocke testified that a confidential informant (“CI”) was used to conduct two controlled drug purchases from the Defendant on September 10, 2012, and December 19, 2012

. P rior to each purchase, Officer Aycocke searched the CI
and his vehicle, provided him with mark ed money to purchase drugs, and equipped him with a recording device

. Officer Aycocke followed the CI and observed him enter a house on 270 East Lincoln

. After the CI arrived at the house, th e Defendant left and then
returned a short time later

. Officer Aycocke believed that the Defendant left the house
for his supply of crack cocaine, and then returned to provide the drugs to the CI

. After
the purchase was completed, the CI met Officer Aycocke at a prea rranged location and gave him the crack cocaine that he purchased from the Defendant

. Officer Aycocke
testified that the CI obtained 0.84 grams of crack cocaine from the Defendant during the September purchase, 0.31 grams of crack cocaine during the December purchase

, and
that both samples tested positive for cocaine during a field test.

O fficer Aycocke later viewed two videos of the CI during each controlled purchase , which w ere admitted as exhibit s at trial . Officer Aycocke also identified multiple still photographs taken from the videos , including: a photograph of the Defendant’s fa ce, a photograph of the Defendant’s reaching hand , a photograph of the
Defendant ’s and the CI ’s hands together, a photograph of a hand holding a crack cocaine rock, and a photograph showing a crack cocaine rock on top of a dress er in the Defendant’s bedroom.

On cross

- examination, Officer Aycocke stated that he had worked with this particular CI o n over thirty controlled drug purchases and that the CI received $100 fo r his participation in each purchase. Officer Aycocke testified that the Defendan t was arrested in December 2012, following the second controlled drug purchase, and that none
of the marked bills or crack cocaine were on the Defendant ’s person at that time . Officer Aycocke acknowledged that he was unable to follow the Defendant when he left the residence during both the September and December purchases to determine where he

went to obtain the drugs

.

The CI testified that he had worked with the Fifth Judicial Drug Task Force for approximately two years and had known the Defendant for approximately three years.- 3

-

For each drug purchase , h e initiated contact with the Defendant and went to 270 East Lincoln, where the Defendant resided , to conduct the exchange

. The CI testified that the
Defendant normally did not have the drugs at home , a nd that after receiving the money,
he would leave the house to get the drugs

. The CI admitted that he had a drug problem,
that he had previously smoked crack cocaine with the Defendant , and that he had visited
270 East Lincoln as many as “six, eight times in a night.”

Ray Boswell, a Geographic Information Systems Manager for the City of Maryville, prepared a map of 270 East Lincoln, the Defendant’s house, where the controlled drug purchases occurred. The map showed that the house was w ithin 1,000 feet of two nearby parks, the Richard Williams Park and the Oldfield Community Park. 1 Jacob White, a forensic scientist for the Tennessee Bureau of Investigation, testified that
the rock

- like substances recovered from the informant after both controlled drug purchases tested positive for cocaine.

The State rested, and the Defendant did not offer any proof . The jury returned a guilty verdict on all counts

, and the trial court affirmed the verdict as the thirteenth juror
and set the case for a sentencing hearing. After sentencing, the Defendant filed a motion
for a new trial. The trial court denied the motion, and the Defendant fi led a timely notice of appeal.

On November 3, 2016, after the parties submitted their initial briefs, we dir ected the circuit court clerk to supplement the record and instructed the parties to file supplemental briefs, explaining the effect of State v. Angela E. Isabell , No. M2002

- 00584

- CCA

- R3

- CD, 2003 WL 21486982 (Tenn. Crim. App. June 27, 2003), and State v. Lindsey , 208 S.W.3d 432 (Tenn. Crim. App. 2006) on the present appeal. See Tenn. R. App. P. 24(e) (“If necessary, the appellate or trial court my direct that a supplemental record be certified and transmitted.”); see Tenn. R. App. P. 36(b) (allowing appel late courts to raise issues sua sponte affecting the substantial rights of a party); State v.
Caudle , 388 S.W.3d 273, 279 (Tenn. 2012) (stating that an order of supplementation may be the proper remedy for any deficiencies in the record). The supplemental record was filed on December 22, 2016, and supplemental briefing was completed on March 20,
2017.

ANALYSIS

The Defendant challenges the introduction of specific evidence at trial, the denial of his motion to dismiss the indictment, the sufficiency of the evidence, and the trial

1 The parties and witnesses also occasionally referred to the Oldfield Community Park as the “Oldfield Mini Park” or the “Oldfield Public Park.” To avoid confusion, we refer to this park only as the “Oldfield Community Park.”- 4

-

court’s role as thirteenth juror

. However, before addressing these issues

, we are constrained to address what we perceive to be flaws con tained in the ind ictment s , jury instructions, and verdict forms as plain error. T he duplicitous nature of the Defendant’s
convictions for “sale or delivery” of controlled substances is a c onstitutional error affecting the Defendant’s substantial right to a unanimous jury verdict and reviewable
under plain error analysis

. For the reasons outlined below, we must reverse , vacate, and
dismiss the Defendant’s convict ions

.

I. Plain Error. The plain error doctrine states that “[w]hen necessary to do substantial justice, an appellate court may consider an error that has affected the substantial rights of a party at any time, even though the error was not raised in the
motion for a new trial o r assigned as error on appeal.” Tenn. R. App. P. 36(b).

In order for this court to find plain error, “(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is ‘necessary to do substantial justice.’” State v. Smit h , 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson , 899 S.W.2d 626, 641

- 42 (Tenn. Crim. Ap p. 1994)). “[T]he presence of all five factors must be established by the record before this Court will recognize the existence of plain error, and complete consideration of all the factors is not necessary when it is clear from the record that at least o ne of the factors cannot be established.” Id.

Here, it is cl early established in the record that the Defendant was erroneously charged with two separate and distinct offenses in the same indictment. The Defendant
was indicted for two counts of sale or delivery of cocaine, one count under 0.5 grams and one count more than 0.5 grams. The trial court instructed the jury that, in order to find the Defendant guilty, the jury must find beyond a reasonable d oubt “that the [D]efendant
deli vered or sold a Sche dule II controlled substance.” Moreover, t he verdict forms reflect that the jury found the Defendant “[ g]uilty of [s]ale or [d]elivery ” and t he State argued during closing arguments that the Defendant “delivered or sold” the controlled substance

. W e conclude that the record adequately establishes what occurred at trial for purposes of plain error review

.

Additionally, the rule of law which governs this issue clear ly and un ambiguous ly supports a finding that the Defendant ’s substantial right to a unanimous jury verdict was adversely affected. See State v. Brown , 823 S.W.2d 576, 585 (Tenn. Crim. App. 1991) (“ [ T ] he unanimity requirement is a fundamental right and not contingent upon a request being made.”). This c ourt held in State v. Angela E. Isa bell that delivery and sale of a controlled substance are separate offenses and should not be charged in the same count of- 5

-

an indictment. 2003 WL 21486982, at * 3

- 4. In Angela E. Isabell , the defendant was charged with “sale or delivery” of a controlled substance. Id. at *3. In reversing the convictions, this c ourt explained:

The sentencing commission comments following Tennessee Code
Annotated section 39

- 17

- 417 explain that “[t]he commission wished to
make it clear that each of these acts [, i.e. the manufacture of a controlled substance, the delivery of a controlled substance, and the sale of a controlled substance,] was a separate offense.” See T.C.A. § 39

- 17

- 417(a)(1)

- (3). Generally, it is impermissible to charge two distinct offenses in a single count [of an] indictment. See State v. Jefferson , 529 S.W.2d 674, 678 (Tenn. 1975). In other words, “all crimes arising from the same incident that are not lesser included offenses of another crime charged in the indictment must be charged in separate counts.” State v. Gilliam , 901 S.W.2d 385, 389 (Tenn. Crim. App. 1995). Accordingly, if the indictments underlying the offenses had charged the offenses in separate alternative counts; e.g., count one the sale of crack cocaine, count two the delivery of crack cocaine; the indictment would not be faulty. We agree with the appellant that the indictments impermissibly charged two separate offenses within a single count.

Moreover, in Tennessee a criminal accused enjoys a constitutional right to a jury trial when she faces confinement or a fine of more than fifty
dollars. See State v. Lemacks , 996 S.W.2d 166, 169 (Tenn. 1999). “This constitutional right necessarily includes the right to a unanimous jury verdict before a conviction of a criminal offense may be imposed.” Id. at 169

- 70. Notably,

[q]uestions regarding jury unanimity generally arise in cases where the prosecution presents evidence to the jury that tends to show more than one criminal offense, but the underlying indictment is not specific as to the offense for which the accused is being tried.

Id. at 170. Importantly, the right to unanimity protects against the possibility of a “patchwork” verdict. See State v. Forbes , 918 S.W.2d 431, 446 (Tenn. Crim. App. 1995). In other words, the appellant is entitled to be
convicted of the sale of a controlled substance or the delivery of a controlled substance; she cannot be convicted of the sale or delivery of a controlled substance based upon the same set of facts under a single count
of an indictment.- 6

-

Angela E. Isabell , 2003 WL 21486982, at *3 ; See 9 Da v i d L. Raybin, Tennessee Practice,
Criminal Practice and Proc e dure § 16:16 (2008)

. This court went on to note in Angela E.
Isabell that a verdict form which reflects that the jury found a defendant guilty of “sale or delivery” is “unclear as to what offense the jury unanimously convicted the appellant” and, thus, “[t]he jury’s true decision is a matter of speculation

. . . [a]ccordin gly, we must reverse the appellant’s conviction due to the lack of unanimity in the verdict.” Id. at *4 ( internal citations omitted).

The record reflects that neither party nor the trial court raised this issue at any time and, therefore, the Defendant did not waive the issue for a tactical reason. See Id. at *4 (noting that the appellant did not raise the unanimity issue at trial but unanimity is a “fundam ental right . . . not contingent upon a request being made.”); b ut see State v. Lindsey , 208 S.W. 3d 432 (Tenn. Crim. App. 2006) (finding that, although the indictment erroneously charged that the defendant did “sell and, or deliver” cocaine, the defendant’s
motion to dismiss the indictment was waived because defense counsel made a tactical
decision no t to raise the issue until after jeopardy had attached). Therefore, the consideration of this issue is necessary to prevent a miscarriage of justice. See Adkisson

, 899 S.W.2d at 643.

Moreover, t he State has failed to distinguish Angela E. Isabell from the facts of
this case . The State acknowledges this court’s holding in Angela E. Isabell and that an indictment which charges “sale or delivery” is duplicitious, but argues that plain error relief is not warranted here “because the proof of delivery on both counts is
overwhelmin g , and no reasonable juror could have found sale without also finding delivery.” The State also attempts to distinguish Angela E. Isabell because it conceded error in that case. In our view, the facts in Angel a E. Isabell ar e identical to the case at bar. Therefore, we are unpersuaded by the State’s argument.

Based on the above, we conclude t hat plain error exists, which requires the
Def endant’s convictions to be reversed , vacated, and dismissed. Nevertheless, in light o f potential future appellate review, we will address the Defendant’s remaining issues raised on appeal as follows.

I I. Introduction of Map at Trial

. The Defendant contends that he should be granted a new trial because the trial court erred in admitting the State’s map into evidence
and because he was prejudiced by this error. Specifically, the Defendant argue s that he was prejudiced because “ the defense had never been provided t he objectionable discovery and . . . this same discovery was us ed in the [S]tate’s case

- in

- chief to secure the [d]rug

- [ f]ree [z]one classification.” In response, the State argues that the Defendant has not shown that the admission of the map prejudiced his defense.- 7

-

Tenn. R. Crim. P. 16(a)(1)(F) states the followin g regarding the disclosure of evidence by the State:

Upon a defendant’s request, the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions th ereof, if the item is within the state’s possession, custody, or control and:

(i) the item is material to preparing the defense;

(ii) the government intends to use the item in its case

- in

- chief at trial; or

(iii) the item was obtained fro m or belongs to the defendant.

Rule 16 also states that in the event that a party fails to comply with a discovery request, the trial court may “order that party to permit the discovery or inspection,” “grant a continuance,” “prohibit the party from introducing the undisclosed evidence,” or “enter such other order as it deems just under the circumstances.” Tenn. R. Crim. P. 16(d)(2) (A)

- (D). “A trial court has wide discretion in fashioning a remedy for

non

- compliance with a discovery order, and the s anction should fit the circumstances of the case.” State v. Downey , 259 S.W.3d 723, 737 (Tenn. 2008) (citing State v. Collins

, 35 S.W.3d 582, 585 (Tenn. Crim. App. 2000) ) . The defense has the burden of showing “the degree to which the impediments to disc overy hindered trial preparation and defense at trial.” State v. Brown , 836 S.W.2d 530, 548 (Tenn. 1992). “Generally speaking, the exclusion of the evidence is a drastic remedy and should not be implemented unless there
is no other reasonable alternative .” State v. Smith , 926 S.W.2d 267, 270 (Tenn. Crim. App. 1995) (citing State v. House , 743 S.W.2d 141, 147 (Tenn. 1987)). Additionally,
this c ourt has previously held that “evidence should not be excluded except when it is shown that a party is actually prejudiced by the failure to comply with the discovery order and that the prejudice cannot be otherwise eradicated.” State v. Garland , 617 S.W.2d 176, 185 (Tenn. Crim. App. 1981 ).

The Defendant wa s convicted of violating Tennessee Code Annotated s ection 39

- 17

- 417 for the knowing sale or delivery of a controlled substance. The Drug

- Free Zone Act provides in pertinent part that “[a] vio lation of [section] 39

- 17

- 417 . . . that occurs

. . . within one thousand feet . . . of the real property that comp rise s a

. . . re creational center or park shall be punished one (1) classification higher than is provided in [section] 39

- 17

- 417(b)

- (i) for such violation.” See T.C.A. § 39

- 17

- 432(b)(1). A drug

- free zone violation is not a separate offense and is not a n essential element of the drug offense; rather, the- 8

-

violation allows for increased punishment for a defendant’s conviction. State v. Tate

, No. E2014

- 01191

- CCA

- R3

- CD, 2015 WL 2400718, *6 ( Tenn. Crim. App. May 20, 2015) (holding that a single sale of cocai ne that occurred in two overlapping drug

- free zones resulted in a single conviction , not two separate convictions ) . “Both the caption of the [Drug

- Free Zone] Act and the policy statement set forth in the subsection (a) of the Act reflect the purpose of the legislature, not to create a new offense, but rather to create [ drug

- free zones ] by enhancing penalties for viol ations of T.C.A. § 39

- 17

- 417 occurring inside the zones.” State v. Smith , 48 S.W.3d 159, 168 (Tenn. Crim. App. 2000)

.

Here, t he Defendant made a discovery request to the State and, as part of the State’s response to the discovery request, the Defendant received a map showing one park, the Richard Williams Park, located within 1,000 feet of the location of the drug exchange

. At trial, the State introduced a new map which was not produced during discovery. The new map showed two parks, the Richard Willi ams Park and the Oldfield Community Park, both located within 1,000 feet of the exchange

.

A fter consider ing argument from counsel and examining both maps, the trial court admitted the State’s new map in to evidence

. The trial court found that the Defendant was on notice of the second park’s existence because the park was discussed during the preliminary hearing. The trial court also no ted that the indictments did not specify which park was being qualified as a drug

- free zone , and that the Defendan t did not request a bill of particulars requiring the State to specify which park was being used to determine the drug

- free zone for each offense

.

The Defendant argues that “the difference in the maps was detrimental to [ his ] defense because the parks w ere what was [sic] needed to establish the [d]rug

- [f]ree [z]one requirement of [ the Defendant’s ] subsequent sentencing.” H e further argues that he “had prepared the defense based on the only park on the only map provided to [him] as a part of discovery” a nd that, as a result, “[his] trial preparation and trial defense had
been hindered.” However, t he Defendant failed to present any evidence, testimony, or authority challenging the drug

- free zone classification of either park at trial or sentencing

. Moreover, t he plain language of the Drug

- Free Zone Act indicates only one park is necessary to establish a “drug

- free zone.” Because t he Defendant has failed to show the degree that the delayed disclosure of thi s evidence hindered his defense or any resu lting prejudice, he is not entitled to relief. See Brown , 836 S.W.2d at 548

.

I I I. Denial of Motion to Dismiss. The Defendant also contends that the trial court erred by denying his motion to dismiss the indictment s

. The Defendant does not challenge specific findings of the trial court; however

, he claims that his sente nce s are unconstitutional and grossly disproportionate because they subject him t o “cruel and unusual punishment ” under the Eighth Amendment of the United States Constitution and- 9

-

Articl e I, Section 16 of the Tennessee Constitution. The Defendant also argues that the
shorter sentences he received for his prior felony convictions should be considered as part of the proportionality analysis

. The State argues that the trial court did not e rr by denying
the Defendant ’s motion to dismiss the indictment s because his prior sentences do not impact the proportionality review and because the Defendant’s current sentence s do not raise an inference of gross disproportionality.

T o be clear, our law requires a career offender to serve the maximum sentence for
the offense , which in this case was a sentence of thirty years for the Class B felony and a sentence of fifteen years for the Class C felony. See T.C.A. §§ 40

- 35

- 108(c), 40

- 35

- 112(c)(2), 40

- 35

- 112(c)(3). Accordingly, the trial court did not err by sentencing the
Defendant to the mandatory maximum sentence

.

T he Defendant acknowledges the mandatory maximum sentence required by law to be imposed in this case and does not challenge his s tatus as a career offender. He

argue s instead that his sentence is unconstitutional in comparison to p revious sentences he received for prior felony convictions. H e asserts that “going from Range I, split confinement sentences to being required to serve 30 years at 100% is grossly disproportionate.”

As an initial matter, t he record does not contain copies of the transcripts from the sentencing hearing or the motion for new trial hearing , both of which are necessary for this court to conduct meaningful appellate review of this issue

. It is the duty of the
Defendant to prepare a record which conveys a fair, accurate, and complete account of what transcribed in the trial court with respect to the issues whic h form the basis of the appeal. Tenn. R. App. P . 24(b); State v. Miller , 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). In the absence of an adequate record on appeal, this court mu st presume that the trial court’ s rulings were supported by sufficient evidence. Vermilye v. State , 584 S.W.2d 226, 230 (T enn. Crim. App. 1979). Based on our review of the limited record
before us

, however, the Defendant is not entitled to relief. In his brief, t he Defendant makes bare assertions that his sentences “have not been graduated and proportionate” and were “gross ly disproportionate . . . to the crime.” Significantly, he does not avail himself of the twenty

- four

- hour merger rule, see T.C.A § 40

- 35

- 108(b)(4), or provide any other basis for determining that his thirty

- year sentence was disproportionate to his offens e. We have previously rejected an Eighth Amendment “cruel and unusual punishment” sentencing challenge in a factually similar case and noted that “the severity of the appellant’s punishment is the direct result not merely of an isolated instance of possession inside a [drug

- free zone]

. . . but of a pattern of drug dealing evidenced by [the appellant’s] seven prior convictions of felony drug offenses and his consequent status as a career offender.” Smith , 48 S.W.3d at 172 (holding that an effective sentence of sixty

years of incarceration in accordance with the Drug

- Free Zone Act and the defendant’s- 10

-

career offender status for possession of 0.5 grams or more of cocaine with intent to sell was not cruel and unusual punishment)

. Moreover, this court up held the constitutionality of increased sentences for career offenders, despite disparities between the ir current and previous sentences. See State v. Artez L. Moreis , No. W2002

- 00474

- C CA

- R3

- CD, 2003 WL 1860537, at *10

- 11 (Tenn. Crim. App. Apr. 2, 2003) (holding that a career offender’s fifteen

- year sentence was not cruel and unusual punishment when his prior sentences ranged from three to eight years)

. Based on his uncontested status as a career offender, the Defendant was properly sentenced to the man d atory maximum sentence

. H is sentence does not constitute cruel and unusual punishment, and h e is not entitled to
relief

.

IV

. Sufficiency of the Evidence. The Defendant next challenges the sufficiency of the evidence supporting his convictions for the s ale or delivery of a controlled
substance . He contests the sufficiency of the video evidence depicting the exchange , and claims that “[t]he only evidence that ties the Defendant to the crack cocaine is the confidential informant.” The State responds that a rational juror could conclude that the
Defendant provided cocaine to the CI in a drug

- free zone, and that the jury “did not exceed the scope of its fact finder ability by find ing that [the] [i]nformant was a credible witness.”

When considering the sufficiency of the evidence on appeal, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. State v. Davis , 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors , 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the sufficiency of the evidence, the standard of review applied by this court is “whether, after reviewing the evidenc e 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.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). Similarly, Rule 13(e) of the Tennessee
Rules of A ppellate Procedure states, “Findings of guilt in criminal actions whether by trial court or jury shall be set aside if the evidence is insufficient to support the finding by the trier of fact beyond a reasonable doubt.” “Because a verdict of guilty remove s the presumption of innocence and raises a presumption of guilty, the criminal defendant bears the burden on appeal of showing that the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson , 279 S.W.3d 265, 275 (Tenn. 2009) (cit ing
State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992)).

Guilt may be found beyond a reasonable doubt where there is direct evidence, circumstantial evidence, or a combination of the two. State v. Sutton , 166 S.W.3d 686, 691 (Tenn. 2005); State v. Hall

, 976 S.W.2d 121, 140 (Tenn. 1998). 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)- 11

-

(quoting Hanson , 279 S.W.3d at 275 ). 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 Byr ge 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, and the extent to which the circumstances are consistent with gui lt and inconsistent with innocence are questions primarily for the jury. Dorantes

, 331 S.W.3d at 379 (citing State v. Rice , 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court shall not substitute its inference s for those drawn by the trier of fact. Id.

The Defendant was convicted of sale or delivery of cocaine within 1,000 feet of a park on two separate occasions

. In order to sustain the conviction s for th e s e offense s , t he State was required to prove beyond a reasonable doubt that the Defendant knowingly sold
or delivered cocaine

. See T.C.A. § 39

- 17

- 417 (a)(2)

- (3)

. A violation of subsection (a) with respect to 0.5 grams or more of cocaine is a Class B felony

, and a violation of subsection (a) with respect to 0.5 grams or less of cocaine is a Class C felony. Id. § § 39

- 17

- 417(c) (1), 39

- 17

- 417(c) (2)(A). In addition, the Drug

- Free Zone Act states that a violation of T.C.A. § 39

- 17

- 417 “that occurs on the grounds or fa cilities of any school or within one thousand feet (1,000) of the real property that comprises a public or private elementary school, middle school, secondary school, preschool, child care agency, or public library, recreational center or park shall be pun ished one (1) classification higher than is provided in § 39

- 17

- 417(b)

- (i) for such violation.” Id. § 39

- 17

- 432(b)(1). It is significant to note that the heightened classification, however, did not subject the
Defendant to additional incarceration. Id. § 39

- 17

- 432(b)(3) (stating that defendants are only subject to additional fines for drug sales occurr ing within 1,000 feet of parks); See
State v. Ronald Turner , E2016

- 00790

- CCA

- R3

- CD, 2017 WL 1379999, at *1

- 10 (Tenn. Crim. App. Apr. 13, 2017) (As of the date this opinion was filed, no permission to appeal to the Tennessee Supreme Court has been filed)

.

Viewed in the light most favorable to the State, we conclude that there was sufficient evidence to support the Defendant’s convictions

. The proof established that Officer Aycocke thoroughly searched the CI before both controlled drug purchases

. Officer Aycocke followed the CI to 270 East Lincoln and observed him enter the Defendant’s house. When the CI left the Defendant ’s house, Officer Aycocke again
followed the CI and continuously observed him until he arrived at a prearranged location.
After each exchange , the CI promptly turned over drugs to Officer Aycocke, which were
later determined to be crack cocaine. B oth Officer Aycocke and t he CI testified about each exchange and the procedures that were followed. V ideo recordings and still images from both purchases were admitted in to evidence and shown to the jury

. The jury also
heard testimony that both controlled drug purchases occurred within 1,000 feet of two- 12

-

public parks.

In challenging the sufficiency of the convicting evidence, the Defendant is essentially attacking the credibility of the CI and the weight of the video evidence presented at tri al. However, the jury determine s the weight and credibility to be given to the testimony of witnesses and reconciles all conflicts in the evidence. Bollin v. State

, 405 S.W.2d 768, 771 (Tenn. 1966). Moreover, we note that “our duty on appeal of a
convic tion is not to contemplate all plausible inferences in the Defendant’s favor, but to
draw all reasonable inferences from the evidence in favor of the State.” State v. Sisk , 343 S.W.3d 60, 67 (Tenn. 2011). Based on the evidence, a rational juror could conclude beyond a reasonable doubt that the Defendant knowingly sold or delivered cocaine within a drug

- free zone

. Accordingly, the Defendant is not entitled to relief.

V. Thirteenth Juror. The Defendant similarly argues that the trial court fa iled to properly weigh the evidence in its role as the thirteenth juror. The State disagrees.

Tennessee Rule of Criminal Procedure 33(d) states that “ t he trial court may grant a new trial following a verdict of guilty if it disagrees with the jury abo ut the weight of the evidence.” See State v. Carter , 896 S.W.2d 119, 122 (Tenn. 1995) (holding that the trial court has a duty to serve as the thirteenth juror). Only if the record contains statements by the trial judge indicating disagreement with the jury’s verdict or evidencing the trial judge’s refusal to act as the thirteenth juror may an appellate co urt reverse the trial court’s judgment. Id. Otherwise, appellate review is limited to sufficiency of the evidence pursuant to Rule 13(e) of the Tennessee Rules of Appellate Procedure. State v.
Burlison , 868 S.W.2d 713, 718

- 19 (Tenn. Crim. App. 1993). I f the reviewing court finds that the trial judge has failed to fulfill his or her role as thirteenth juror, the reviewing court must grant a new trial. State v. Moats , 906 S.W.2d 431, 435 (Tenn. 1995).

The record shows that the trial court agreed with the jury’s verdict as the thirteenth juror . Therefore

, this issue is not subject to appellate review.

CONCLUSION

After a thorough review of the record, we reverse and vacate the Defendant’s
convictions and remand to the tri al court for dismissal of the charges

.

_________________________________ CAMILLE R. McMULLEN , JUDGE