# FILED

September 18, 1997 Cecil Crowson, Jr

. App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JULY 1997 SESS ION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9701-CR -00011 ) Appellee ) JOHN SON C OUNTY ) v. ) HON. LYNN W. BROW N, ) JUDGE CECIL W ILLIAMSON, ) ) Introduction of con traband in a penal Appellant ) institution

FOR THE APPELLANT FOR THE APPELLEE David F. Bautista John Knox Walkup Distric t Public Defender Attorney Gen eral & Repor ter Gerald L. Gulley, Jr. Michael J. Fahey, II Contract Appel late Attorney Assistant Attorney General P.O. Box 1708 450 James Roberts on Parkway Knoxvil le, TN 37901-1708 Nashvil le, TN 37243-0493 (on appeal) David E. Crockett

Robert Y. Oaks Distric t Attorney General Assistant Publ ic Defender Main Courthouse Lisa Nidiffer Rice Elizabethr

on, TN 37643-3328 Assistant D istrict A ttorney Gener

al (at trial) Rte. 19 Box 99 Johnson City , TN 37601

OPINION FILED

AFFIRMED

JOHN K. BYERS SENIOR JUD GE-2- O P I N I O N The defendant was conv icted of introduc ing marij uana into a penal institution in violation of T.C.A. § 3 9-16-201 and was sentenced to serve six years.

The defen dant raises the following issues:

I. The “punitiv e segregation” and other sanctions applied to the appel lant for possess ing contrab and narcotics within a penal institution, and which are described as “punishments” by the Tennessee Department of Corr

ections, prec lude subsequent indictment and tr ial for the same offense on grounds of dou ble je opa rdy. II. The process by

which pr isoners w ho violate prison rules against possession of illegal contraban d are sele cted for p rose cuti on in stat e cou rt is a sele ctive enforcement that is devoid of any rational bas is, and therefore a vi olation of the equ al protection and due process ri ghts of the appell ant. III. The trial judg e erred as a matt er of law by denying the motions for judgme nt of acquittal and a new trial, where there was not s ufficient evidenc e to sustain a convicti on of the appellant.

We af firm the judgment of the trial cour t. The evidence i ntroduced by the state, unrefuted by the defendant, accredited by the jury and approved by the trial judge, shows:

On February 25, 1995, the def endant was working the child care visitor’s center, where he had access to the visitation gallery, which would bring him in contact w ith persons from outside the pri son.

The defendant entered a toil et which w as adjacent to t he gallery and which was under surv

eillance by

guards. A guard observ ed the defendant putting something into his rectum. The defendant was accosted by the guard and a search revealed a string pr

otruding from t he defendant’s rectum. The defendant was placed in a cel l where a ny bowel movement he had cou ld not be dispos ed of. Within 24 hours, the defendant passed a package w hich contained mar ijuana.-3- The defendant told the pri son officials he was “muling ” [deliv ering] the marijuana to anoth er inmate w hom he would not name. The defendant claims the e vidence is insufficient to c onvict hi m of introducing marijuana int o the prison bec ause there is no direct ev idence of how he got possessi on of the marijuana.

The d efend ant reli es up on th e cas e of State v. Hicks , 835 S.W.2d 32 (Tenn. Crim. Ap p. 1992) to suppor t his arg ument. We believe Hicks is distingui shable from this c ase because, in Hicks , the evidenc e clearly showed the accused in that case was not involved in the introduction of the banned substan ce (whiskey) into the prison but only move d the whis key wi thin the insti tution after it h ad been deposited w ithin the pri son by other s, unaided by

the accused. Id

. at 38. The evidence i n this case s hows the defendant w as in contact with people who c ame into the pri son where t he defendant was w orking. The defendant inserted the marijuana into his rectum in a bathroom adjace nt to the place of cont act with p eop le fr om o utsi de th e pris on. T he m ost re ason able conc lusio n to b e dra wn from this is that the defendant, wi th the aid of someone outs ide the priso n, was involved in the intr

oduction of the mari juana into the pr ison. The trial judg e properly instructed t he jury on the law as it applies to aiding and abet

ting the comi ssion of a cri me and in the req uirements of the law regarding convicti ons based on cir cumstantial ev idence. There is sufficient circumstanti al evidenc e in the case to exclude any other reasonabl e hypothesis than the guil t of the defendant of the offense charg ed, and there is s ufficient evidenc e for a reasonable trier of fact to find guilt beyond a reasonable doubt.

The defendant may not pre vail on th e double jeopardy claim. In Ray v. State , 577 S.W.2d 681 (Tenn. Crim. App. 197 8), the Court held that the i mposition of prison disci pline for the pur poses of institut ional control does not bar pr osecution for the criminal offense which g ave rise to the prison d iscipline. We find no relevant cases holding otherwis e.-4- The defendant claims the p ractice of the pr ison officials i n referring some, but not all , prisoners who commit c rimes whi le incarcer ated, denies him eq ual protection of the law and violates his due pro cess rights.

State officials may

selectively prose cute some who commit crime and not prosecute oth ers who c ommit crime w ithout vio lating eq ual protectio n or due process ri ghts of an accus ed. Yearwood v. State , 455 S. W.2d 612 (Tenn. Crim

. App. 1970); United States v . Allen , 954 F.2d 1160 (6th Cir. 1992). Selective enforcement is unconstitutional when the selection proce ss is based upon ar bitrary calssificat ion of those to be pr osecuted. Oyler v. Bol es , 368 U.S. 448, 82 S. Ct. 501 (1962).

The defendant does not show that there is

an arbitrar

y classi fication of the state for which prosecution is reserved or that he is the member of any class arbitrari ly selec

ted for prosecuti on. He, therefore , has failed to sh ow any b asis for the dismissal of the indictment i n this case.

The judgment of the tr ial court i s affirmed.

John K. Byers, Sen ior Judge CONCUR:

David H. W elles, Ju dge

Thom as T. W oodall , Judge