# FILED
October 7, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE AUGUST 1998 SESSIO N

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9710-CR-00491 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, EDWARD ANTHONY JOSLIN, ) JUDGE ) Appellant. ) (Conspiracy to Posses s with Intent, ) Possession with Intent to Deliver ) (2 counts), and Deliv ery of Marijuana)

FOR THE APPE LLANT: FOR THE APPELLEE:
SAM WALLA

CE, SR. JOHN KNOX WALKUP 227 Second Ave., North Attorney General & Repor ter Nashville, TN 37201 TIM OTH Y F. B EHAN Asst. Attorney General John Sevier Bldg. 425 Fifth Ave., North Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General JOHN ZIMMERMANN Asst. District Attor

ney General Washington Sq., Suite 500 222 Second Ave., North Nashville, TN 37201-1649

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

Ajury found the defendant guilty of conspiracy to possess with the intent to deliver over sev

enty pounds of marijuana; two counts of possession with the int ent to deliver one-half ounce to ten pounds of marijuana; and del ivery of ten pounds, one g ram to seventy pounds of marijuana.The trial court imposed an effective sentence of thirtynine years incarceratio n, with a total fine of one hundred sixty thousand do llars ($160,000). On appeal, the defendant presents ten issues for review, mos t of which deal with the sufficiency of the con victi ng evidence or the propriety of the defendant’s sentence. We affirm the defendant’s convictions and s entence.

On August 23, 1994, members of the Metropolitan Police Department who
were workingwith the Drug Enforcement Administr ation drug task force lear ned that four large, suspicious-looking packages were being sent via Federal Express from Phoenix, Arizona, to Nashvi lle. The packages wer e each addressed to the name “Bri an Orman” at the address of a property owned by a member of the def endant’s family. Thereturn address on thepackages was phon y. When th e packages arrived in Nashville, a drugsniffing dog detected narcotics.

Two police officers borrowed a Federal Express van and dressed a s Federal Express employees in order to deliver the p

ackages. When they drove to the address sp ecified on the packages, they observed two males, O rman and the defendant’s so n, sitting in a pickup truck next to a house. Orman motioned for the Federal Express truck to stop. When it did, Orman signed for the packa ges and helped load them into the back of his truck. Orman and the defendant’s son were then arrested and transported to the drug tas k force office. When t he packages w ere opened, the police discovered over 180 pounds of compressed marijuana wrapped inside of the boxes. Orman and the defen dant’s son identified the defendant as the owner of the3

marijuana. Orman had agreed to pick up the marijuana packages for the defend ant in exchange f ormoney because he was unemploy ed, behind on his truck pay ments, and needed to support his infant. These cir cumstances res ulted in Count I, conspiracy to possess over seventy pounds of marijuana with the intent to deliver.

The drug task

force had learned that a confidential informant had previously purchased marijuanafrom a man named Matthew Clay , whoreceived the drugs fro m the defendant. On December 26, 1994, the drug task force gave the informant moneyto buy marijuanafrom Clay while sur veilling Clay

and the exchange. One officer w atched Clay
as he drove to the residence of 6010 Pennsylvania Avenue.The defendant’s girlfriend liv ed at 6010 Pennsylvania Avenue, which is directly behind the defendant’s h ouse o n California Avenue. After stopping at 6010 Pennsylvania Avenue , Clay then drove to a store parking lot in Ashland City, where he exchanged three-quarters of a pound of marijuanahe had received from the def endant for money from the informa nt. These circumstances resulted in Count II, possession w ith the intent to

deliver one-half ounce to ten pounds of marijuana.

The informant had made arrangements with Clay to purchase t welv e pounds of marijuana. On December 28, 1994, the police followed Clay from his place of employment

to 6010 Pennsylvania Av enue. T hey watch ed as the defendant left his second residence on East Stewart Lane and drove to meet Clay at 6010 Pennsylvania Avenue. They saw the

defend ant remo ve a plasti c bag from his truck a nd give it to Clay. Clay then left the defendant’s house and headed tow ard Ashland City, where he was to meet the informant. Before he arrived at the desig nated meeting place, howev er, he was arrested by the police. Fourteen pounds of marijuana were found in a p lastic bag inside his van. Meanwhile, a s earch warrant was

executed on the residence on East Stewart Lane, where thousands of dollars were seized, and the residence a t 6010 Pennsylvania Avenue, where eight pounds of mari juana were seized. The marijuana seized at 60101 The indictment r eflects that Count II I is possessi on with i ntent to deliver ten pounds, one gr

am to seven ty pounds mariju ana. Du ring trial, the Sta te adm itted that it need ed to cor rect the ind ictmen t to reflect possession with the int ent to del iver one-h alf ounce to ten pounds marijua na, as the pr oof sho wed that o nly eigh t pou nds of m arijua na w as s eized from 6010 Pen nsylva nia A venu e. Up on th is concession, t he trial

court stat

ed it woul d so charge the j ury. The j ury ret urned a verdi ct of “gui lty as charged,” even though a correct ed indictment is absent fr om the record. Al though the j ury in structi ons are absent fr

om the record, we are assuming that the jury was pr operly charged. We are also assuming that th e jud gm ent fo r Cou nt III, w hich reflec ts the char ge of poss ess ion w ith the inten t to de liver o ne-h alf ounce to ten pounds marijuana, i s correct, as it i s consistent with t he conversati on the parti es had on the reco rd du ring tr ial.

2 The judgment form for Count II I incorr ectly indicat es that t he sentence for Count III shou ld be served conse cutively to the s entenc e impo sed in “C ount III,” rathe r than to on e of the oth er coun ts. Considering that the j udgment form for Count I expr essly st ates the t rial co urt’s i ntenti on to sentence the defendant to an effective sentence of thirty-nine years, it is obvious from the record that the trial court intended the sente nce in C ount III to be c onsec utively served to the sen tences impos ed in Co unts I, II, and IV. On remand, this scrivener’s error shoul d be corrected. 4 Pennsylvania Avenue resulted in Count III, possession with the i ntentto deliver one-half
ounce to ten pounds of mari juana, 1 and the exchange of marijuana betw een the d efendant an d Clay resulted in C ount IV, delivery of ten p ounds, one gram to seventy pounds of marijuana.

Based on this evidence, a juryfound the defendant guilty on all counts. The defendant was sentenced to fifteen years incarceration a s a Range II multiple offender
on Count I; six years incarceration as a caree r off ender on Count II; six years incarceration as a career offender on Cou nt III; and twelve years incarceration as a
career offender on Count IV. All sentences ar e to be served consecutiv ely to one another, for an effective sentence of thirty-nine years. 2 The trial court also impos ed a one hundred thousand dollar ($100,000) fine for Count I; a five thousand doll ar ($5000) fine for Count II; a five thousand doll ar ($5000) fine for Count III; and a fiftythousand dollar ($50,000) fine for Count IV. The def endant now appeals.

T he defend ant firs t challen ges his con viction on Count I, c onspirac y t o possess over seventy pounds of marijuana, claiming that the only proof to sustain his conviction is the uncor roborated te

stimony of an

accomp lice, Brian Orman. The defendant concedes that if Orman’s testi mony was corroborated,it would be sufficient to sustain his convicti on for Count I.5 The rule is well settled in Tennessee that a defendantcannot be convicted
on the uncorroborated testimony of an accomplice. Sherrill v. State , 204 Tenn. 427, 321 S .W.2d 811, 814 (1959). An accomplice is defined as “a person w ho know ingly , voluntari ly, and with common intent with the princi pal offender, unites in the commissio n of a crime.” Clapp v. State , 94 Tenn. 186, 30 S.W . 214, 216 (1895). To corroboratethe testimony

of an accomplice, “there should be som e fact testified to, entirely independent of the accomplice’s evidenc e, which, taken by itself, leads to the inference, not only that
a crime has been committed, but als o that the defendant is implicated in it.” Id. This corroboration must consist of some fact or circumstance whic h affects the identity of the defendant. Furthermore, the jury is to determine

the degr ee of evidence necessary t o corroboratethe testimony of an accomplic e, a nd it is sufficient “if there is some other evidence fairly tending to connec t the defendant with the commissi on of the crime.” Id. at 217.
Here, Orman was indicted for and pled g uilty to conspiracy to posses s over seventy pounds of marijuana, thus establishing that he was an accomp li ce to t he defendant. However, contrar y to the defendant’s argument, the defend an t was not convicted solely upon Orman’s tes ti mony. At trial, Orman tes tified that in return for payment, the defendant asked him to pick up some packages of mari juana that he was expectingto be delivered, that the pa ckages of marijuana belonged t o the defendant, and that he identified the defe ndant as the owner of the packages after he was arrested. Orm an’s testim ony was amply cor roborated. A police officer tes tified that after the p ackageswere delivered and Orman and the defendant’s son were arrest ed, th e defendant’s son also identified the defendant as the owner of the packages. There was also evidence that the defendant’s “main man,” a euphemi sm for “drug supplier,” was a
man named “Ricco” from Phoenix and that Ricco was a know n drug supplier who operated out of Arizona. Moreove r, the day before the packages

were sent f rom Phoe nix, the defendant withdrew three thousand dollars ($3000) from hi s bank account . Thi s6

evidence is sufficient corroboration of Orman’s trial testimony, which is sufficient to
s upport the defendant’s conviction for C ount I, conspiracy to pos sess over sevent

y pounds of marijuana.

The defend ant also challenges his convictions for Counts II-IV, claim ing tha t because the trial t

estimo ny o f Matthew Clay, w ho the defendant contends was an accomplice, was not corroborated, Clay’s test imony is insufficient to support his convictions. The defendant’s argument is based on an incorrect pr emise, i.e., that Clay
was the defendant’s accomplice in the crimes charged in Counts II-IV . Cla ycould not have been considered an accomplice i n Counts II-IV because he did no t share a common intentwith the defendant to commit the cr imes charged; Clay w

as nothing more than the defendant’s agent for delivery. Because he was not an accomplice in Counts II-IV, his trial testimony need not have been c orroborated in order to be sufficient to support the defendant’s convictions on those counts.

However, even if Clay could have been considere d t he defendant’s accomplice, ther e was s uff icient evidence in the r ecord to corroborate Clay ’s trial testimo ny. Clay testified that he had picked up some marijuana from the defendant and had g iven it toanother person (the confidential informan t) on December 26. Clay also testified that on December 28, he was a rreste d for possessing fourteen pounds of marijuana, which he had receiv ed from the d efend ant earlier that day. A police officer testified that on December 26, he watch ed Clay stop by the r esidenc e at 6010 Pennsylvania Avenue and then proceed to a store parking lot

in Ashland City, w

here he gave three-quarters of a pound of marijuana to the confidential informant. A poli ce officer also testified that o n December 28, Clay met with the defendant at 6010 Pennsylvania Avenue, and the defendant gave Clay a plastic bag. The plastic bag was later recovered3 W hile th e polic e off icer s aw C lay acc ept th e plas tic ba g fro m th e def end ant, h e did n ot se e him actu ally plac e it in his van b eca use the a ngle a t whic h he w as ob serv ing th e exc han ge ob struc ted h is view. The defe nda nt arg ues that w ithou t suc h evid enc e and witho ut the police offic er ob serv ing th at it was co ntraban d that was excha nged, the police offic er’s testim ony cann ot corrob orate C lay’s. W e disagree. It is enough that t he police of ficer testifi ed that he saw Cl ay accept t he plasti c bag, that it was the only plasti c bag found in Cl ay’s van when he was arrested,and that t he plasti c bag contained fourteen pounds of

marijuana. 7 in Clay’s vanwhen he was arreste d; the bag contained fourteen pounds of mari juana. 3 Even if Clay could be consider ed an accomplice to Counts II-IV, this evidence w

ould be suffic ient to co rroborat e Clay’s tes timony.

Next, the defendant appears to challenge his conv ictions on Counts III and IV on the grounds that these conv ictions, the first of whi ch dea ls with posse ssion of marijuanaon December 26 and the second of which deals with delivery of marijuana on the same day, violate the Double Jeopardy Clause. We fail to und erstand how such an argumentcan be raised in good faith, however, s ince the record is clear that each count
concernsa different quantity of confiscated marijuana: Count III arose from the marijuana seized at 6010 Pennsylvani a Aven ue pursuant to a search war rant, while Count IV concerned the plastic bag of marij uana that the defendant gave to Cl ay and that was found in Clay’s van following his arr est. Because each count arose und er different circumstances

and is supported by different ev idence, the defendant’s double jeopardy challenge is wholl

y without merit.

The defendant also challenges his s entence, complaining that his sentence is exce ssive be cause he is not a viol ent off ender an d his convi ctions do not involve “serioushard drugs.” How ever, the defendant failed to incl ude a copy of thesentencing hearing transcrip

t in the rec

ord, as is h is burden as appellant to

do. T. R.A.P. 24(b). Because the record is incomplete,we are precluded fromreviewing the pr opriety of the sentence imposed ; instead , “we must conclusively presume the judgment of the trial court was correct.” State v. Ma tthews , 805 S.W.2d 776, 78 4 (Tenn. Crim. App. 1990).8 At the end of his brief, the defendant makes two other abrupt assertions, i.e., that the trial court err ed in allowing into evidence “conduct that w as not included in the indictment,” an d that the tr ial court erred in all owing into evidenc e proof about the individual named “Ricco.” Ho wever, the d efendant failed to raise these issues in his motion for a new trial, thus waiving these issues on appeal. See T.R.A.P. 3(e); State v. Clinton , 754 S.W.2d 100, 103 (Tenn. Crim. App. 1988). The defendant has also waived these issues by failing to cite to the record or to any authority. See Rules of the Court of Criminal Appeals of Tennessee 10(b).

Finding no merit in the defendant’s arg umen ts, we affirm his convictions and sentence.

_______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ THOMAS T. W OODALL, Judge

______________________________ L. TERRY LAFFERT Y, Special Judge