IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 4, 2003

STATE OF TENNESSEE v. ABEBREELLIS ZANDUS BOND

Direct Appeal from the Circuit Court for Carroll County

No. 97CR-0139 C. Creed McGinley, Judge

No. W2002-00943-CCA-R3-CD - Filed April 16, 2003

The Defendant, Abebreellis Zandus Bond, was convicted by a jury of two sales of cocaine. The trial

court subsequently sentenced the Defendant to a nine-year term and an eighteen-year term for these

convictions, to be served concurrently in the Department of Correction. The trial court also imposed

the two $100,000 fines assessed by the jury. The Defendant now appeals as of right, challenging the

sufficiency of the evidence; the admission of certain testimony; the trial court’s failure to issue a

missing witness instruction; the chain of custody; and the sentences and fines. We modify the

Defendant’s fines to $25,000 each. In all other respects, we affirm the trial court’s judgments. 

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

Modified

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA

MCGEE OGLE, JJ., joined.

Marcus M. Reaves, Denmark, Tennessee, for the appellant, Abebreellis Zandus Bond.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

Robert Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

Camden police officer Dean Floyd was participating in an undercover drug operation under

the supervision of Lt. Joe Walker, criminal investigator with the McKenzie police department.

Floyd’s role was to purchase drugs from suspected drug dealers. Officer Floyd testified that, on

October 3, 1996, he went to a house in McKenzie to purchase drugs from Keith Robinson. When

Officer Floyd arrived, Robinson was not there, but in the driveway was a white car, beside which

a woman was standing. The woman approached Floyd’s pick-up and Floyd told her what he wanted.

Officer Floyd gave the woman $100, which she conveyed to the driver in the white car. Officer

Floyd was then told to go to the white car, and he got into the passenger side of the car. The driver,
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a man Officer Floyd knew as “Abe,” reached into the glove box and pulled out a small paper sack

containing a “large chunk” of what Floyd believed was crack cocaine. Officer Floyd took the

substance given him by Abe and returned to his pick-up. He took down the license tag number from

the white car and left the scene. He subsequently sealed the “large chunk” in an evidence bag and

later turned the evidence bag over to Lt. Walker. Officer Floyd testified that he had “no doubt” that

Abe, the driver of the white car, was the Defendant.

Lt. Joe Walker testified that, on October 21, 1996, Officer Floyd turned over to him the

substance that Floyd had purchased on October 3, 1996. Walker subsequently turned the substance

over to the TBI laboratory on October 23, 1996, where it was determined to be .3 grams of cocaine.

Lt. Walker ran the car tag number obtained by Officer Floyd and discovered that the white car was

registered to the Defendant’s mother.

Steve Lee, the Director of the 24th Judicial District Drug Task Force, testified that he hired

Sylvester Island to work as an undercover agent and purchase drugs from suspected drug dealers.

Mr. Lee testified that, prior to each proposed buy, he would meet with Mr. Island, search him, and

then equip Mr. Island with a body wire. On October 30, 1996, Mr. Lee had such a meeting with Mr.

Island in preparation for Mr. Island to approach the Defendant for the purchase of drugs. Mr. Lee

gave Mr. Island $100 for the purchase. Mr. Lee subsequently monitored the transaction from a short

distance away and later collected the substance which Mr. Island obtained, sealing it in an evidence

bag.

Mr. Island testified that, on October 30, 1996, he met the Defendant for the first time. He

then called Mr. Lee, and they discussed Mr. Island’s approaching the Defendant for a drug purchase.

Mr. Island met with Mr. Lee, was searched and wired, and was given $100 to buy “a sixteenth” of

crack cocaine from the Defendant. Mr. Island then left and drove to a house where he expected to

find the Defendant. A woman answered the door, but Mr. Island refused to deal with her. The

Defendant, who was in the house, came out, and the two men then went to a blue car in the carport.

The Defendant sat in the driver’s seat and pulled out a Crown Royal bag. From this bag, the

Defendant pulled out $100 worth of crack cocaine. Mr. Island handed the Defendant the money, and

the Defendant handed Mr. Island the drugs. Mr. Island subsequently delivered the drugs to Mr. Lee.

Mr. Lee turned over the drugs he received from Mr. Island to the TBI laboratory for analysis,

and the drugs were determined to be .8 grams of cocaine. Mr. Lee also ran the tag number taken

from the blue car in the carport and determined that the car belonged to Barry Martin, a cousin of

the Defendant.

Thiakia Tidewell testified on behalf of the Defendant, stating that he had been with her the

entire evening of October 30, 1996, beginning at about five o’clock. She explained that she

remembered the date because they had spent time shopping for the Defendant’s daughter’s

Halloween party, which was taking place the next day.
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The Defendant also testified and denied making either of the drug sales. He stated that he

had never met Dean Floyd before. He explained the presence of his mother’s car at the house where

the October 3 purchase was made as being there for repairs, as the resident of the house was a good

mechanic. He further explained that he knew Sylvester Island from discussions they had had about

an engine. On cross-examination, the Defendant admitted to having six prior felony convictions.

SUFFICIENCY

The Defendant was convicted of the sale of .3 grams of cocaine and the sale of .8 grams of

cocaine. He now contends that the evidence is not sufficient to support these convictions. 

Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in criminal

actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support

the findings by the trier of fact of guilt beyond a reasonable doubt.” Evidence is sufficient if, after

reviewing 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. See Jackson v. Virginia,

443 U.S. 307, 319 (1979); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). In addition, because

conviction by a trier of fact destroys the presumption of innocence and imposes a presumption of

guilt, a convicted criminal defendant bears the burden of showing that the evidence was insufficient.

See McBee v. State, 372 S.W.2d 173, 176 (Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102,

105-06 (Tenn. 1999); State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

In its review of the evidence, an appellate court must afford the State “the strongest legitimate

view of the evidence as well as all reasonable and legitimate inferences that may be drawn

therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “reweigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,

995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial

testimony, the court must resolve them in favor of the jury verdict or trial court judgment. See

Tuggle, 639 S.W.2d at 914. 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, not the appellate

courts. See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620,

623 (Tenn. Crim. App. 1987).

Cocaine is a Schedule II controlled substance. See Tenn. Code Ann. § 39-17-408(b)(4). Our

Criminal Code provides that “[i]t is an offense for a defendant to knowingly . . . [s]ell a controlled

substance.” Id. § 39-17-417(a)(3). Officer Dean Floyd testified that he purchased a substance from

the Defendant on October 3, 1996, during an undercover drug operation. He had “no doubt” that the

person from whom he purchased the substance was the Defendant. The substance was subsequently

determined to be .3 grams of cocaine. This evidence is sufficient to support the Defendant’s

conviction of the sale of .3 grams of cocaine, and this issue is therefore without merit.

Similarly, Sylvester Island testified that he purchased a substance from the Defendant on

October 30, 1996, during an undercover drug operation. He had met the Defendant earlier in the day
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and subsequently identified him from photographs obtained by Steve Lee. The substance he

obtained from the Defendant was determined by laboratory testing to be .8 grams of cocaine. This

evidence is sufficient to support the Defendant’s conviction of the sale of .8 grams of cocaine, and

this issue is therefore without merit.

SOLICITATION OF HEARSAY

The Defendant next contends that the prosecutor solicited hearsay testimony in violation of

his right to a fair trial. The prosecutor was asking questions of Mr. Lee concerning the tag number

obtained from the blue car in which Mr. Island purchased cocaine from the Defendant. Mr. Lee

testified that he had discovered that the owner of the car, Barry Martin, lived in Denmark, a

community near Jackson. (The Defendant lived in Jackson.) Mr. Lee then stated, “At which time

I contacted the Organized Crime Unit out of Jackson.” Defense counsel objected, stating “I’m going

to object to anything that he learned from anybody else. It’s hearsay.” The trial court sustained the

objection. 

In response to further questions by the prosecutor, to which no further objections were made,

Mr. Lee testified that the investigation revealed the relationship between the Defendant and Barry

Martin. Mr. Lee then testified again about contacting the Organized Crime Unit, stating “I obtained

photographs from the Organized Crime Unit in Jackson. At which time Mr. Island identified [the

Defendant.]” Mr. Lee then testified that he subsequently obtained the correct name of the person in

the photographs, that name being Abebreellis Bond. The Defendant now claims that “[t]he

solicitation of said hearsay testimony was sufficient to taint the Jury and made a fair trial to the

Appellant impossible.” 

It appears from his brief that the Defendant’s real complaint is Mr. Lee’s reference to the

“Organized Crime Unit” as being the source of the photographs. His reference, however, was not

hearsay. See Tenn. R. Evid. 801. This issue has no merit.

MISSING WITNESS INSTRUCTION

The Defendant next complains that the trial court erred in failing to instruct the jury about

absent material witnesses. The Defendant’s contention arises from the fact that the State did not call

as witnesses Mr. Bobby Lever, who accompanied Officer Floyd on October 3, 1996, or Jaronda

Parker, who accompanied Mr. Island on October 30, 1996. The jury instruction on absent material

witnesses provides:

When it is within the power of the state or the defendant to produce a witness

who possesses peculiar knowledge concerning facts essential to that party’s

contentions and who is available to one side at the exclusion of the other, and the

party to whom the witness is available fails to call such witness, an inference arises

that the testimony of such witness would have been unfavorable to the side that

should have called or produced such witness. Whether there was such a witness and

whether such an inference has arisen is for you to decide and if so, you are to

determine what weight it shall be given.
1We also note that the transcript of the trial contains no record of an oral request by the defense for the missing

witness instruction.

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T.P.I.-- CRIM. 42.16. 

We first note that the Defendant did not raise this issue in his motion for new trial.

Accordingly, this issue is waived. See Tenn. R. App. P. 3(e). Moreover, our Rule of Criminal

Procedure 30(a) provides that parties may submit written requests for special instructions to the jury.

Failure to submit the special request in writing constitutes a waiver of the issue. See State v.

Vickers, 985 S.W.2d 1, 8 (Tenn. Crim. App. 1997); State v. Brewer, 932 S.W.2d 1, 15 (Tenn. Crim.

App. 1996).

The record before this Court contains no written request for the missing witness jury

instruction.1

 Accordingly, this issue is waived. See id. Moreover, this issue has no merit. Our

supreme court has held that, “[b]efore the missing witness rule can be invoked, the evidence must

show that ‘the witness had knowledge of material facts, that a relationship exists between the witness

and the party that would naturally incline the witness to favor the party and that the missing witness

was available to the process of the Court for trial.”’ State v. Bigbee, 885 S.W.2d 797, 804 (Tenn.

1994) (quoting State v. Middlebrooks, 840 S.W.2d 317, 334-35 (Tenn. 1992), quoting Delk v.

State, 590 S.W.2d 435, 440 (Tenn.1979)). Moreover, the “missing” witness must not have been

equally available to both parties. See State v. Boyd, 867 S.W.2d 330, 337 (Tenn. Crim. App.

1992). Here, Lt. Walker testified that Bobby Lever had “disappeared” and that, despite his best

efforts, had not been located. Mr. Lever was not available to the process of the trial court for trial.

Accordingly, the missing witness instruction was not appropriate with respect to Mr. Lever.

With respect to Ms. Jaronda Parker, the proof established that Ms. Parker accompanied Mr.

Island to the house where he met with the Defendant and purchased cocaine. However, Ms. Parker

remained in Mr. Island’s car and did not witness the actual drug transaction. Moreover, the

prosecuting attorney stated during closing argument that Ms. Parker was under subpoena. Thus, it

appears that the Defendant could have called her at trial had he so desired, and she was therefore not

“available to one side at the exclusion of the other.” T.P.I. -- CRIM. 42.16. The Defendant’s

contentions in this regard warrant him no relief.

CHAIN OF CUSTODY

In his fourth issue, the Defendant claims that the State did not establish the chain of custody

with respect to the cocaine allegedly purchased from the Defendant. Again, this issue is waived for

failure to raise it in the motion for new trial. See Tenn. R. App. P. 3(e). Moreover, it is without

merit. As our supreme court has previously recognized, Tennessee Rule of Evidence 901(a) requires

as a condition precedent to the introduction of tangible evidence, that a witness be able to identify

the evidence or establish an unbroken chain of custody. See State v. Scott, 33 S.W.3d 746, 760

(Tenn. 2000). “The purpose of the chain of custody requirement is ‘to demonstrate that there has

been no tampering, loss, substitution, or mistake with respect to the evidence.’” Id. (quoting State

v. Braden, 867 S.W.2d 750, 759 (Tenn.Crim.App.1993)). However, the identity oftangible evidence
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need not be proven beyond all possibility of doubt, and the State is not required to establish facts

which exclude every possibility of tampering. See id. (citations omitted). “The evidence may be

admitted when the circumstances surrounding the evidence reasonably establish the identity of the

evidence and its integrity.” Id. 

In this case, with respect to the October 3 buy, Officer Floyd testified that he took the chunk

of cocaine sold to him by the Defendant, sealed it in an evidence bag, and locked it in a lockbox until

he delivered the evidence bag to Lt. Walker several days later. He identified at trial the bag in which

he placed the drugs. Lt. Walker also identified the bag he received from Officer Floyd and testified

that he kept the bag until delivering it to the laboratory two days later. Sandra Romanek with the

Tennessee Bureau of Investigation laboratory identified at trial the bag she received from Lt. Walker

and which she later determined to contain cocaine. She testified that the bag was in a sealed

condition when she received it. She also testified that Lt. Walker picked the bag up at the lab after

testing was complete. This testimony was sufficient to establish the chain of custody.

 With respect to the October 30 buy, Mr. Island identified at trial the bag in which he placed

the cocaine he purchased from the Defendant and on which he placed his initials, and then delivered

to Mr. Lee. Mr. Lee testified that, after receiving the substance from Mr. Island after the transaction,

he sealed it in another envelope and delivered it to the TBI lab. Ms. Romanek identified at trial the

bag she received from Mr. Lee in a sealed condition, which she tested and determined was cocaine,

and which Mr. Lee subsequently picked back up. Again, this testimony was sufficient to establish

the chain of custody. This issue is without merit.

SENTENCING

In his final issue, the Defendant complains that his sentences and fines are excessive. When

an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to

conduct a de novo review of the sentence with a presumption that the determinations made by the

trial court are correct. See Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon

the affirmative showing in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,

if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of

sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the

criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement

made by the defendant regarding sentencing; and (g) the potential or lack of potential for

rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875

S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.

App. 1988).

If our review reflects that the trial court followed the statutory sentencing procedure, that the

court imposed a lawful sentence after having given due consideration and proper weight to the

factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
2We note that there is no statutory minimum for fines assessed on convictions for the sale of controlled

substances. See Tenn. Code Ann. § 39-17-417.

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adequately supported by the record, then we may not modify the sentence even if we would have

preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

 The Defendant’s October 30 sale of .8 grams of cocaine is a Class B felony. See Tenn.

Code Ann. § 39-17-417(c)(1). The Defendant’s October 3 sale of .3 grams of cocaine is a Class C

felony. See id. § 39-17-417(c)(2). The Defendant was sentenced as a Range II offender, which

classification he does not contest. The sentencing range for a Class B felony in Range II is twelve

to twenty years. See id. § 40-35-112(b)(2). The sentencing range for a Class C felony in Range II

is six to ten years. See id. § 40-35-112(b)(3). The presumptive sentence for Class B and Class C

felonies is the minimum in the range, increased as appropriate for applicable enhancement factors,

and decreased as appropriate for applicable mitigating factors. See id. § 40-35-210(c), (e).

In this case, the trial court applied only one enhancement factor: that the Defendant has a

previous history of criminal convictions or criminal behavior in addition to those necessary to

establish his Range II status. See id. § 40-35-114(2) (Supp. 2002). The trial court found no

mitigating factors, and the Defendant suggested none. On the basis of the single enhancement factor,

the trial court sentenced the Defendant to eighteen years on the Class B felony and to nine years on

the Class C felony. The sentences were ordered to be served concurrently in the Department of

Correction. The trial court further approved the $100,000 fine assessed by the jury on each

conviction.

The Defendant contends on appeal that “[t]he fines should be reduced to the statutory

minimum.” The Defendant cites no authority for his contention,2

 and this issue is therefore waived.

See Tenn. Ct. Crim. App. R. 10(b). However, because we agree with the Defendant that the fines

are excessive, we will address this issue.

Our supreme court has made clear that the imposition of a fine must be based upon the

factors set forth in the 1989 Sentencing Act, including the defendant’s ability to pay the fine, the

defendant’s prior history, his or her potential for rehabilitation, relevant mitigating and enhancement

factors, and the seriousness of the conviction. See State v. Taylor, 70 S.W.3d 717, 723 (Tenn.

2002). Where a substantial period of incarceration is imposed, a large punitive fine may not be

necessary to achieve an appropriate overall sentence. See id.

 In this case, the presentence report indicates that the Defendant’s annual income from his

lawn-care business provided an annual income of $22,000 to $29,000. Obviously, the Defendant

was supplementing his income through drug-dealing, but the record does not provide any accounting

of how much this supplemental income may have been. The Defendant has six prior felonies and

was serving a sentence in Community Corrections at the time he committed the instant offenses. The

Defendant admitted to years of heavy crack cocaine use. 
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The Defendant’s criminal history is significant. His potential for rehabilitation appears dim.

The instant offenses are serious. Because he will be incarcerated for a significant period of time, the

Defendant’s ability to pay fines is reduced. We note that the trial court found the Defendant to be

indigent for the purposes of this appeal. In light of all these factors, we reduce the Defendant’s fines

to $25,000 on each conviction.

The Defendant also contendsthat the trial court should have imposed the minimum sentences

in Range II. We disagree. Application of the enhancement factor for previous criminal history or

behavior was appropriate in this case. The Defendant has six prior felony convictions. He had

numerous additional misdemeanor convictions. He admitted to heavy cocaine use for seven years.

The weight to be given applicable enhancement factors is left to the sound discretion of the trial

judge so long as the trial court complies with the purposes and principles of the 1989 Sentencing Act

and the record supports its findings. See State v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App.

2001). Here, the trial court specifically stated that it was giving significant weight to this

enhancement factor due to the Defendant’s prior history. We find no error by the trial court in this

regard. Additionally, we note that the presentence report indicates that the Defendant was serving

a Community Corrections sentence when he committed the instant offenses. The Defendant’s

sentences for these convictions were therefore also subject to enhancement on this basis. See Tenn.

Code Ann. § 40-35-114(14)(E) (Supp. 2002).

Finally, the Defendant contends that the trial court should have imposed an alternative

sentence rather than incarceration. Initially, we note that the Defendant is not eligible for probation.

See Tenn. Code Ann. § 40-35-303(a). Furthermore, the presentence report indicates that the

Defendant was serving a Community Corrections sentence when he committed the instant offenses;

clearly, Community Corrections is not appropriate for this Defendant. The trial court determined

that, based on the Defendant’s criminal history, an alternative sentence was not appropriate for the

Defendant. We agree. This issue is without merit.

The Defendant’s fines are each reduced from $100,000 to $25,000. In all other respects, we

affirm the judgments of the trial court. 

___________________________________ 

DAVID H. WELLES, JUDGE