### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs February

4, 2003
STATE OF TENNESSEE v. ABEBREE LLIS 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 B ond, was convicted by a jury of two sale s of cocaine. The trial court subsequently sentenced the Defendant to a nine-yea

r term and an eighteen-y

ear term for thes e convicti ons, to be served concurrently in the Department of Correction. The trial court also imposed the two $100,000 fines assessed by the jury . The Def

endant no w appea

ls as of right, challenging the suffi ciency

of the evidence; the admiss ion of ce rtain tes timony ; the tria

l court’sfailure

to is sue a missing witness in struction ; the cha in of cust ody ; and the s entence s and fin es. We modify the Defendant’s fines to $25,000 each. I n 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

D AV ID H. W ELLES , J., delivered the o pi nion of the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined.
Marcus M. Reaves, Denmark, Tennessee , for the appellant, Abebreellis Zandus B ond.

Paul G. Summers, Attorney Gene ral and Reporter; Kim R. Helper, Assistant Attorney Gene ral ; Robert Radford , Distric t Attorne y General ; and Elea

nor Cahill , Assistan

t District Attorney Genera l, for the appellee, State of Tennessee.
OPINION

Camden police officer

Dean Floy d was participating in an undercover dr ug operation under the su pervision o f Lt. Joe Walker, criminal investig ator with

the McKe

nzie police

departm ent. 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 dr ugs from Keith Robinson. When Officer Floy d arrive d, Robinson

was not the

re, but in the drive way was a whi

te car, b eside which
a woman was standing. The woman approached Floy d’s pick-up and Floy d told her what he wanted. Officer Floyd g ave the woman $100, which she convey ed to the dri ver in the wh ite car. Officer Fl oyd was then told to go to the white car, and he g otinto the passenger side of the car. The driver,-2-

a man Off

icer Fl oyd

knew as “Abe,” r

eached into the g love box and

pulled out

a small paper sack containing a “large chunk” of wh at F loyd believed wa s crack cocaine. Office r 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 subseque ntly sealed

the “large chunk” in an evidenc e bag and later turned the evidence bag over to L t. Walker. Officer

Floyd testified that he ha

d “no doubt” that Abe, the driver o f the whit

e car, w as the De

fendant

. Lt. Joe Walker testified that, on October 21, 1996, Officer Floy d turned over to him the substance that Floyd had purc hased 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 g rams of cocaine. Lt. Walker ran the car tag number obtained by Off

icer Floyd and discove

red 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 S ylvester Isl and to wor

k as an un dercove

r agen t and purc

hase dru gs from

suspecte d drug d

ealers

. Mr. Lee testified that, prior to eac h proposed buy, he w ould 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 D efendant for the purchase of drug s. Mr. Lee gaveMr. I sland $100

for the purchase . Mr. L

ee subse quently

monitored the transaction from a short distance away a

nd later collected the substance which Mr. I sland obtained, sealing it in an evidence bag.

Mr. Isla

nd testifi ed that, o n October 30, 1996, he met the Defendant for the f irst time. He then called Mr. Lee, and they discussed Mr. I sland’s approaching the Defendant for a drug pur chase. Mr. Island met with Mr. Lee, was sear ched and wired, and was given $100 to buy “ a sixteenth” of crack cocaine from the Defendant. Mr. I sland then left and droveto a house where he expecte d to find the Defendant. A woman answered the door , but Mr. Island refused to dea l with her. Th e Defend ant, who was in the house, c ame out, a nd the two

men then w ent to a bl

ue car in the car

port. The Defendan t sat in the driver’s seat and pulled out a Crown Roy al bag. From this bag, t h e Defendant

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

Mr. Island the drugs. Mr. Island subsequently delivered the drugs to Mr. L ee.
Mr. Lee turned over the

drugs he received from Mr. I sland to the TBI laboratory for ana lys is, and the drugs were determined to be .8 g rams of cocaine. Mr. Lee al so ran the tag number taken from the blue car in the carport and determined that the car be longed to Barry

Martin, a cousin of the Defe ndant.

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 t hat she remembered

the date because they

had spent time shopping for the De fendant ’s daughter’s Ha ll ow ee n p ar ty, wh ic h w as ta ki ng pl ac e t he ne xt da y.-3-

The Defendant also testified and denied making e ither of the drug sales. He stated that he had never met Dean Floy

d before. He explained the presence of his mother’s car at the house where the October

3 purcha se was ma

de as being ther

e for re pairs, as the re sident of

the house was a good mechanic. He further explained that he knew Sy lvester Island from discussions they had had about an eng ine. On c

ross-exa mination, t

he Defe ndant adm

itted to ha

ving six pr

ior felon y c onviction s.
SUFFICIENCY The Defendant was convicted of the sale of .3 g rams of cocaine and

the sale of .8 grams of cocaine. He now contends that the evidence is not sufficient to support these convictions.

Tennessee Ruleof

Appellate Procedure 13(e) presc ribes that “[f]indings of guilt in criminal actions whether by the

trial court or jury sha

ll be set aside if the evidence is insufficient to support the findings by the trie

r of fact of guilt bey

ond a reasona ble doubt. ” Eviden ce 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. V irginia , 443 U.S. 307, 319 (1979); State v. Smith , 24 S.W.3d 274, 278 (Tenn. 2000). I n addition , becau se conviction by a trier of fact destroy s the presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears the burden of showing that the evide nce was insuffic ient. See McBeev. State , 372 S.W.2d 173, 176 (Tenn. 1 963); see also Stat e v. Buggs , 995 S.W.2d 102, 105-06 (Tenn. 1 999); State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992); State v . Tugg le , 639 S.W.2d 913, 914 (Tenn. 1982).

In its review of the e

vidence , an appe

llate cou rt must af ford the State “the strong est leg itimate view of the evidence as well as all reasonable a nd legit

i mate inferences that may be drawn therefrom.” Tuggl e , 639 S.W.2d at 914; see also Smith , 24 S.W.3d at 279. The court may not “re

weigh or re-evaluate the evidence” in the record below. Evans , 838 S.W.2d at 19 1; see also Buggs , 995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in t he trial te st im on y, the cou rt mus t resolve them in favor of the jury verdict or trial court judgment. See Tuggl e , 639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight an d value to be given the evidenc e, and a ll factua l issues ar e resolv ed by

the trier of fact , not the a

ppellate courts. See State v. Mo

rris , 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 De an Floyd testified that he purchased

a substance from the Defend ant on Oc tober 3, 1 996, during an und ercove r drug o peratio n. He had

“no doubt

” that the person from whom he purchased the substance was the Defend ant. The substanc e was sub sequentl y determinedt o be .3 grams of cocaine. This evidenc e is sufficient to support the Defendant’s convicti on of the s ale of .3 grams o f cocaine, and th is issue is t

herefo re withou t merit.

Si mi la rl y, Sylvester I sland testified that he purchased a substance from the De f e ndant on October 30, 1996, during an undercover drug operation. He had met

the Defendant earlier in the day-4-

and subsequently identified him from photog raphs obtai ned by Steve L ee. The substance he obtained from

the Defendant was determin ed by laborat ory testing to be .8 g rams of c ocaine. This evidence is sufficient

to support

the Defe ndant’s c onviction

of the sa le of .8 grams of cocaine, and this issue i s theref

ore witho ut merit.
SOLICITATION OF HEARSAY The Defe ndan t next contendsthat the p

rosecut or solicit ed hear say

testimony

in violation of his right to a fair trial. The prosecutor wa s asking questions of Mr. Lee concerning the tag number obtain ed from the bl ue car in which Mr. I sland purchased cocaine from the Def endant. Mr. Lee testified that he had discovere d that t he owner of the car, Bar ry Martin, lived in Denmar k, a community

near Jackson. (The Defendant lived in Jackson.) Mr. Lee

then stated, “At whi ch 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 any

body 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 betwee n the Defendant and Barry Martin. Mr. Lee then t

estified again a bout conta

cting th e Orga nized Crime

Unit, stating “I obtained photographs from

the Organized Crime Unit in Jackson. At which time Mr. Island identified [the Defe ndan t.]” Mr. Lee then t

estified that he su bsequen tly o btained t he corr ect name of the pe rson in the photographs, that name being Abebre ellis Bond. The Defendant now claims that “[t]he solicitation of

sa id he ar sa y te st im on y wa s s uf fi ci en t t o t ai nt th e J ur y and made a fair trial to the Appellant impossible.”

It appear s from his b

rief tha t the Defe ndant’s real complaint is Mr. Lee’ s reference to the “Organized Crime Unit” as being the sourc e of the photographs. His refere nce, however, was not hearsay

. See

Tenn. R. E

vid. 801. T

his issue h as no mer

it.
MISSING W

ITNESS INSTRU CTION The Defe ndan t next complains that the trial court erred in failing to instruct the jury about absent materia l witnesse s. The Defendant’s contention arises from the fac t that the St

ate did no t call
as witn esses Mr. Bobby

Lever, who ac companied Officer Floy d on October 3, 1996, or Jaronda Parker, who accompanied Mr. I sland on October 30, 1996. The jury instruction on absent material witnesse s provide s:

When it is within the power of the state or the defe ndant toproduce

a witness who possesses peculiar knowledge conce rning facts essential to that pa rt y’ s contentions and who is availab le to one s ide at the exclusion o f th e other, and t he party to whom the witness is available fails to call such witness, an inference arises that the testim

ony of such w itness w ould 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 ari sen is for y ou to deci de and if

so, y ou are to determine what weight it shall be given.1 We als o note tha t the t rans cri pt of the t rial contai ns no recor d of an oral request by the def ense for the miss ing witness i nstructi on. -5- T.P.I.-- CRI

M. 42.16.

We first note that the Defendant did not raise this issue in his mot i on for new trial. Ac co rd in gl y, this issue is waived. See Tenn. R. A pp. P. 3(e). Moreover, our Rule of Criminal Procedure 30(a) provides that par ties may submit written requests for sp ec ia l i ns tr uc ti on s t o t he ju ry. Failure to submit the special request in writing co nstitutes 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 (Ten n. Crim. App. 1996).

The record before this Court contains no written request for the mis sing witness jury instruction. 1 Accordingly , this issue is waived. See id. Moreover, this issue has no merit. Ou r supreme court has held that, “[b]efore the missing witness rule can be invoked, the evidence must show that ‘the witness hadknowledg e of mate rial facts, that a

relation ship exists be

tween the witness and the party that would natur ally 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) (quot ing State v. Mi d dlebrooks , 840 S.W.2d 317, 334-35 (Tenn. 1992), quoting Delk v. State , 590 S.W.2d 43 5, 440 (Te nn.1979) ). Moreo ver, th e “missing” witness must not have been equally available to both parties. See St at e v . B oyd , 867 S.W.2d 330 , 337 (T enn. Crim. App. 1992). Here, L

t. Walker t

estified that Bob by L ever ha d “disapp eared”

and that, despite h

is best efforts , had not

been located. Mr. Le

ver was not avail able to the proce ss of the tr ial cour t for tria l. Accordingly , the missing witness instruction was not appropriate with respect to Mr. L ever.
With respec t to Ms. JarondaParker, the proof established that Ms. Parker acc ompanied Mr. Island to the hous e where hemet with the Defendant and purchased coca ine. However, Ms. Parker remained in Mr. Island’s car and did not witness the a ctual drug transaction. Moreover , the prosecuting attorney stated during closing argument that Ms. Parke r was under subpoena. Thus, it appears that the Defendant could have called her at trial had he so desired, and she was theref ore not “availa ble 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 withrespect to the cocaine allege dly purchas ed from th

e Defe ndant. Ag ain, this is sue is waived for failure to raise it in the motion for n ew 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 conditi on precedent to the introduction of tangible evidence, that a witness be a ble 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 thechain of custody requir

ement is ‘to demonstrate that there has been no tamper

ing, loss , substitution, or mistake with respect to the evidence.’” Id. (quot ing State
v. Braden , 86 7 S .W .2 d 7 50 , 7 59 (T en n. Cr im .A pp .1 99 3) ). Ho we ve r, th e i de nt it y of tangibl e evi dence-6-

neednot be pro ven bey

ond all pos sibility

of doubt, and the Sta

te is not required to

establish fa cts 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, O fficer Floy d testified that he took the chunk of cocaine sold to him by the Defe ndant, se aled it in a

n evidenc e bag, and locked it in a loc kbox until he delivered the evidence bag to Lt. Walker several day s later. He identified at trial the bag in which he placed the drugs. L

t. 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 Roma nek with the Tennessee Bureau of I

nvestigation laboratory

identified at trial the bag she receive d from Lt. Walker and which she

later de termined to contai n cocain

e. Sh e testifi e d that the bag was in a sealed condition when she received it. She also testified that L t. Walker picked the bag up at the lab after te st in g w as co mp le te . T hi s t es ti mo ny w as su ff ic ie nt to es ta bl is h t he ch ai n o f c us to dy. With respect to the October 30 buy, Mr. I sland identified at trial the bag in which he placed the cocaine he purchased from the Defendant a nd on which he placed his initials, and then delivered to Mr. Lee. Mr. Lee testified that, afte r receiving the substance from Mr. I sland after the transaction, he sealed itin another envelope and delivered it to the TBI lab. Ms. Romanek identified at trial the bag she received from Mr. L ee in a sealed condition, which she tested and determined was cocaine, and which Mr. Lee subsequently picked back up. Again, this testimo ny w as sufficient to establish the chain of custo dy. This issue is without me

rit.
SENTENCING In his final issue, the Defendant complains that his sentences and fines are excessive. When
an accused challenges the leng th, 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 co nsidere d the sent encing principle s and all relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When condu cting a de novo review of a sentence, this Court must consider: (a) the evide nce, if any, re ceived at the trial and sentencing hea ring; (b) the presentence re port; (c) the principles of sentencing and arguments as to sentencing a lter nativ es; (d) the nature and characte ristics of the criminal conduct involved; ( e) any statutory mitigati ng or e

nhance me nt factors ; (f) any sta

tement made by the defe

ndant re gardin g s entencing; and (g) the potential or la ck of potential for rehabilitation or treatment. SeeTenn. Code Ann. §§ 40-35-102, -103, -210; St ate v. Brewer , 875 S .W.2d 298, 302 ( Tenn. Cri m. App. 199 3); State v. Thomas , 755 S.W.2d 838, 844 (T enn. Crim

. App. 1988).

If our review reflects that

the trial court followed

the statutory sentencing

procedure, that the
co urt imposed a

lawful se

ntence a fter ha ving g iven due c onsidera tion and pr

oper we ight to th e factors and principles set out under the sentencing law, and tha t the trial court’s findings of fact are2 We note that there is n o statut ory mini mum for fi nes ass essed on convi ctions for t he sal e of cont

roll ed substa nces. See Tenn. Code Ann. § 39-17- 417.
-7- a dequate ly supported by the record, then we may not modify the sentence

even if we wo uld hav e preferred a different result. See State v. Pike , 978 S.W.2d 904, 926-27 (Tenn. 19 98); State v

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

The Defendant’s October 3 0 sale of .8 grams of cocaine is a Class B fe lony. See Tenn. Code Ann. § 39-17-41 7(c)(1 ). The De fendant ’s Octobe

r 3 sale o f .3 gra

ms of coca

ine is a Cla ss C fe lo ny. See id. § 39-17-417(c)(2). The Defenda ntwas sentenc ed as a Range I I offender, w

hich classification he does not contest. The sentencing rang e for a Class B felony

in Range II

is twelve to twenty y

ears. See id. § 40-3 5-112 (b)(2) . The s enten cing ran ge for a Cla ss C fel ony i n R ang e II is six to ten years. See id. § 40-35-1 12(b)(3 ). The pr esumptive

sentenc e for Cla ss B and Cl ass C felonies is the minimu

m in the ra

nge, increase d as appr

opriate for appl icable e nhance ment fac tors, and decreased as appropriate for applicable mitigating factors. See id. § 40-35-210(c), (e).

In this case , the tria

l court a pplied onl

y one enhancement f

actor: that the De fendant has a p r evious history

of crimin al convictions or c riminal be

havior in addition to

those nec essary

to establish hi s R ang e II s tatus. See id. § 40-35-114(2) (Supp. 2002). The trial court found no mitigating factors, and

the Defe ndant sug gested

none. On t

he basis of the single enhancement factor , the trial cou

rt senten ced the D efenda

nt to eighteen years on the Class B felony and to nine yea

rs on the Class C felony. The sentenc es were ordered to be serve d concurrently in the Department of Correction. The trial court further app roved the $100,000 fine assessed by the jury on eac

h conviction.

The Defendant contends on appeal that “[t]he fines should be redu ced to the statutory minimum.” The Defendant cites no authority for his conte ntion, 2 and this issue is therefore waived. See Tenn. Ct. Crim. App. R. 10(b). However, because we ag ree with the Defendant that the fines are excessive, we will address this issue.

Our supreme court has made clear that the imposition of a fi ne must be based upon the fac tors set forth in the 1989 Sentencing Act, including the defe ndant’s ability to pay

the fine, th e defendant’s prior hist

ory , his or her potential for rehabilitation, relevant mitigating and enhancement factor s, and the se

riousnes s of th e convic tion. See State v. Taylor , 70 S.W.3d 717, 723 (Tenn. 2002). Where a s ubstantia l period o f incar

ceratio n is i mpo sed, a large punitive fine may not be necessary to achieve an appropriate overall sente nce. See id. In this case, the presente nce report indicates that the Defendant’s annual income fr om his lawn-care business provided an annual in come of $22,000 to $29,000. Obviously, the De fendant
was suppl ement ing hi s inco me thr ough 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 servi ng a sentence in Community Corrections at the time he committed the instant offenses. The Defendant admitted to y ears of heavy crack cocaine use.-8-

The Defendant’s criminal history is significant. His potential for rehabilitation appear s dim. The instantoffenses are serious. Beca use he will be incarcerated for a significant period of time, the Defendant’s ability

to pay fines is reduc ed. We note that the trial court found the Defendant to be indigent for the purposes of this appeal. I n light of all these factors, we reduce the De fendant’s fines to $25,000 on each conviction.

The Defendant also con tends th at the trial court should have imposed the minimum sentences in Range II . We disagree. Application of the enhance ment factor for previous criminal history or behavior was appropriate in this case. The Defenda nthas six prior felony convictions. He had
numerous additiona

l misdemea

nor convictions. He admitted to heavy cocaine use for

seven y ears. The weight to be given a pplicable e nhancement factors is left to the sound discretion of the trial judge so long as t

he trial c ourt comp lies 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, t he tri al cou rt spe cific ally stat ed tha t it w as givi ng sign ificant wei ght to thi s enhancement

factor due to the Defendant’s prior history . We find no error by t he trial c ourt in this regard. Additionally, we note that the pre sentence report indicates that the Defenda nt was serving
a Community Corrections sentence whe n he committed the instant offe n ses. The Defendant’s sentences for thes e convic tions wer e therefore al so subjec t to enhancement on this basis. See Tenn. Code Ann. § 40-35-114(14)(E) (Supp. 2002).

Fi na ll y, the Defendant contends that the trial court should have imposed an a lternative sentence rather

than inca rcera tion. I nitially , we note

that the Defendant is not eligible for probation. See Tenn. Code Ann. § 40-35-303(a). Furthermore , the presentence re port indicates that the Defendant

was serving a Community Corrections sentence when he committ

ed the ins tant offe

nses; cl ea rl y, Community Corrections is not appropriate fo r this Defendant. The trial court determined that, basedon the Defendant’s criminal history , an alternative sentence was not appropria te for the Defend ant. We ag

ree. Th is issue is without mer

it.

The Defendant’s fines are eachreduced from $100,000 to $25,000. In a ll other respects, we affirm the judgments of the trial court.

___________________________________ DAVID H. WEL

LES, JUDGE