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

Briefs J anuary

16, 2002

STATE OF TENN ESSEE v. KIM HICKERSO N
Direct Appeal from the Circuit Court for Coffee County

No. 28,367 John W. Rollins, Judge

No. M2001-02072-CCA-R3-CD - F iled October 23, 2002

On December 15, 1997, a Coffe e County jury convicte d Appella

nt Kim Hick

erson of selling less than 0.5 grams of

cocaine, a class C felony . After a sentencing hear ing on January 23, 1998, the trial court sentenced Appellant as a career offender to a term of fifteen y ears imprisonment. Appellant challen ges both

his convic tion and hi s sentenc e, raisin g the fo llowing i ssues: 1) whether the evidence was suffic ient to support his conviction; 2) whether the State established a proper chain of c ustody for the

cocaine that was i ntroduce d into evidence; and 3) whether the Appellant was properly sentenced as a career

offender. After a review o f the re cord, we

affirm t he judg ment of the

trial cou rt.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t is Affirmed.

J ERRY S MITH , J., delivered the opinion of the court, in which T HOMAS T. W OODA LL and R OBER T W. W EDEMEYER , JJ., joined.
Robert S. Peters, Winchester, Tennessee, for the appellant, Kim Hicker son.

Paul G. Summers, Attorney Gene ral & Reporter; Gill Robert Geldreich, Assistant Attorney Genera l; Mickey Lay ne, District Attorney Ge

neral; and Stephen E. Weitzman, A ssistan t District Attorney General, for the appellee, State of Te nnessee.
OPINION

Detective Nick Watson of the Laverg ne P olice Department test

ified that on October 25, 1996, he was work

ing unde rcover in Coffee County, posing as a drug buyer. At about 10:00 p.m., he a nd
a confidential informant were parked outside the Golden B ird nightclub in Tullahoma. The Appellan t, whom Detective Watson had noticed standing outside the club with a woman and another man, approac

hed the undercove

r vehicl e. The in

formant introduce d the Appe llant t o Detective Watson, and th e Appell ant asked, “What do you need?” The Detective responded that he needed
a “fifty.” The

Appellant replied, “Okay ” and returned to the two people with whom he had been-2-

stand ing. Detective Watson then witnessed the other male in the group, Vond el Hickerson, hand something to the female, Tosha Burnett. Burnett appr oached the driver’s side of the vehicle, where Detective Watson was sitting, and asked hi m for the mo ney . Detec tive Watson handed her fifty dollars, and she gave h

im two off

-white r ock substa

nces. Wat son testif

ied that B urnett

then walked back to th e Appella nt and handed him the

fifty dollars.

Tosha Burnett testified that Vondel Hickerson first handed the coc a ine to Appellant, who then handedit to her a

nd asked her to ta ke it to Wats on’s car . After e xchangin g the co caine f

or fifty dollars f rom Watson, she ga

ve the money

to Appella

nt.

After the drug salewas completed, Watson and the informant left the parking lot of the club and drove to

a secure location. When they arrived, Watson placed the rocks, which he had stored in the console of his car, in a plastic bag that he marked as evidence and sealed with tape. Watson then drove to meet Officer Brent Perry

of the Tullahoma Police Department. Watson gave Perry the bag containing the two rocks. O fficer Pe rry testified that whe

n he received the evidence fr om Watson, he place d the bag containi ng the r

ocks into a larger evidence ba

g, sealed the evidence

bag, and wrote the date, time, names of the susp ects, and ot her in forma tion on th e bag. Perry then took the evidence to the Police Department and locked them in his personal filing cabinet in his office. The next day, Perry

took the evidence out of his filing ca binet a nd gave it to his captain, Mike Hutchins. Office

r Perry testifie d that he p ersonally o bse rved Hutchins place the evidence bag containing the rocks in a locked filing cabinet, where it remained until November 13, 1996. On that date, Perry we

nt to Hutchins’s office and che cked the evidenc e bag out. He the n persona lly took the evidence to the Tennessee Bureau of Inves tigat ion C rime Lab orato ry in Chat tanoo ga for t estin g. When Perry re

trieved the evidence from the TBI , he checked it into the evidence vault at the police station, w here it r emained until the ti me of the

trial.
Selena Darter, a forensic che mist with the TBI

Crime L aborato

ry in Chattanooga, testified that the rock s in the evidence bag give n to the TBI by

Officer Perry

tested positive for

cocaine with a weight of .29 g

rams. At the sentencing hearing on January 23, 1998, L

aura Prosser, a probation officer with the Department

o f Cor rection, testified that she prepared a prese ntence report in Appellant’s case. Appellant stipulated th at the prior convictions listed in the report were true and ac curate. Prosser testified that Appellant had six prior cocaine sale con victions in

Coffee C ounty

and all six occurred
on different dates more tha n twenty-four hours apar

t. She also

testified that Appellant had four prior felony convictions for selling cocaine in Kentucky . At the time of the instant offense, Appellant was
on parole for his Kentucky c onvictions and on probation for his Coffee County convictions. At the conclusion of the sentencing hearing , the trial court found Appellant to be a career offender.-3- Sufficiency of

Evidence

Fi rst, Appellant contends that the evidence was insufficient to support his conviction for selling cocaine . Specifi cally , he alle ges tha t th e evidence is insufficient because the proof established that it wa s Tosha B urnett, not the Appellant, who delivered the cocaine to Detective Watson. Furthermore, the Appellant arg ues that the evidenceis insuffic ient bec ause the re was a contradiction in the testimonyof Burnett and Watson as to whether Vondel Hickerson ha nded the cocaine directly

to Burne tt or whet her he f irst hand ed it to App ellant, who then handed or gav e it to Burnett for delivery

to Watson.

When a defendant challenges the suf ficiency of

the evidence, this Court

is obliged to review that claim according to certain well-se ttled principles. A verdict of guil ty, render

ed by a jury

and

“ approved

by t he trial j udge, a

ccredits the test

imony of the ” St

ate’s witnesses a

nd resolv es al l conflic ts in the testimony in favor of the State. State v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994); Statev. Harr

is , 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloa ked witha presumption of innocence, the jury verdict of guilty re

moves this presumption “and replaces it with one of guilt.” State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). He nce, on ap peal, the burden of proof rests with the defendant to demonstrate the insufficienc y of the convicting evidence. Id

. The rele

vant ques tion the re

viewing court mus t answer

is whethe r any rationa l trier of fact could have found the accused guilty of every element of the offense bey ond a reasonable doubt. See Tenn. R. App. P. 13 (e); Harris , 839 S.W.2d at 75. In making t

his decis ion, we a

re to ac cord the

State “the strong est leg itima te view of the evidence as well as all reasonable and legitimate infe rences that may

be drawn therefrom.” Tuggl e , 639 S.W.2d at 914. As such, this Court is precluded from re-weighing or reconsidering the evidence when evaluating the convicting proof. State v. Tilson , 929 S.W.2d 380, 383 (Tenn. Cr im . App. 1996); S tate v. Mattews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own “inferences for those dra wn by the trier of

fact from circumstantial evi denc e.” Matthews , 805 S.W.2d at 779. In this case, Appellant was convicted of selling coca ine. In order to prove that this offe nse occurred, the State was required to prove that Appellant knowingly gave cocaine to Detec tive Watson in exchange for money

. See Tenn. Code Ann. § 39-17-417(a)(3). Appellant concedes that he approached Watson’s vehicle, asked Watson what he nee ded, and, when Watson replied “a fifty,” went bac k to Vondel Hickerson to obtain the drugs. I t is also undisputed that, af ter Tosha Burnet t gavethe drugs t o Wat son i n exc hange for fifty dollars, she gave the money

to Appellant. However, Appellant contendsthat bec ause he d id not deliv er the c ocaine t o Watson an d becau se there is a dispute regarding whether

Vondel Hickerson hand ed the c ocaine t o Appella

nt, the evidence i s insufficient to convict him of selling cocaine. We disagree. While there is a contradiction in the testimony regarding whether Vondel Hickerson gave the cocaine to Appellant, we note that 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 ap

pellate courts. See State v. Mo

rris , 24 S.W.3d 788, 7 95 (Tenn . 2000); State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Cr

im. App. 19 87). How ever, in this case , it

is unnecessary

to resolve the dispute of

who-4-

gavethe coca

ine to Bu rnett. I t is undispu

ted that A ppellant agree d to sell co caine to

Watson. I

t is also undisputed t hat Ap pella nt th en retu rned t o the a rea whe re Vond el Hic kerso n was s tandi ng. Fi na ll y, it is undispu

ted that a fter she deliver ed the co caine to

Watson in exchang e for fif ty dollars, she gave themoney to Appellant. Viewe d in the light most favo

rable to the State , the evid

ence is sufficient for a re asonable

juror to f

ind Appel lant gui l ty bey ond a reasonable doubt of selling cocaine . This issue

is meritle ss.

Chain of Custody Next, Appel lant contends that the State did not establish a proper chain of custody for th e cocaine that was i ntroduce d into evid

ence. Sp ecifica

ll y, Appellant claims that a proper chain of custody was not established becau se the proof shows tha

t the coc aine wa s placed

in a cabi net in Captain Mike Hut chins’s offi ce, but Captain Hutchins did not testify. Fur thermore, Appellant argues that a proper chain of custody was not e stablishe d becau se several people had access to the evide nce vault at the Police Department where the coca ine was placed after it had been ana lyzed by the Tennessee Bureau of I

nvestigations. We disagree. Before tangible evidence may

be introduced, the party offe ring the evidence must either call
a witness who is able to identify the evidenc e or must establish an unbroken chain of custody

. State

v. Hollo ma n , 835 S.W.2d 4 2, 46 (Te nn. Crim. A

pp. 1992) . Howeve

r, “the i dentity

of tang ible evidence need not b e proven bey ond all pos sibility

of doubt, and all possibility of tampering need notbe excluded.” Id. Also, the f ailure to call all of the witnesses who handled the evidence does notnecessarily

preclude its admission into evidence. See State v. Johnson , 673 S.W.2d 87 7, 881 (Tenn. Crim. App. 1984 ). Rather , “it is suf ficient i f the fa

cts establish a reasonable assurance of the identity of the evidence.” State v. Woods , 806 S.W.2d 205, 212 (Tenn. Crim. App. 1990). “Whether the required

chain of custody has bee

n sufficiently established to justify the admission of evidence is a matter committed to the sound discretion of the trial court, and the court’s determination will not be overturned in the absence of a clea rly mistaken exercise of tha tdiscretion.” Holloman , 835 S.W.2d at 46. Appellant challen ges the

chain of custody at t wo point s. First, he challenges the point at which Ca pt ai n M ik e H ut ch in s h ad th e c oc ai ne in hi s f il in g c ab in et be ca us e H ut ch in s d id no t t es ti fy. Ho wever, Officer Perry

testified that he gave the cocaine to Hutc hins and personally ob serve d Hutchins place the evidence in the fili ng cab inet in his office. Perry testified that days later , when he retrieved the bag from the ca binet in Hutchins’s office, it was in the same condition as when he witnessed Hutchins p

ut it there. Although Hutchins did not testify at trial, his link in the chain wa s sufficie ntly established by the testimony of Officer Perry . Second, Appellant challenges the point where the cocaine was lock ed in an e vidence vault at the Polic e Depar

tment bec ause sev eral pe ople have accessto that va

ult. Howe ver, there was no evidence on the bag of tampering, and Officer Perry testified that it was in the same condition as when he put it in the vault. Therefore, the trial court didno t abuse its discretion in ruling that the identity a nd integrity of

the evidence had been sufficie ntly establish ed. This is sue is with out merit.-5- Sentencing Fi na ll y, the Appellant

argues that he was improperly sentenced as a career

offende r. With respect to class C felonies, a defendant may be sentenced as a caree r offender if h e h as “any combination of six (6) or more class A, B, or C prior felony convictions.” Tenn. Code Ann. § 40-35- 108(a)(1). However, “[c]onvictions for multiple felonies com mitt ed as part of a single course of conduct within twenty -four ( 24) hoursconstitute one (1) conviction for the purpose of determining prior convictions.” Id. § 108(b)( 4). Appellant asse

rts that b ecaus e on April 30, 1993 he received six felony convictions for selling cocaine, the convictions should not be agg regated so as to classify him as a career offende

r. However, the presentence r eport reflects that each of the six convictions is ba sed on conduct that occurred on separa te dates , each mo

re than t wenty -four hours apar

t. Therefore, the trial court

properl y consider ed each of the six co nvictions dated Ap ril 30, 199 3 as a separa te convi ction and pr operly sentenc ed Appellant as a career off ender. This issue is without merit. Accordingly , the judgment of the trial court is affirmed.

___________________________________ JERRY L. SMITH, JUDGE