IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 27, 2016

STATE OF TENNESSEE v. WILLIAM JERMAINE STRIPLING

Appeal from the Criminal Court for Knox County

No. 102315 G. Scott Green, Judge

No. E2015-01554-CCA-R3-CD – Filed June 16, 2016

_____________________________

William Jermaine Stripling (“the Defendant”) was convicted of two counts of sale of less 

than .5 grams of cocaine in a drug-free zone and two counts of delivery of less than .5 

grams of cocaine in a drug-free zone. His convictions merged, leaving him with one 

conviction for sale of less than .5 grams of cocaine in a drug-free zone. In a bifurcated 

proceeding, the Defendant‟s sentence was enhanced pursuant to the criminal gang 

offenses enhancement statute, Tennessee Code Annotated section 40-35-121. On appeal, 

the Defendant argues that the criminal gang offenses enhancement statute is facially 

unconstitutional. Specifically, the Defendant contends that the criminal gang offenses

enhancement statute violates due process because it is overly broad and void for 

vagueness and that it violates his First Amendment right to free association and 

expression. Additionally, the Defendant argues there was insufficient evidence to 

support his convictions. Upon review, we conclude that the criminal gang offenses

enhancement statute is unconstitutional because it violates substantive due process. 

However, we hold that the evidence was sufficient to support the Defendant‟s convictions

of sale and delivery of less than .5 grams of cocaine within a drug-free zone. The 

judgments of the trial court are affirmed in part, modified in part, and reversed in part.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed 

in Part, Modified in Part, Reversed in Part, and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which D. KELLY 

THOMAS, JR., J., joined, and JAMES CURWOOD WITT, JR., filed a separate concurring 

opinion.

Jonathan S. Wood, Knoxville, Tennessee, for the appellant, William Stripling.
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Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;

Charme Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

a. Guilt Phase

The Defendant was charged, via presentment, with one count of sale of less than .5 

grams of cocaine in a drug-free zone (school), one count of delivery of less than .5 grams 

of cocaine in a drug-free zone (school), one count of sale of less than .5 grams of cocaine 

in a drug-free zone (daycare center), and one count of delivery of less than .5 grams of 

cocaine in a drug-free zone (daycare center), (Counts 1-4). Additionally, Count 5 of the 

indictment alleged that the Defendant was a gang member and gave the Defendant notice 

that the State sought enhanced punishment under the criminal gang offenses enhancement 

statute, specifically Tennessee Code Annotated sections 40-35-121(b), (g), and (h)(1)(A).

At trial, Knoxville Police Department Officer Terry Pate testified that he was 

conducting an undercover patrol of the “Magnolia area” on August 26, 2010. Officer 

Pate was driving a pickup truck with a four-wheeler in the back, and he parked his truck 

in front of the “Gas House” on Magnolia Avenue. The Defendant approached Officer 

Pate‟s truck and made a comment about the four-wheeler, and Officer Pate informed the 

Defendant that the four-wheeler was inoperable. Officer Pate then told the Defendant 

that he was “looking for something.” The Defendant told Officer Pate to “pull around 

onto Linden”—a nearby street—and wait. Officer Pate complied.

After Officer Pate moved his truck, the Defendant again approached the vehicle, 

and Officer Pate told him that he was looking for “a [twenty].” Officer Pate explained 

that looking for “a [twenty]” meant that he was looking for twenty dollars‟ worth of crack 

cocaine. The Defendant reached into his pants, withdrew a plastic bag containing crack 

cocaine, and handed Officer Pate “a piece of it.” “Almost simultaneously” with the 

Defendant‟s giving Officer Pate the drug, Officer Pate gave the Defendant a twenty dollar 

bill. The Defendant told Officer Pate to be careful and made a few more comments about 

the four-wheeler, and Officer Pate then drove away.

Officer Pate drove to another location where he met Officer Jinks.1 He sealed the 

substance he received from the Defendant in a plastic bag and gave the bag to Officer 

 

1 Officer Jinks‟s first name is not included in the record.
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Jinks. Later, Officer Pate conducted a field test of the substance, which tested positive

for “cocaine base.” Officer Pate testified that the transaction with the Defendant took 

place within 1,000 feet of Knoxville Baptist Christian School and Kidz Inkorporated 

Preschool.

Officer Pate noted that his truck was equipped with a hidden camera that was 

pointed at the driver‟s side door and that it captured video of the transaction with the 

Defendant. However, there was no audio recording of the transaction. The video was 

played for the jury. The video showed a male, whom Officer Pate identified as the 

Defendant, approach the driver‟s side window. Officer Pate spoke to the Defendant and 

then drove to another location and parked his truck. Shortly thereafter, the Defendant 

again approached Officer Pate‟s car and looked into the back of Officer Pate‟s truck. The 

Defendant then placed his hand inside Officer Pate‟s truck, and Officer Pate drove away. 

Officer Pate testified that the video captured the transaction between himself and the 

Defendant.

Special Agent Ashley Cummings of the Tennessee Bureau of Investigation 

testified that she received a sealed envelope with a “rock-like substance” in connection 

with this case. Her test of the “rock-like substance” revealed that it contained .08 grams 

of cocaine base. She stated the substance is commonly referred to as crack or crack 

cocaine.

Robert Evans, an employee of Knoxville Baptist Christian School, testified that 

the school was located on Magnolia Avenue and that it was in existence on the date of the 

offense. Erica Williams, an employee of the Department of Human Services, Childcare 

and Adult Care Licensing, testified that Kidz Inkorporated Preschool was located on East 

Magnolia and that it was in existence on the date of the offense. Donna Roach of the 

Knoxville Utility Board Geographic Information Systems testified that the transaction 

between the Defendant and Officer Pate took place within 1,000 feet of Knoxville Baptist 

Christian School and Kidz Inkorporated Preschool.

The Defendant admitted that he was the person who approached Officer Pate‟s 

truck on the video. The Defendant recalled that he saw Officer Pate‟s truck pull into the 

parking lot and that Officer Pate “flagged [the Defendant] down.” Officer Pate told the 

Defendant that he needed twenty dollars‟ worth of “crack.” The Defendant told Officer 

Pate that he had spent “the last [five dollars] he had” on cocaine for his personal use. The 

Defendant also directed Officer Pate “to pull around back” so that his truck was not 

blocking access to the parking lot. Once Officer Pate moved his truck, the Defendant 

approached him again and gave Officer Pate the drugs he had previously purchased for 

himself and told Officer Pate to “go ahead and get started off of what I have.” Officer 

Pate then gave the Defendant twenty dollars and told the Defendant to go find enough 

crack cocaine for the both of them. Officer Pate then drove away, and the Defendant 
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understood that he would return fifteen minutes later so that they could get high together. 

However, Officer Pate never returned, so the Defendant spent the twenty dollars “on 

cigarettes, alcohol[,] and enough crack to get [him] through the night.” The Defendant 

said he did not know whether the substance he gave Officer Pate “was real or not.” The 

Defendant said he did not intend to sell drugs to Officer Pate.

On cross-examination, the Defendant denied asking Officer Pate about the fourwheeler. The Defendant also stated that he had the drugs in his hand, and he denied 

reaching into his pants to retrieve the drugs. The Defendant agreed that he handed drugs 

to Officer Pate, but he did not agree that he delivered drugs to Officer Pate. Further, the 

Defendant agreed that Officer Pate gave him money, but he said that it was not 

immediately after he handed Officer Pate the drugs.

The State called Officer Pate as a rebuttal witness. Officer Pate said he never 

discussed smoking crack cocaine with the Defendant. Officer Pate further stated that the 

Defendant pulled the drugs from “the inside of the front of his pants” before giving it to 

Officer Pate. Officer Pate observed that the Defendant had a bag containing more than 

one piece of crack cocaine in his pants but that the Defendant only gave Officer Pate one 

piece of crack cocaine. Based on Officer Pate‟s experience, he understood that

possessing that amount of drugs to be consistent with someone who sells drugs. Officer 

Pate explained that someone addicted to crack cocaine would not keep a reserve on hand 

but, instead, would use the drug as soon as they obtained it. Officer Pate also testified 

that the exchange of drugs and money was “almost together”; there was no delay between 

the Defendant‟s giving Officer Pate the drugs and the officer‟s paying the Defendant.

The jury convicted the Defendant as charged in the first four counts of the 

indictment. The trial court later merged Counts 2, 3, and 4 with Count 1.

b. Gang Enhancement Proceedings

In a bifurcated proceeding, Detective Tom Walker, of the Knox County Sheriff‟s 

Office (“KCSO”), testified that he was a member of the KCSO‟s Gang Intelligence Unit, 

which keeps track of gang members in the “east Tennessee area.” Detective Walker was 

accepted as an expert in gang identification. Detective Walker stated that the Gang 

Intelligence Unit utilized a “check-off sheet” to determine whether an individual was a 

gang member. Such considerations included whether the individual: admitted to gang 

membership, was certified as a gang member from another law enforcement agency, 

wore specific gang tattoos, had an ongoing association with known gang members, 

showed gang-specific hand signs, wore gang colors, or displayed gang graffiti in his jail 

cell. Each factor was given a point value, and if an individual achieved ten points on the 

check list, he was considered a gang member.
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Detective Walker explained that the Rolling 60s Crips was a splinter group that 

broke off from the West Side Crips in Los Angeles, California. The group had been 

present in Knoxville for approximately ten years, and the KCSO‟s Gang Intelligence Unit 

had identified forty-two members of the group in the Knoxville area. Antwain Holliday, 

Larry Winton, and Thomas Agnew were identified as members of the Rolling 60s Crips. 

Further, Detective Walker stated that the Defendant was identified as a member of the 

Rolling 60s Crips due to the fact that Rolling 60s Crips graffiti was found inside his jail 

cell; he had a book on the history of the Rolling 60s Crips in his cell; he had written 

letters to and received letters from other known gang members; he had been “arrested on 

a violent crime”; he had “a weapons arrest”; and he had a gang-specific tattoo. Detective 

Walker also noted that the Defendant had admitted to gang involvement in the letters that 

he sent from jail. Detective Walker interpreted the graffiti found in the Defendant‟s cell 

to say “Rich Rollin for Life,” meaning the Defendant was going to be a member of the 

Rolling 60s Crips for life. Additionally, the graffiti said, “OGC,” or “Original Gangster 

Crips,” meaning the Defendant claimed to be one of the original gang members in the

Knoxville branch of the Rolling 60s Crips. 

On cross-examination, Detective Walker acknowledged that inmates were housed 

in two-man cells. However, he explained that, when officers search an inmate‟s cell, they 

only “count” items found in the inmate‟s personal property box as evidence that the 

inmate is a member of a gang—they do not use items found lose in the cell to calculate 

the points against an inmate. Detective Walker noted that the inmate‟s cellmate could 

ostensibly gain access to an inmate‟s box, but he opined that such occurrence was “pretty 

slim” because the inmates were possessive of their property boxes. Detective Walker 

said he was “[ninety-nine] percent” sure the graffiti found in the Defendant‟s cell 

belonged to the Defendant. Detective Walker also noted that the Defendant‟s tattoo said 

“L.A.,” which Detective Walker understood to mean either “Linden Avenue” or “Los 

Angeles.” Both locations were associated with the Rolling 60s Crips. Detective Walker 

confirmed that the Defendant had not admitted to being a gang member or to having any 

affiliation with Antwain Holliday, Larry Winton, or Thomas Agnew.

Knox County Criminal Court Clerk, Richard Major, testified that he had certified 

copies of the following judgments: Larry Winton for felony sale of cocaine (offense date 

October 7, 2008); Thomas Agnew for six separate convictions for felony sale of cocaine 

(offense dates ranging from August 2, 2007, to October 7, 2008); Antwain Holliday for 

three counts of felony sale of cocaine (offense dates August 2, 2007, and August 20, 

2007) and one count of felony attempted sale of cocaine (offense date August 10, 2007). 

The judgments of conviction were entered into evidence.

The Defendant testified that he got his “L.A.” tattoo when he was twelve years old 

and that it symbolized “Linden Avenue” because he had always lived on that street. The 
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Defendant further stated that he did not have a lid on his personal property box in his cell, 

and he claimed that the documents with the graffiti did not belong to him. The Defendant 

opined that another inmate could have sent a letter using an envelope with the 

Defendant‟s identification number and signing the Defendant‟s name so that the contents 

of the letter would have been attributed to the Defendant. The Defendant denied being a 

gang member. On cross-examination, the Defendant denied writing any of the letters that 

were introduced during the instant proceeding. The Defendant said that, even though he 

had lived on Linden Avenue his entire life, he first heard of the Crips when he went to 

jail.

After deliberation, the jury found that the gang enhancement statute applied to the 

Defendant. Specifically, the jury found that the Defendant was guilty of a criminal gang 

offense. Further, the jury found that the Defendant was a criminal gang member because 

(1) the Defendant resided in or frequented a particular criminal gang‟s area, adopted their 

style or dress, their use of hand signs or their tattoos, and associated with known criminal 

gang members; and (2) the Defendant was identified as a criminal gang member by 

physical evidence such as photographs or other documentation. Finally, the jury found 

that the Defendant was not a leader in the criminal gang.

c. Sentencing Hearing

At the subsequent sentencing hearing, the Defendant argued that the gang 

enhancement statute was unconstitutional on the grounds that it violated due process 

because it was overly broad and void for vagueness and that it violated the Defendant‟s 

First Amendment right to free association. The trial court found that the statute was 

constitutional, stating that it did not punish mere association with a gang. Instead, the

trial court reasoned that the statute enhanced punishment for offenses committed by gang 

members in association with other gang members. The trial court sentenced the 

Defendant to eighteen years‟ incarceration, the first fifteen years to be served at one

hundred percent and the remaining three years to be served at thirty percent. The 

Defendant‟s motion for new trial was denied, and this timely appeal followed.

II. Analysis

Constitutionality of Criminal Gang Offenses Enhancement Statute

a. Waiver

Preliminarily, we note that there is no indication that the Defendant filed a pre-trial 

motion challenging the constitutionality of Tennessee Code Annotated section 40-35-121. 

According to the record, the Defendant raised the issue for the first time at the sentencing 

hearing, and he later raised the issue in his motion for new trial. This court has 
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previously stated that the failure to raise a constitutional challenge to a statute in a pretrial motion results in a waiver of the issue on appeal. State v. Rhoden, 739 S.W.2d 6, 10 

(Tenn. Crim. App. 1987); see also Tenn. R. Crim. P. 16(b)(2); State v. Farmer, 675 

S.W.2d 212, 214 (Tenn. Crim. App. 1984). However, we also note that the State did not 

raise the issue of waiver when the Defendant argued the constitutionality of the statute at 

the sentencing hearing, and the State does not argue waiver on appeal. Accordingly, we 

will address the merits of the Defendant‟s claim. See State v. Smith, 48 S.W.3d 159, 162 

n.1 (Tenn. Crim. App. 2000), perm. app. denied (Tenn. Dec. 27, 2000).

b. Due Process

The Defendant argues that Tennessee Code Annotated section 40-35-121 is

overbroad, and facially unconstitutional, because the statute requires no connection

between the underlying crime and alleged gang membership in order for the enhancement 

to apply. He further asserts that the statute is void for vagueness because it fails to 

provide adequate notice of what conduct is prohibited by the statute. The State argues 

that the statute is constitutional because the sentencing enhancement can only apply to 

“criminal gang offenses” as defined in Tennessee Code Annotated section 40-35-

121(a)(3).

Under Tennessee Code Annotated section 40-35-121(b), “[a] criminal gang 

offense committed by a defendant who was a criminal gang member at the time of the 

offense shall be punished one (1) classification higher than the classification established 

by the specific statute creating the offense committed.” Tenn. Code Ann. § 40-35-121(b) 

(2014). As applicable to this case, “criminal gang offense” is defined as follows:

A criminal offense committed prior to July 1, 2013 that:

(i) During the perpetration of which the defendant knowingly causes or 

threatens to cause death or bodily injury to another person or persons and 

specifically includes rape of a child, aggravated rape and rape; or

(ii) Results, or was intended to result, in the defendant‟s receiving income, 

benefit, property, money or anything of value from the illegal sale, delivery 

or manufacture of a controlled substance, controlled substance analogue, or 

firearm[.] 

Tenn. Code Ann. § 40-35-121(a)(3)(A) (2014). As defined in the statute, 

“Criminal gang” means a formal or informal ongoing organization, 

association or group consisting of three (3) or more persons that has: (A) 

[a]s one (1) of its activities the commission of criminal acts; and (B) [t]wo 
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(2) or more members who, individually or collectively, engage in or have 

engaged in a pattern of criminal gang activity.

Tenn. Code Ann. § 40-35-121(a)(1) (2014). The statute defines “pattern of criminal gang 

activity” as “prior convictions for the commission or attempted commission of, 

facilitation of, solicitation of, or conspiracy to commit” the following:

(i) Two (2) or more criminal gang offenses that are classified as felonies; or

(ii) Three (3) or more criminal gang offenses that are classified as 

misdemeanors; or

(iii) One (1) or more criminal gang offenses that are classified as felonies 

and two (2) or more criminal gang offenses that are classified as 

misdemeanors; and 

(iv) The criminal gang offenses are committed on separate occasions; and

(v) The criminal gang offenses are committed within a five-year period[.]

Tenn. Code Ann. § 40-35-121(a)(4)(A) (2014).

A “criminal gang member” is defined as follows:

[A] person who is a member of a criminal gang, as defined in subdivision 

(a)(1), who meets two (2) or more of the following criteria:

(A) Admits to criminal gang involvement;

(B) Is identified as a criminal gang member by a parent or guardian;

(C) Is identified as a criminal gang member by a documented reliable 

informant;

(D) Resides in or frequents a particular gang‟s area, adopts their style or 

dress, their use of hand signs or their tattoos and associates with known 

criminal gang members;

(E) Is identified as a criminal gang member by an informant or previously 

untested reliability and the identification is corroborated by independent 

information;
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(F) Has been arrested more than once in the company of identified criminal 

gang members for offenses that are consistent with usual criminal gang 

activity.

(G) Is identified as a criminal gang member by physical evidence such as 

photographs or other documentation[.]

Tenn. Code Ann. § 40-35-121(a)(2) (2014). 

Our courts are charged with upholding the constitutionality of statutes whenever 

possible. State v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007). When analyzing the 

constitutionality of a statute, we begin with the presumption that the statute is 

constitutional. Id. (citing Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003)). The 

constitutional interpretation of a statute is a question of law which we review de novo. 

Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009).

We first address the Defendant‟s assertion that the statute is vague. “A statute 

may be void for vagueness if it is not „sufficiently precise to put an individual on notice 

of prohibited activities.‟” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001) (quoting 

State v. Wilkins, 655 S.W.2d 914, 915 (Tenn. 1983)). Criminal statutes are construed 

according to the fair import of their terms. Id. “Due process requires that a statute 

provide „fair warning‟ and prohibits holding an individual criminally liable for conduct 

that a person of common intelligence would not have reasonably understood to be 

proscribed.” Id. 

As stated above, section 40-35-121(b) provides that “[a] criminal gang offense 

committed by a defendant who is a criminal gang member at the time of the offense shall 

be punished by one (1) classification higher than the classification established by the 

specific statute creating the offense committed.” Pertinent to this case, a “criminal gang 

offense” is defined as “[a] criminal offense committed prior to July 1, 2013 that . . .

[r]esults, or was intended to result, in the defendant‟s receiving income, benefit, property, 

money or anything of value from the illegal sale, delivery, or manufacture of a controlled 

substance, controlled substance analogue, or firearm[.]” Tenn. Code Ann. § 40-35-

121(a)(3)(A) (2014). The terms used in the statute are defined in the code or are capable 

of ready understanding. A “criminal offense” is conduct that “is defined as an offense by 

statute, municipal ordinance, or rule authorized by and lawfully adopted under a statute.” 

Tenn. Code Ann. § 39-11-102(a) (2014). The remaining terms of the statute are defined 

elsewhere in the code. See Tenn. Code Ann. §§ 39-11-106(a)(1) (defining “benefit”), -

106(a)(11) (defining “firearm”), -106(a)(28) (defining “property”); see also Tenn. Code 

Ann. §§ 39-17-402(4) (defining “controlled substance”), -402(6) (defining “deliver”), -

402(15) (defining “manufacture”); Tenn. Code Ann. § 39-17-454(a) (defining “controlled 
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substance analogue”). “Income” is not defined in the criminal code, but the term is 

capable of ready understanding.

Upon review, we conclude that the statute is sufficiently precise to provide fair 

warning as to conduct that is covered by the statute. In short, the statute applies to a gang 

member who sells, delivers, or manufactures a controlled substance and where the 

transaction results, or was intended to result, in the defendant‟s receiving some sort of 

compensation for that service. A person of common intelligence would be able to 

understand the plain meaning of the statute, and it is not void for vagueness. 

Next the Defendant argues that the statute is unconstitutionally overbroad because 

it requires no nexus between the criminal activity and the Defendant‟s gang membership 

in order for the enhancement to apply. The Fourteenth Amendment to the United States 

Constitution guarantees that no “State [shall] deprive any person of life, liberty, or 

property, without due process of law[.]” U.S. Const. amend. XIV, § 1. Article I, section 

8 of the Tennessee Constitution “has consistently been interpreted as conferring identical 

due process protections as its federal counterparts.” Mansell v. Bridgestone Firestone 

North American Tire, LLC, 417 S.W.3d 393, 407 (Tenn. 2013). Due process 

encompasses both procedural and substantive protections. Id. “The most basic principle 

underpinning procedural due process is that individuals be given an opportunity to have 

their legal claims heard at a meaningful time and in a meaningful manner.” Id. (quoting 

Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006)) (internal quotation marks 

omitted). In contrast, “substantive due process bars oppressive government action 

regardless of the fairness of the procedures used to implement the action.” Id. at 409. 

“Unless a fundamental right is involved, the test for determining whether a statute 

comports with substantive due process is whether the legislation bears „a reasonable 

relation to a proper legislative purpose‟ and is „neither arbitrary nor discriminatory.‟” 

Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994) (quoting Nebbia v. New York, 291 

U.S. 502, 537 (1934)). 

This court has previously examined the constitutionality of Tennessee Code 

Annotated section 40-35-121 in State v. Devonte Bonds, No. E2014-00495-CCA-R3-CD, 

2016 WL 1403286 (Tenn. Crim. App. Apr. 7, 2016). In that case, this court noted that 

the General Assembly clearly had the authority to enact laws proscribing the harmful 

effect of criminal gangs. Devonte Bonds, 2016 WL 1403286, at *25. However, the court 

concluded that Tennessee Code Annotated section 40-35-121(b) was not reasonably 

related to that purpose and therefore did not satisfy the requirements of substantive due 

process. Id. As stated by this court, 

. . . It simply cannot be maintained that a statute ostensibly intended to 

deter gang-related criminal conduct through enhanced sentencing is 

reasonably related to that purpose where the statute in question is 
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completely devoid of language requiring that the underlying offense be 

somehow gang-related before the sentencing enhancement is applied. 

Without a nexus requirement, Section 40-35-121(b) directly advances only 

the objective of harsher treatment of criminal offenders who also happen to 

members of a criminal gang. Because Section 40-35-121(b) fails to even 

obtusely target gang-related criminal activity, it lacks a reasonable 

relationship to achieving the legitimate legislative purpose of deterring 

criminal gang activity and therefore violates the principles of substantive 

due process.

Id. This court also concluded that the statute violated substantive due process principles 

because it “imposes mandatory punishment on an eligible defendant by imputing to him 

responsibility for the criminal activity of the gang as a collective without requiring the 

defendant‟s knowledge of and intent to promote such activity.” Id. at *26; see also

Scales v. United States, 367 U.S. 203, 224-25 (1961) (“In our jurisprudence guilt is 

personal, and when the imposition of punishment on a status or on conduct can only be 

justified by reference to the relationship of that status or conduct to other concededly 

criminal activity . . . that relationship must be sufficiently substantial to satisfy the 

concept of personal guilt in order to withstand attack under the Due Process Clause.”)

Upon review, we agree that Tennessee Code Annotated section 40-35-121(b) 

violates substantive due process principles. Without a requirement that the offense be 

related to the Defendant‟s criminal gang membership, we fail to comprehend how 

Tennessee Code Annotated section 40-35-121(b) is reasonably related to the goal of 

deterring criminal gang activity. The statute unconstitutionally abridges substantive due 

process.

c. First Amendment

Next, the Defendant argues that Tennessee Code Annotated section 40-35-121 is 

overbroad and violates his First Amendment rights to freedom of expression and 

association. The Defendant contends that, because Tennessee Code Annotated section 

40-35-121(b) “without showing that the charged crime is in any way related to the 

defendant‟s alleged gang affiliations[,]” the statute “criminalizes associations protected 

by the First Amendment by creating a penalty for exercising these constitutional rights.” 

The State argues that the statute does not punish a criminal defendant simply for 

exercising his constitutional freedom of association. Instead, the State asserts that the 

statute punishes defendants who are members of a gang and commit a “criminal gang 

offense” as defined in the statute.

“A statute may be challenged as overbroad when it reaches a substantial amount of 

constitutionally protected conduct.” Burkhart, 58 S.W.3d at 700 (citing Village of 
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Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). “A 

statute may be invalid on its face if it inhibits the exercise of First Amendment rights and 

if the „impermissible applications of the law are substantial when judged in relation to the 

statute‟s plainly legitimate sweep.‟” Id. (quoting City of Chicago v. Morales, 527 U.S. 

41, 55 (1999)) (internal quotation marks omitted). In order to show that a statute is 

overbroad, a defendant must first show that the statute involves constitutionally protected 

conduct. Id. “If the statute reaches a substantial amount of constitutionally protected 

conduct, a defendant must then „demonstrate from the text of the law and actual fact that 

there as a substantial number of instances where the law cannot be applied 

constitutionally.‟” Id. (quoting State v. Lyons, 802 S.W.2d 590, 593 (Tenn. 1990)).

The United States Supreme Court has recognized the “freedom of association” in 

two distinct lines of cases. Roberts v. United States Jaycees, 468 U.S. 609, 617 (1984). 

The first line of cases refers to a right of “intimate association.” Id. at 618. “Intimate 

association” is the “choice to enter into and maintain certain intimate human 

relationships . . . .” Id. at 617-18. In the second line of cases, the United States Supreme 

Court recognized “expressive association” or “the right to association for the purpose of 

engaging in those activities protected by the First Amendment—speech, assembly, 

petition for redress of grievances, and the exercise of religion.” Id. at 618. However, the 

right to associate for expressive purposes is not absolute, and the government may 

infringe upon that right by way of “justifiable regulations adopted to serve compelling 

state interests, unrelated to the suppression of ideas, that cannot be achieved through 

means significantly less restrictive associational freedoms.” Id. at 623.

Turning to this case, contrary to the Defendant‟s assertions, Tennessee Code 

Annotated section 40-35-121 does not prohibit an individual from exercising his or her 

right of expressive association by joining a gang. Indeed, by the plain language of the 

statute, it cannot be applied to a defendant simply because the defendant was a member 

of a gang. Instead, the statute creates an enhanced punishment for defendants who 

commit one of the defined “criminal gang offenses” and who were also a member of a 

gang. Committing a criminal gang offense is not constitutionally protected conduct. See

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (“The First Amendment 

does not protect violence.”); United States v. Chaidez, 916 F.2d 563, 564 (9th Cir. 1990) 

(drug trafficking is “not even arguably constitutionally protected.”). Therefore, the 

statute does not reach a substantial amount of constitutionally protected conduct.

To the extent that the Defendant argues that the statute is overbroad because it 

does not require “showing that the charged crime is in any way related to the 

[D]efendant‟s alleged gang affiliations[,]” that argument is addressed above under the 

due process analysis. However, the Defendant‟s claim that Tennessee Code Annotated 
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section 40-35-121 violates his First Amendment rights to association and expression is 

without merit. 

Sufficiency of the Evidence

Next the Defendant argues that there was insufficient evidence to support his 

convictions for sale and delivery of less than .5 grams of cocaine in a drug-free zone

because the video of the drug transaction did not clearly show the intent of the parties 

involved. He contends that Officer Pate gave him twenty dollars in order to buy cocaine 

and that he intended to return with the drugs in order to smoke with Officer Pate. The 

Defendant asserts that this explanation of the transaction was “just as likely to have 

occurred” as the State‟s theory that the Defendant sold drugs to Officer Pate. The State 

contends that there is sufficient evidence to support the Defendant‟s convictions. We 

agree with the State.

Our standard of review for a sufficiency of the evidence challenge is “whether, 

after viewing 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.” 

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Tenn. R. 

App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence 

are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This

court will not reweigh the evidence. Id. Our standard of review “is the same whether the 

conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331 

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 

2009)) (internal quotation marks omitted).

A guilty verdict removes the presumption of innocence, replacing it with a 

presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914 

(Tenn. 1982). The defendant bears the burden of proving why the evidence was 

insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at 

914. On appeal, the “State must be afforded the strongest legitimate view of the evidence 

and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 

S.W.3d 514, 521 (Tenn. 2007). 

Tennessee Code Annotated section 39-17-417(a) states, in pertinent part, “It is an 

offense for a defendant to knowingly . . . (2) [d]eliver a controlled substance; [or] (3) 

[s]ell a controlled substance.” Cocaine is a Schedule II controlled substance. See Tenn. 

Code Ann. § 39-17-408(b)(4) (2010). The drug-free zone statute states:

A violation of § 39-17-417 . . . that occurs on the grounds or facilities of 

any school or within one thousand feet (1,000‟) of the real property that 

comprises a public or private elementary school, middle school, secondary 
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school, preschool, child care agency, or public library, recreational center 

or park shall be punished one (1) classification higher than is provided in § 

39-17-471(b)-(i) for such violation. 

Tenn. Code Ann. § 39-17-432(b)(1) (2010).

In this case, the Defendant essentially asks us to make a credibility determination 

between his version of the transaction and Officer Pate‟s. Such credibility determinations 

are left to the trier of fact, and we will not reweigh or reevaluate the evidence on appeal. 

See Bland, 958 S.W.2d at 659. Further, the evidence presented at trial, viewed in a light 

most favorable to the State, shows that the Defendant approached Officer Pate‟s vehicle 

and learned that Officer Pate wanted twenty dollars‟ worth of crack cocaine. The 

Defendant then instructed Officer Pate to move to another location. The Defendant again 

approached Officer Pate‟s car, removed .08 grams of crack cocaine from a bag concealed 

in his pants, gave the cocaine to Officer Pate, took twenty dollars from Officer Pate, and 

walked away. This transaction took place within 1,000 feet of Knoxville Baptist 

Christian School and Kidz Inkorporated Preschool. The evidence was sufficient to 

support the Defendant‟s convictions for sale and delivery of less than .5 grams of cocaine 

within a drug-free zone.

However, we note that the record only contains judgments for Counts 1 and 5. 

The judgment for Count 1 includes a note in the “Special Conditions” box that “Counts 2, 

3, and 4 merge into the conviction for Count 1.” However, the record does not contain 

judgments for Counts 2, 3, and 4, and no sentences were imposed for those counts. Our 

supreme court has recently provided guidance as to the proper procedure for recording 

judgments of merged convictions. See State v. Marquize Berry, No. W2014-00785-SCR11-CD, slip op. at 5 (Tenn. Nov. 16, 2015) (order granting Tenn. R. App. P. 11 

application for appeal). On remand in this case, the trial court should impose sentences 

for Counts 2, 3, and 4 and enter judgments for each conviction. Then, the trial court 

should note in the “Special Conditions” box on the lesser (or merged) conviction that the 

conviction merges with the greater offense. Id. Additionally, the merger should be noted 

in the “Special Conditions” box of the greater conviction. Id.

III. Conclusion

As the Defendant has not identified any error in the guilt phase of his trial, the 

Defendant‟s underlying convictions for sale and delivery of cocaine within a drug-free 

zone are affirmed. Further, we conclude that the Defendant has failed to show that 

Tennessee Code Annotated section 40-35-121 violates his rights to free association and 

expression under the First Amendment. However, because Tennessee Code Annotated 

section 40-35-121(b) violates substantive due process for lack of a nexus between the 

underlying offense and the Defendant‟s gang affiliation, the judgment in Count 5 is 
- 15 -

reversed and dismissed, the judgment in Count 1 is modified to reflect a conviction for a 

Class B felony and to remove reference to the gang enhancement statute, and the 

Defendant‟s enhanced sentence for Count 1 is vacated. The case is remanded to the trial 

court for resentencing in Court 1 and for sentencing and entry of judgments in Counts 2, 

3, and 4. 

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE