### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs September 7, 2016

STATE OF TENNESSEE v. ANDREW CURTIS BEARD

Appeal from the Circuit Court for Gibson County

No. 9414 Clayburn Peeples, Judge

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No. W2016

- 00223

- CCA

- R3

- CD

- Filed January 24, 2017

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A Gibson County Ci rcuit Court Jury convicted the A ppellant, Andrew Curtis Beard, of selling less than one

- half gram of cocaine, a Class C felony, and he was sentenced as a Range II, multiple o ffender to eight years i n confinement. On appeal, the A ppellant contends that the evidence is insufficient to support the conviction. Based upon the record and the parties‟ briefs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right ; Judgment of the Circuit Court Affirmed

N ORMA M C G EE O GLE

, J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER and D. K ELLY T HOMAS

, J R

., JJ., joined.

J. Daniel Rogers, Trenton

, Tennessee, for the appellant

, Andrew Curtis Beard.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant Attorney General ; Garry G. Brown , District Attorney General; and Jason Scott and

Jennifer McEwen , Assistant District Attorney s General, for the a ppellee, State of

Tennesse e.

OPINION

I. Factual Background

In March 2013, the Gibson County Grand Jury returned a two

- count indictment, charging the A ppellant with selling and delivering less than one

- half gram of cocaine on November 14, 2012. At the A ppellant‟s July 2015 trial, Danny Lewis testified that he currently was the Chief Deputy of the Gibson County Sheriff‟s Department but was the Assistant Special A gent in charge of the Twenty

- Eighth Judicial District Drug Task Force

in November 2012

. At some point, John “Pete” Beavers agreed to help the Drug Task- 2

-

Force by purchasing cocaine and other illegal drugs from drug dealers in the community. Beavers was paid $100 for each transaction he arranged “whether he made a buy or not.”

Deputy Lewis testified that on November 1 4, 2012, he and another officer met Beavers at a designated meeting area. Deputy Lewis searched Beavers and Beavers‟ vehicle, provided Beavers with money that had been photocopied, and wired Beavers with an audio transmission device and video recording eq uipment. Beavers placed a telephone call to Keith Cole, and Cole said he would meet Beavers at Beavers‟ ho me

. Beavers drove from the meeting place to his h ouse and waited outside for Cole to arr ive. When Cole pulled up, the A ppellant was with him.

Deput y Lewis testified that the drug transaction was video recorded, and the State played the video for the jury. Deputy Lewis said that after the drug buy, he searched
Beavers and Beavers‟ vehicle and that Beavers gave him a small baggie containing white powd er . The substance fiel d

- tested positive for cocaine, and Deputy Lewis delivered the baggie to the Tennessee Bureau of Investigation (TBI) Crime Laboratory.

On cross

- examination, Deputy Lewis acknowledged that Cole was the target of the drug buy and wa s driving the car that arrived at Beavers‟ home. Deputy Lewis said that

when he watched the video, though, he “didn‟t see K eith Cole reach across at all ” and

that the exchange appeare d to occur with the A ppellant. On redirect examination, Deputy

Lewis te stified that he did not see Beavers reach for anything from Cole or hand anything

to Cole in the video.

John “Pete” Beavers testified that he was forty

- five years old and used to be a drug

addict. He “got caught” with marijuana and offered to work fo r t he Drug Task Force. On November 14, 2012, Beavers telephoned Deputy Lew is and said he “had somebody.” Beavers met with Deputy Lewis

, Deputy Lewis gave Beavers $100 to buy crack cocaine

from Keith Cole , and Beavers telephone d Cole. Cole told Beavers that he did not have the drugs with him but that “he knew somebody that had them.” Beavers said he agreed

to meet Cole at Beavers‟ house so that the A ppellant could give him the drugs. A camera
was in the button hole of Beavers‟ shirt.

Beavers testif

ied that w hen the car pulled up at his house, Cole was driving

, and

the A ppellant was the passenger. Beavers said that he knew both men and that he had never had any prob lems or disagreements with the A ppellant. Beavers stated that he ga ve the money to t he Appellant, that the A ppellant gave him the cocaine, and that he did not

se e Cole pass the cocaine to the A ppellant. He stated, “I didn‟t get nothing from Mr.
Cole.” The cocaine was powder instead of crack, so Beavers asked if the A ppellant could “get any hard.” Cole and the A ppellant offered to “cook it up” for Beavers, but Beavers told them people were in his house. After the sale, Beavers met with Deputy Lewis. He- 3

-

acknowledged that he had multiple prior felony convictions for thefts, burglaries, a nd forgeries and that his last conviction was in 2004.

On cross

- examination, Beavers testified that Deputy Lewis search ed him before and after the drug buy. He said that while he was w aiting for Cole to arrive, the

A ppellant telephoned and said, “I‟m he re.” A couple of days before the transaction, Beard bought drugs from Cole , and the A ppellant was with Cole. Beavers estimated that he had twelve prior felony convictions.

Special Agent Forensic Scientist Brock Sain of the TBI testified as an expert in

controlled substance identification that he analyzed the powder in the baggie. It was cocaine and weighed 0.24 grams. At the conclusion of Agent Sain‟s testimony, the State

rested its case.

Easter Beard, the A ppellan t‟s mother, testified that she adop ted the A ppellant and that he was thirty

- six years old at the tim e of trial. She said that the A ppellant was probably born from “a crack mother” and that she thought he was born with an addi c tion

to crack cocaine. The A ppellant had never obtained treatme nt . She said, “We tried to get him in rehab, but not having any insurance it was hard.”

The jury convicted the A ppellant of selling cocaine , a Class C felony . After a sentencing hearing, the trial court sentenced him as a Range II, multiple offender to eight years in confinement.

II. Analysis

The A ppellant contends that the evidence is insufficient to support his conviction of selling cocaine because the video does not show conclusively that he sold the cocaine

to Beavers and because Beavers was not credible. The State argues that the evidence is sufficient. We agree with the State.

When an appellant challenges the sufficiency of the convicting evidence, the standard for review by an appellate court is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the

e ssential elements of the cr ime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence and all reasonable or legitimate inferences which may be

drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and the weight and value to be afforded the evidence, as well as all factual issues raised by the evidence, are resolved by the tri er of

fact. State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997). This court will not reweigh or reevaluate the evidence, nor will this court substitute its inferences drawn from the- 4

-

circumstantial evidence for those inferences drawn by the jury. Id. Becau se a jury conviction removes the presumption of innocence with which a defendant is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant has the burden of demonstrating to this court that the evidence is insufficien t. State v. Tuggle

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

A guilty verdict can be based upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Hall , 976 S.W.2d 121, 140 (Tenn. 1998). “The jury decide s the weight to be given to circumstantial evidence, and „[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are que stions primarily for the jury.‟” State v . Rice , 184 S.W.3d 646, 662 (Tenn. 2006) (quoting

Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review „is the same whether the conviction is based upon dire ct 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)).

The A ppellant claims that the evidence is insufficient because the video does not conclusively show him selling the cocaine to Beavers. We have reviewed the video recording. It shows Beavers leaving the meeting place with Deputy Lewis, arriving at his

home

, and waiting in his car. About ten minutes later, Beard can be heard telling Deputy Lewis that a Pontiac Grand Am is arriving. Beard gets out of his vehicle and approaches

th e passenger

- side of the Pontiac. An African

- American male is in the driver‟s seat, and

an African

- American male is in the passenger seat. One of them hands something to

Beavers . However, the exchange cannot be seen in the video. Beavers asks if they ha ve any “hard ,” and the driver asks Beavers if Beavers “knows how to cook it .” Beavers says no, so the passenger offer s to “cook it” for him . Beavers declines, thanks t he men, and

returns to his car. We agree with the A ppellant that the video does not co nclusively show him and Beavers exchanging cocaine and money.

Nevertheless, Beavers testified that he gave the money to the Appellant and that

the A ppellant gave him the drugs. He stated , “We met at my house and Mr. Beard give me the drugs. He had the drugs. I didn ‟t get nothing from Mr. Cole.” Questions concerning the credibility of the witnesses, the weight and value to be given the evidence

, as well as all factual issues raised by the evidence are resolved by the trier of f act, not this

court. Sta te v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Thus, the evidence is sufficient to support the conviction.- 5

- III. Conclusion

Based upon the record and the parties‟ briefs, we affirm the judgment of the trial

court.

____________________________________ NORMA MCGEE OGLE, JUDGE