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

ctober 18, 2000 Sessi

on

STATE OF TENNESSEE v. ERNEST E. PRIDE

Appeal as of Right from the Criminal Court for Davidson County

No. 99-A-331 Seth Norman, Judge

No. M2000-00319-CCA-R3-CD - Filed January 11, 2001

The appellant, Er

nest E. Pride, was convicted by a jury in the Davidson County Criminal Court of

one count of tamperin

g with evidence

, a class C fel ony; one count of posse ssion of less than .5

grams of cocaine with the intent to sell, a class C felony; one count of simple possession of marijuana, a class A misdemeanor; one count of criminal trespas s, a class C misdemeanor; one count of resisting arrest, a class B misdemeanor; and one count of unlawful possession of drugparaphernalia , a class A misdemeanor. The trial court sentenced the appellant, as a Rang e II o ffender, to the following terms of incarceration in the Tennessee Department of Correction: eight y ears for the tampering

with evidence conviction, eight years for the possession of cocaine with intent to sell conviction, eleven months and twe nty- nin e days for the possession of marijuana conviction, thirty days for the criminal trespassconviction, and six months for the resisting arrest conviction. Additionally, the trial court ordered the appellant to se

rve all of the sentences concurrently. The trial court entered a verdict of notguilty for the possession of drug paraphernalia. The appellant raises the following issues for our review: (1) whether the evidence contained in the record i s suffi cie nt t o su ppo rt a fin din g by a rational trier of fact that the appellant is guilty bey ond a reasonable doubt of possession of less than .5 grams of cocaine with in tent to sell

and tampering w

ith the evidence a

s charged in the

indictment; and (2) whether the trial court imposed excessive sentences for the convictions of tampering with evidence and possession of less than .5 grams of cocaine with intent to sell. Based upon our review of the record an

d the parties’ br

iefs, we affirm

the judgment of th

e trial court.
Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which T HOMAS T. W OODALL , and R OBERT W. W EDEMEYER , JJ., joined.
Ralph Newman and Jeffrey A. DeVasher, Nashville, Tennessee, for the appellant, Ernest E. Pride.

Paul G. Summers, Attorney General and Reporter, Russell S. Baldwin, Assista

nt Attorney G

eneral, and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION-2- I. Factual Backgr

ound On October 31, 1998, at 6:30 a.m., Officer Brian Tomblin and Sergeant Brion DeLap noticed the appellant, Ernest E. Pride, and t hree o ther individuals gathered around the appellant’s

car at the Edgehill housing project in Nashville. The officers were

responding to

several complai

nts about drug trafficking in the area. There were “no trespa ssing” signs around the area where the group was gathered. Officer Tomblin had worked in the area for three years and knew that none of the individuals lived in E dgehill. When the f

our individuals saw

the officers, th

ey immediate

ly dro ve aw ay.

The officers pursued the group and signaled to th

e appellant to pull

his vehicle

over to the side of the road. The appellant complied. Sgt. DeLap approached the vehicle on the driver’s side and Office Tomblin approached on the passenger side. Sgt. DeLap asked the appellant for proof of driver’s license an d registr ation. The appellant reached for the glove compartment where, he stated, his driver’s license was located. Both of the officers noticed that the appellant kept three of the fingers of

his right hand closed

in a fist, but he exten

ded his thumb and ind

ex finger in orde

r to open the glove compartment. When the appellant did so, the officers noticed several white, rock-like substances that appeared to be crack cocaine in the appellant’s right hand.

Sgt. DeLap asked the appellant what was in his hand. The appellant put his hand to his mouth and shoved into his mouth all but one of the “rocks” contained in his hand. One of the “rocks” fell to the floor of the car. The officers pulled the appellant from the vehicle and ordered the appellant to spit ou

t the substance. T

he appellant ref

used and kept his mo

uth closed. At some point, the app ellant managed to swallow the rocks. The appellant struggled with the officers and submitted to arrest only after being subjected to pepper spray

.
Officer Tomblin retrievedthe fallen “rock” from the vehicle. He fie

ld tested a small portion of the substance a nd it tested positive for cocaine. Donna Flowers, a forensic chemis

t with the Tennessee B

ureau of Inv

estigation, conf

irmed that the subst

ance was a

.05 gram rock of crack cocaine.

A jury in the Davidson County Criminal Court convicted the appellant of one count of tampering with e

vidence, a clas s C felony; on e count of possession of l ess than .5 grams of cocaine with the intent to sell, a class C felony; one count of simple possession of

marijuana, a cla

ss A misdemeanor; one count of criminal trespass, a class C misdemeanor; one count of resisting arre

st,

a class B misdemeanor; and one count of unlawful possession of d rug parapher

nalia, a class A misdemeanor. The trial court se ntenced the appe

llant, as a Range II offender, to the

following terms of incarcerati on in the Te nnessee Dep artment of C orrection: eight years for t he tamperin g wit h evidence conviction, eight years for the possession of cocaine with intent to sell conviction, eleven months and twenty-nine

days for the

possession of mari

juana conviction,

thirty days for the criminal trespassconviction, andsix months for the resisting arrest conviction. Additionally, the trial court ordered the appellant to serve all of the sentences concurrently. The tria l court entered a verdict of

no tguilty for the possession of drug paraphernalia. On a ppeal, the appellant raises the fol lowin g issues for our review: ( 1) whether the e vidence contain

ed in the record i

s s ufficient to

support a1 The appel l ant does not contest his convi

ctions for simpl

e possession of mar

ijuana, crimina l tres pass, or resisting arrest, nor does he contest his sentences for those convictions.

-3- finding by a rational trier of fact that the appellant is guilty beyond a reasonable doubt of possession of less than .5 grams of cocaine with intent to sell an

d tampering with t

he evidence as c

harged in the indictment; and (2) whether the trial court erred by imposing excessive sentences for the appellant’s convictions of tampering wit h evidence and po

ssession of less tha

n .5 grams

of cocainewith intent to sell. 1

II. Analysis A. Sufficiency of the Evidence Init ial ly, we note that

the jury, as

the trier of fac

t, resolves all

questions concerning witness credibility and the weight and value to be given the eviden ce, as well as all factual issues raisedby the evidence; this court makes no such determinations. State v. Pruett ,788 S.W.2d 559, 561 (Tenn. 1990). Acco rdi ngly, appellate courts will grant the State the strongest legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 198 3). Moreover, we will not reweigh or reevaluate the evidence presented at trial. State v. Matthews , 80 5 S.W.2d 776, 779 (Tenn. Crim. App. 1990). In contrast to the presumption of innocence an accused enjoys at trial, an a ppe llant bears a presumption of guilt on appeal. Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Therefore, the appellant carries the burden of demonstrating why the evidence adduced at trial is insuffici ent to support the jury’s findings. Id.

To uphold the appella nt’s convictions,

we must determine if any reasonable trier of fact could have found t

he essential ele

ments of the offe

nse beyond a

reasonable

doubt. Jackson v. Virginia
, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). Additionally, a jury may convict an accused

based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evide nc e. State v. Dykes , 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). However, when

a guilty verdict results from purely c ircu mstan tial evidence, the facts and circumstances of the offense “must be so strong and

cogent as to exclu

de every o ther reasonable

hypothesis sa

ve the guilt of the [appellant].” State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971).

In order to sustain a conviction of possession of crack cocaine with intent to sell, the Stateneeded t o prove that the ap pellant knowingl

y possessed

a controlled subst

ance, in this case crack cocaine, with the intent to sell that controlled substance. Tenn. Code A nn. § 39-17- 417(a)(4)(1997). The State adduced proof at trial that the appellant did not live in the Ed geh ill housing projects. Nonetheless, the police observed the appellant and thr

ee others “hang

ing out” in the Edgehill area at 6:30 a.m. It was obvious to the police that the individuals were not there on any legitimate business. See State v. Head , No. 01C01-9806-CC-00263, 1999 WL 343910, at *3 (Tenn. Crim. App . at Nas hvi lle , Ju ne 1 , 19 99) . Ad dit ion all y, the police officers testified that Edgehill is a high drug trafficking

area that the police had targeted because of complaints by neighbors. See State

v. Brown , 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995). Also, the appellant and the other individua

ls2 The appellant was ind icted for the possession of rolling pap ers, used in the rolling of marijuana cigarettes.

-4- left the area as soon as they noticed the police. Moreover, the police noticed six to ten white “roc

ks” in the appellant’s hand. Furthermore, Officer Tomblin testified that all of the rocks, which appeared to be roughly the same size as the rock recovered, could be broken down into two or three additional rocks for resale. See Head , No.01C01-9806-CC-00263, 1999 WL 343910, at *3. Accordingly, the appellant had approximately .5 grams of crack cocaine in his hand before he swallowed some of the other rocks. Id. Also, no evidence of drug paraphernalia for the appellant’s personal use of crack rocks was introduced at trial. See Brown , 915 S.W.2d at 8. 2

However, the appellant ar gues that State v. Jones , No. 02C01-9601-CC-00030, 1996 WL 629199, at *3 (Tenn. Crim. App. at Jackson , October 31, 1996

), is controlling in this instance. We d isagree. Jon es is distinguishable from the present case. In Jones , the defendant tr ied to

swa llow cocaine but was f orced by th

e police to spit out th

e substance. This

court opined that, because there was no evidence adduced at trial as to the significance of the a mount of coc aine retrieved or testimony stating whether the amount seized would be appropriate solely for personal

use or more likely for resale, the number of uses in the amount seized, or its w orth, the defendant could not be convicted of possession of cocaine with intent to sell. Id. However, in the present case, Officer Tomblin testified that each of the rocks in the appellant’s hand appeared to be a $20 rock. Add iti ona lly, Officer Tomblin testified that each rock could be cut into two or three smaller rocks for resale. Based upon all of the foregoing evidence, we conc lude that a jury could reasonably f ind that the appellan

t possessed the cr

ack cocaine wit

h intent to sell. This i

ssue is without merit

.
Add iti ona lly, to convict the appellant of tampering with evidence, the State needed to establish that the appellant, knowing that an investigation or official proceeding was pending or in progress, altered, destroyed, or concealed any record, document, or thing with the inte

nt to impair its ve rity, legi bility, or availability as evidence in the investigation or of ficial proceeding. Tenn. Code Ann. § 39-16-503(a)(1)(1997). This court has stat ed, “[f]or something

to be destroy

ed within the context

of [Tenn. Code Ann.] § 39-16-503, its evidentiary value must be ruined.” State v. Logan
, 973 S.W.2d 279, 282 (Tenn. Crim. App. 1998). Officer Tomblin testified that all the rocks in the appellant’s hand appeared to be approx imatel y the same size, shape, and color. Furthermore, the officers stated that the substance appeared to be rocks of crack cocaine. In response to Sgt. DeL ap’s question regarding what

was in the appella

nt’s hand, the app

ellant quickly

put his hand to his

mouth, shoved all butone of the rocks in side, and would not o

pen his mouth for the police. Both officers testified that the ap pel lant’s swallowing of the evidence hampered their investigation. Therefore, the jury could have reasonably found the appellant guilty of tampering with evidence.

B. Sentencing Our review of the length of the appellant’s sentence is de novo. Tenn. Code Ann. § 40-35-401(d) (1997). However, if the record reveals that the trial court adequately considered sentencing principles and al l relevant facts

and circumstanc

es, we will gran

t the trial c ourt’s determinations a presumption of corre ctness. Id. ; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). We consider the following factors in conducting our de novo review: (1) the evidence, if a ny,3 The trial court made no specific findings on the r ecord regarding why the enhan cement facto rs apply to the appellant. The trial c ourt simply state d, with regard to possessio n of cocaine with intent to sell and tampering w ith evidence , “The co urt finds that enha ncement fac tors 1, 8, and 13 [app ly].”

-5- received at the trial and the

sentencing hea

ring; (2) the pr

e-sentence re

port; (3) the princ

ip les of sentencing and arguments as to sentencing alternatives ; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties on enhancement and mitigating factors; (6) any statement by the defendant in his ow n behalf; and ( 7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also Ashby , 823 S.W.2d at 168. The appellant bears the burden of demonstrating the impropriety of his sentence(s). Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

The appellant ch

allenges the le

ngth of his

sentences for possession

of cocaine with intentto sell and tamperi

ng with evidence. We note that

the trial court sentenced the appellant as

a Range II multiple offender, and the appe llantdoes not challenge the trial court’s finding regarding the appropr iate range. Because the record reveals that the appe llant possesses two prior felony convictions,

we conclude that the trial court properly sentenced the appellant as a Range II offender

. Tenn. Code Ann. § 40-35-106(a)(1) & (c)(1997). As to the length of the sentences, both possession of cocaine with in

tent to sell and tamp

ering with evide

nce are class

C felonies. Tenn. Code Ann. § 39-17-417 (c)(2), 39-1 6-503(b). A ccordingly, th e applicabl e sentencin g range in this case was six to ten years.Tenn. Code Ann. § 40 -35-112(b)(3)( 1997). The trial c ourt sentenced th

e appellant to eight years incarceration for possession of coc aine with intent to sell and eight years incarceration for tampering with e

vidence. Thus, the

trial court sente

nced the appella

nt at the mid

poin t of the applicable range.

In sen ten cin g the app ell ant , th e tr ial cou rt c onc lus ive ly a pplied the following enhancement

factors: (1) the appellant has a previous history of cr imin al convictions or criminal behavior in addition to those necessary to estab lish the appropriate range; (8) the

appellant has a previous history of

unwillingness to comply with the conditions of a sentence involvin

g release in the community; and (13) the felony wascommitted while on a ny of the fol

lowing forms of r

elease status if such release is from a prior felony conv iction: (A) bail, if the appel lant is ultimately convictedof such prior felony; (B) parole; (C) probation; (D) work re lea se; (E) a ny other type of release into the community under the direct or indirect supervision of the Department of Correction

or local governmental authority. Tenn. Code Ann. § 40-35-114(1997). 3 Because the trial court made

no findings of fact supporting his application of the enhancement factors, we will review t h e appellant’s sentence de novo without a presumption of correctness. See Stat e v. Carter , No. M1998-00798-CCA-R3-CD, 2 000 WL 515 930, at *10 (Tenn. Crim. App. at Nashville, April 27, 2000).

The appellant does no t d i spute the application of enhancement factor (1) or enhancement

factor (13). B ecause the rec ord reflects tha

t the appella

nt has se veral misdemeanor convictions in addition to the two felony con

victions placing

him within

Range II, we agree that the trial court correctly applied enhancement factor ( 1). Tenn. Code Ann. § 40-35-114. Add iti ona lly,-6-

because the appellant admitted during the sentencing hearing that he committed the present offenses while on parole, we agree that enhancement factor (13) applies to the appe llant. Id. However, the appellant argues that the trial court misapplied enhancement factor (8). The appellant maintains that he had no previous history of unwillingness to comply with the conditions of a sentence involving relea se in the community simply because he committed the present offe nse while on parole. W e agree.

This court has stated that a violation of parole resulting

in the current co

nviction is notevidence of a pr

evious his toryof unwillingness to comply with the terms of release into the

com mun ity. State v. Hayes
, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995). However, the appellant admitted at

the sentencing hearing to using cocaine while on parole. See State v. Miller , No. 03C01- 9606-CR-002 41, 1997 WL 585749, at *3 (Tenn. Crim. App. at Knoxville, September 23, 1997). Moreover, the appellant admitted at the sentencing hearing that he had previously possessed cocaine while on bond for murder charges. See State v. Strickland , 885 S.W.2d 85, 89 (Tenn. Crim. App. 1993). These facts are

sufficient to

constitute a previous history of unwillingness. We conclude that the trial court correctly sentence d the a ppellant to eight years incarceration for his convictions of possession of cocaine with in tent to sell and tamp

ering with evide

nce. Thisissue is without merit.

III. Conclusion Based upon the f

oregoing, we

affirm the judg

ment of the trial c

ourt.

___________________________________ NORMA McGEE OGLE, JUDGE