### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON January 2000 Session
STATE OF TENNESSEE v. VINCEN T BOLDEN
Appeal from the Circuit Court for Henry County No. 12735 Julian P. Guinn, Judge

No. W1999-01481-CCA-R3-CD - August 4, 2000

This appeal arises out

of the defendant’s conviction for selling a controlled substance within 1,000 feet of a public or priv

ate school. He ch

alle nges the su fficiency of the evidence to suppo

rt his conviction. After careful review of the record, we conclude that the evidenc e is sufficient to support the defendant’s

conviction and af

firm the judgment of

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

A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G. R ILEY , JJ., joined. Jim L. Fields, Paris, Tennessee, for the appellant, Vincent Bolden.

Paul G. Summers, Attorne y General and Re

porter; Tara B. H

inkle, Assis tant Attorn ey General; Robert “Gus” Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

The defendant,

Vincent Bolden, was indicted by a Henry County grand jury for selling and delivering 0.1 gram of rock cocaine, a Schedule II substance, within 1,000 feet of public or priva

te school property

on September 20, 1997. After a one-day trial on March 1, 1999, the jury returned
a gu ilty verdict against the defendant on the count relating to the sale of cocaine. On March 31, 1999, the defendant was sentenced as a mu ltiple Range II offender to twelve years incarceration, fined $10,000, and ordered to pay restitution of $1,097.40. The defendant raises a single issue for
our consideration on appeal: whether the evidence presented at t rial was sufficient to support the jury's verdict. Upon our de novo review, we conclude that the evidence was sufficient to support the jury's verdict an

d affirm the judgme

nt of the trial cour

t.1 Agent Blackwell stat ed that the Office

of the Inspector General is the invest

igative agency over the Unit ed States Dep artmen t of Hou sing and Urban Develo pmen t ("HUD "). HUD runs or su bsidizes pu blic hous ing.
-2- FACTS

Donald Wayne Blackwell, a criminal investigator and agent for the Twenty-Fourth Judicial District Drug Task Force, testified as the State's first witness. In 1997, he was part of an undercover operation called “Operation Safe Home” that was working in conjunction with the federal Office of the Inspector General 1 to clean up crime in public housing. As part of its efforts, the Task Forc e focused on the Harrison Meadows Apartment Complex in Paris, Tennessee. The Task Force moved
an informant, Rhonda Swift, into apartment 5 of the Harrison Meadows projects and had Herschel Harvell, a federal agent with HUD, pose as Swift's boyfriend from time to time. As part of his cover
as Swift's boyfriend

, Agent Harvell

also pretended to be a criminal who had been released on parole. Agent Harvell would make drug purchases in the area and turn the evidence over to Agent Blackwell. Blackwell testified that he measured the distanc e from apartme nt 5 to the property of Inman School, located across the street from the Harrison Meadows projects, and found the distance to be 580 feet. Agent Blackwell recalled meeting Agent Harvell in Memorial Park on Sunday, September

21, 1997, and receiving a $20 rock of crack

cocaine from Ha

rvell. The rock Bl

ackwell received t hat day was marked a

nd admitted into evid

ence. At trial, A

gent Blackwell wa

s able to identify the defendant as Vincent "Truck" Bolden from his prior knowledge of the defendant.

On cross-examination, Agent Blackwell stated that no tapes or recordings were made of the drug transaction with t

he defendant, a

nd he (Blackwell)

didnotpersonally observe the transaction. He explained that dr

ug informants are

paid $100 each time they turn in a drug dealer, as long as the agent is able to make a case against the dealer. He stated that the school building itself is clo se to 1,000 fe et from apartment 5, but Blackwell also stated that the school property includes the surrounding areas where the students are.

The next witness for the State was Lisa J. Mays, a special agent forensic scientist for the Tennessee Bureau of Invest igation Crime Laboratory. Special Agent Mays conducted the laboratory analysis of the rock cocaine that was obtained during the undercover buy from the defendant. She testified that her test results showed that the rock contained 0.1 gram cocaine base.

RhondaK. Swift, the infor mant, was then ca

lled to testify on be

half of the State. She stated that she was working underco ver in another loc

ation when she wa

s brought to Paris, T

ennessee, to stay in apartment 5, se

ction 502, of the Ha

rrison Meadows Ap

artments. Agent Herschel H arvell was posing as her boyfriend. Ms. Swift testified that she met the defendant, who was not a resident of the complex, through his cousin, Nakia Upchurch. Shortly after meeting the defendant, Ms. Swift gave the defendant a

nd some of his

friends a ride to another county to buy beer, and the defendant made it clear

to her that he could “get anything [drugs] anybody needed,” including crack cocaine. On September 20, 1997 , Ms. Swift and Agen t Harvell held a cookout at their apartment and invited the defendant. Ms. Sw

ift telephoned the

defendant to see

if he was coming to t

he party and told h

im that she needed him to bring her something. When the defendant arrived at the apartment, Ms. Swift-3-

told him that she needed some crack cocaine. She did not remember what time of day it was when the defendant arrived at her apartment but did remember that he brought a woman and two toddlers withhim. The defendant then made a call onhis cellular phone, and a white Corsica arrived at the apartment about fifteen minutes later. Ms. Swift remembered seeing two black females in the car. Agent Harvell told the defendant that he wanted $20 worth of crack and gave Ms. Swift the money, which she gave to t

he defendant.

The defendant completed the transaction with the female sitting in the passenger side of the Corsica within view

of Ms. Swift. The de

fendant then ret

urned to the apartment and handed the crack co caine to Agent Ha rvell. Ms. Swift est

imated that about te

n to fifteen adults and children arrived in the afternoon for the cookout, and the defendant stayed

most of the day.

Ms. Swift stated that she had no felony convictions but did have a misdemeanor charge against her

for writing a bad check. She admitted that she used to be a crack addict but explained that she had enrolled in a drug rehabilitation program in 1993 to

get off drugs and began working withthe police at the end of that year. For each drug transaction she made as a confidential informant, Ms. Swift was paid $100. She worked undercover for four and one-ha

lf years but quit because her life had been in danger at least ten times. She had to leave the Harrison Meadows Apartments

after a man, who had been c harged as a result of Ms. Swift’s undercover work, recognized her. She was afraid he was going to shoot her.

On cross-examination, M s. Swift stated that she and Agent Harvell made one or two drug buys per week while at the Harrison Meadows projects. When pressed for

a more exact time that the defendant arrived on

the day of the cookout, Ms. Swift stated that she thought she had called the defendant sometime before n

oon. Although she c

ould not give the spe

cific time of the defendant’s
arr ival at the apartment, she thought it was fifteen or twenty minutes after the phone call, whic h defense counsel placed at 12:15 p.m. The defendant stayed at her apartment

except when Ms. Swift took him to pick up his aunt

’s grill. Ms. Swift gave the defendant’s cellular phone number and the license plate number of the white Corsica in her report. She did not

know if the two women in the Corsica were ever arrested.

The State’s last witnes s was Agent Hersc hel Harvell, Jr

., a special agent criminal investigator withthe Inspector General’s Office of HUD. Agent Harvell was part of “O peration Safe Home ,”
a joint effort with public housing authorities, local law enforcemen t, and federal a gencies to investigate

drugs and violent crimes in federal housing projects and subsidized housing. As part of this operation, Agent

Harvell and Ms. Sw

ift occupied apa

rtment 5 at Harrison Meadows, posing as boyfriendand girlfriend. A gent Harvell

identified the defendant as an individual he had dealt with. Agent Harvell recalled

that the defendant and another man came over on the morning of September 20, 1997. Ms. Swif

t had mentio ned to the defendant that she wanted to get some drugs that day. The defendant made

a cellular phone

call after Agent Harvell told him that he wanted $20 worth. About fifteen minutes later, a

whit e Corsica pulled up with two black females in it, and Agent Harvell saw the drug transaction take place between these women and the defendant. After receiving the drugs, Agent

Harvell placed the cocaine in a locked bag in the bedroom until he co

uld give it to Agent Blackwell. He sta

ted that Ms. Swift wa

s able to get the li

cense p late number of the white-4-

Corsica. A diagram showing the relationship of apartment 5, section 502, to the other sections and the road system at Harrison Meadows was introduced into evidence through this witness.

On cross-examination, Agent Harvell sta ted that he had only

been involved in three or four narcotics investigations with HUD, an amount that Har vell did not consider to be “limited” experience

but also not substantial narcotics experience. He admitted that inve stigat ors try to get the suspects on audio or video tape, but a tape was not made of this transaction. According to Agent Harvell, he had not met the defendant before the day of the cookout and had not purchased drugs from the defendant pr

eviously. He reme

mbered some

of the residents and guests who came to the barbeque on September 20, including Nakia Upchurch and another cousin of the defendant. Agent Harvell’s recollection of

the time that the de

fendant arrive

d at the apartme

nt differed fro

m Ms. Swift’s, in that he thoughtthe defendant a rrived around 10 :00 or 10:30 a.m. to h elp Ms. Swift get the grill before the other guests arrived. After returning with the grill, Agen t Harvell did not remember

the defendant le

aving again

during the cookout. He did not know how the defendant got to the cookout. Agent Harvell estimated the number of guests at the party to be bet

ween twenty

and twenty-five. The State then rested its case.

The only witness calle

d for the defense

was Timothy LeDon Davis, Jr., the defendant’s

first cousin. He testified that both he and the defendant graduated from Henry

County High School, and he had known the defendant all of his life. Davis testified that he was the assistant manager for the Kentucky Fried Chicken on Mineral Wells and was with the defendant on the day of the cookout

, September

20, 1997. Davis stated that he and the defendant drove in Davis’s car and arrived at the party together around 4:00 or 4:30 p.m. Davis worked that day until around 2:30 p.m. Davis never
saw the defendant leave the party and estimated that

there were fif

teen to twenty peo

ple there. Davis
never saw the defendant with a pager. He stated that the defendant lived with their grandmother on Jones Bend Road during the period of time in question.

On cross-examin

ation, Davis

admitted that the defendant had no legal connection with the housing project. He denied that a woman and two small children accompanied the

defendant to

the cookout but stated that just he and the defendant went together to the party. Davis denied using the bathroomat the apartment to smoke marijua na and denied that Agent Harvell saw him smoking marijuana there. The defense then rested its case. Agent Harvell was recalled

by the State as a rebuttal witness. Agent Harvell te stified that, during the cookout, he heard a door slam and went to look in the bathroom. There he saw Davis and Up churchsmoking marijuana. He told Ms. Swift what he saw. Agent Harvell stated that he ha d previously

bought drugs from U

pchurch and was

able to describe

the difference

s in appearan ce between the defendant and Upchurch. Accordi ng to Agent Harvell, the defendant has a receding hairline, looks older than Upchurch, and has a different body structure, voice, and facial features than his cousin. Agent Blackwell was recalled as the last rebuttal witness for the State. He explained to the jury why video or audio

taping of this transaction was not made. Surveillance equipment was to be installed in the apartment, bu t the equipment had to be sent back to the factory due to technical-5-

problems. The license plate number for the white Corsica provided by Ms. Swift showed that the
owne r was Devera Walker, a male. At the time of trial, the two females in the car had not bee n identified.
ANALYSIS Sufficiency of the Evidence

The defendant argues that the evidence presented at trial was insufficient

to support a guilty verdict beyond a reasonable doubt as required by Tennessee Rule of Appellate Procedure 13(e). He attaches particular significance to the following: ( 1) the discrepan cy in the time

of the defendant’s arrival at the cookout as g

iven by the p

aid informant (around noon) and Agent Harvell (around 10:30 a.m.); (2) the defendant’s cellular phone number given by the informant, which was disputed by the defendant’s cousin, Tim Davis; (3) Davis’s testimony that the defendant arrived with him around 4:00 p.m.; (4) the lack

of physical

evidence, such a

s a video or au dio recording; and (5) the prosecutor’s reference to the defendant being a major play er in the drug trade without evidence of such. The State

contends that the defendant’s arguments are founded on the cr

edibility of w

itnesses,
an issue decided by the jury and re solved in favor of the State. We a gr ee with the State that the evidence was sufficient f

or a rational jury

to find the defendant

guilty of e

very eleme

nt of the offense beyond a reasonable doubt and affirm the judgment of the trial c ourt. The defendant’s initial presumption of innocence is lost following a jury conviction an d replaced with a presumption o

f guilt; thus,

on appeal, the burden is now sh ifted to the defe

ndant to prove the insufficiency of the evidence. State v. Tuggle , 639 S.W.2d 913, 914 (T enn. 1982). This court must affirm the convictions unless the evi dence presented at trial was so deficient that no rational trier

of fact could have found a

ll of the essential

elements of the of

fense bey ond a reasonable doubt. Tenn. R. App. P. 13(e ); St ate v. Cazes , 875 S.W.2d 253, 259 (Tenn. 1994). This rule has been found by our courts to be applicable to

a conviction based on direct or circumstantial evidence
or a combination of both. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App.), perm
. app
. denied (Tenn. 1990).

In determining whether the evidence was sufficien t to su pport a conviction, we do not reweigh the evide

nce or substitute

our own inferences for those of the trial court. Tenn . R. Crim. P. 33(f); State v. Blanton , 926 S.W.2d 95 3, 958 (Tenn. Crim. App. 1996); State v. Burlison , 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Furthermore, the State is entitled to the strong es t legitimate view of the evidence presented and all reasonable inferences drawn theref rom. State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992), cert

. denied , 507 U.S. 954, 113 S. Ct. 1368 (1993). A jury verdict a ccredit s the testimony of the State’s witnesses and resolves all conflicts in favor of the State’s theory. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983).

After a careful review of the

record in the lig

ht most favorable to the State, we conclude that there was suf

ficient e vidence to support a guilty verdict against the defendant f or the sale of a-6-

controlled substance within 1,000 feet of a public or private school. The elements of the offense are set out in Tennesse

e Code Annotated §

39-17-417 as follo

ws: (a) It is an o ffen se f or a d efen dan t to kno win gly:

. . . . (3) Sell a controlled substance[.]

This offense is a Class C felony when the amount of the controlled substance involved is less than 0.5 grams, but this classification is enhanced to a Class B felony when the sale occurs within 1,000 feet of school property. Tenn. Code Ann. §§ 39-17-417(c)(2), - 432(b) (1997). The inconsistencies in testimony that the defendant relies on

are relatively minor ones that
can occur when a trial take

s place a ye

ar and a half af

ter the events oc

cur. A time

discrepancy of an hour and forty-

five minutes in pinpo

inting the defen

dant’s arrival ti

me at a day-long cookout does notgo against the

weight of the oth

er evidence pr esented at trial s howing that he kn

owingly sol

d crack cocaine to the undercover agents within the required distance of school property. Ms. Swift first testified that she could not remember what time it was when the defendan t arrived but could place the time

shortly afte

r she called the d

efendant and be

fore the other g

uests arrived. B oth she and Agent Harvell t

estified that the d

efendant arriv

ed early to

go with Ms. Swift to pick up a grill for the cookout. Und e r cross-examination, Ms. Swift eventually acquiesced at the insistence of defense counsel to 12:15 p.m. We see nothing in this testimony that would cause serious questions as to the drug transaction itself.

In addition, Ms. Swift was very specific about the cellular phone number that the defendant had given h er, and both Ms. Swift and Agent Harvell testified that the defendant used a cellula r telephone to call for the dru g delivery . Timothy Dav is only testif

ied th at he had neve r seen the defendant with apager, which is significantly different from a c ellular phone. Even if Davis were using the terms interchangeably, the jury obviously did not

believe the defendant’s assertions; nor didthey believe Davis’s testimony that he and the defendant did not

arrive at the co

okout until

late in the afternoon. These are issues of credibility which we do not disturb on appeal.

The defendant’s assertion that there was insuffici ent physi cal evidence to support the conviction is likewise without merit. Both Agent Harvell and Ms. Swift witnessed the drug transaction between the defendant and the women in the white Corsica, and Agent Harvell bagged, labeled, and stored the co c aine until handed to Agent Blackwell the next day. The substance was analyzed by the T BI La b and found to contain 0.1 gram cocaine base. That is very inc riminating physical evidence in and of itself. The lack of audio or video tape evidence was explained by Agent Blackwell

as due to faulty equi

pment that had to be sent b ack to the factor

y. In oth er words, Blackwell’s testimonywas that proper equipment was not available to record the drug sale. The jury was apparently satisfied with the physica l evidence presented.

The defendant’s last complaint relating to the prosecutor’s closing statements that the defendant was a major player in the drug indus try is also wi

t hout merit. This could have been-7-

inferred by the testimony of

several witnesse

s, and we fail to se

e how these state

ments could have affected the outcome of the trial. There was evidence presented through the testimony of Ms. Swift that the defendant re

prese nted himse lf to her as someone who could get any ty pe of drug anyone wanted. His ability to make a ph one call and have drugs delivered to him fifteen minutes later certainly gives an inference that he was “well-connected.” Age nt Blackwell stated

that he hadprior knowledge of the defendant as well. The fact that the police did not get video or audio evidence on the defendant was explained by Agent Blackwell, and ther e were two eyewitnesses to the transaction who were abl e to tes tif y at t ria l to the spe cif ics of t he ev ent s th at d ay. The testimony of Ms. Swift and Agent Harvell

was consistent on th

is point. Ms. Swift was e

ven able to provid

e the license pla

te number of the delivery car, although, not surprisingly , the owner was not one of the two women making the delivery. Since there was a substantial amount of evidence from which a rational jury could conclude beyond a reasonable doubt that the defendant sold coca ine within 1 ,000 feet of school property, w

e fail to see how these remarks by the prosecutor c

ould have affec

ted the outcome of the trial.

CONCLUSION

After a careful review of

the evidence, we conclude that the defendant ha

s failed to carry

his burden of showing that th e evidence pre

sented at trial wa

s insufficient for

a jury to fin

d him guilty beyond a reasonable doubt. We, therefore, affirm the judg ment of the trial court.

___________________________________ ALAN E. GLENN, JUDGE