        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 1, 2012

                STATE OF TENNESSEE v. CORNELIUS MULL

                  Appeal from the Criminal Court for Shelby County
                       No. 09-05418     Lee V. Coffee, Judge


                No. W2011-01218-CCA-R3-CD - Filed March 22, 2013


The Defendant, Cornelius Mull, contends (1) that the evidence presented at trial was
insufficient to support his jury convictions for possession with intent to sell and possession
with intent to deliver over twenty-six grams of cocaine, a Class B felony, and (2) that his
sentence of twenty years was excessive. After reviewing the record and the applicable
authorities, we affirm the judgment of the trial court, concluding that the evidence was
sufficient to support the jury convictions and that the Defendant’s sentence was not
excessive.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and C AMILLE R. M CM ULLEN, JJ., joined.

Lauren Pasley-Ward (on appeal) and Edward Bronston (at trial), Memphis, Tennessee, for
the Defendant, Cornelius Mull.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Kate Edmands, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

        The record reflects that the Defendant was indicted for knowingly possessing with the
intent to sell over twenty-six grams of cocaine and knowingly possessing with the intent to
deliver over twenty-six grams of cocaine, as alternate theories of the same offense. The
Defendant’s trial was held on October 25 through 28, 2010. The evidence presented at trial
revealed the facts as follows. On February 16, 2009, Officer Parz Boyce and Officer Meyers,
both with the Memphis Police Department (MPD), were riding together when they received
a call notifying them that shots had been fired at 3481 Hadley Street in Memphis, Tennessee.
The officers responded to this call by proceeding to Hadley St., and they were the first
officers to respond to the scene of the shooting. Upon their arrival, they spoke with an
individual, who explained that her car had been shot. She said that the suspect was a black
male named Teddy, who was driving a green Bonneville, and that he could be located at 1008
Railton Street. The victim also explained that Teddy was shooting at her because he believed
that she had reported him to the police on a prior date. Officer Boyce relayed this
information about the suspect to MPD Officer Veronica Carson, who had also responded to
the “shots-fired” call, and he also broadcast this information to other officers.1 Officer
Carson and her partner Officer Jeremy White went to Railton St. to look for the suspect while
Officer Boyce completed his report regarding the “shots-fired” at Hadley St.

       Shortly after Officers Carson and White got into their car to proceed to Railton St.,
MPD Officer John M. Rainey arrived on the scene at Hadley St. After learning from Officer
Boyce that Officers Carson and White were heading to an address to locate the suspect, he
followed them in his squad car. Railton St. was located just around the corner from the scene
of the “shots-fired” call. As the officers approached Railton St., they noticed that a green
Honda was parked directly in front of the address, blocking the driveway, and it was the only
car in the area. A black male walked down the driveway and got into the car on the
passenger’s side; there was another black male on the driver’s side. The officers approached
the car and yelled for the men to put their hands up. The driver complied immediately, but
the passenger, who was later identified as the Defendant, did not comply and, instead, began
reaching under his seat. Because they were responding to a “shots-fired” call and were
pursuing the shooter, Officer White explained that they had a “heightened sense of alertness.”
The officers drew their guns and repeated their request for the Defendant to put his hands up,
and the Defendant finally complied. Officer White removed the Defendant from the car and
patted him down to ensure that he did not have any weapons. Officer White did not find any
weapons but did find $293, $143 in one-dollar bills, rolled up in the Defendant’s pocket that
Officer White initially thought could have been the handle of a weapon. As Officer White
walked the Defendant to the squad car to detain him, a clear baggie containing a white
powder fell out of the Defendant’s right pants leg. Officer White handcuffed the Defendant
and placed him under arrest for possession of cocaine. Later, Officer White gave the cocaine
to MPD Officer Charles Davidson, who transported it to the property room.

       Officer Rainey had also arrested the driver, later identified as Brian McClain, and
Officer Carson asked him to transport the Defendant to jail with Mr. McClain. Officer

1
    The radio transmission was broadcast in all police cars.

                                                      -2-
Rainey explained that he searched the Defendant again before transport and found a small
baggie of white powder in the Defendant’s front, left pants pocket. He also gave this
evidence to Officer Davidson to take to the property room.

       Tennessee Bureau of Investigation (TBI) Agent Shalandus Harris testified that the
substance Officer White recovered from the Defendant tested positive for cocaine and that
it weighed twenty-eight grams. Agent Harris could not identify the contents of the smaller
bag of white powder recovered by Officer Rainey, but it tested negative for cocaine.

        MPD Task Force Lieutenant Micheal McCord was qualified as an expert in narcotics
and drug trafficking and distribution and was tendered as an expert witness on the issue of
whether the Defendant possessed the cocaine with the intent to sell. He testified that the area
in which the Defendant was arrested was a high drug trafficking area and that his “strike”
unit had targeted this area in the past.2 According to Lt. McCord, possession of over an
ounce of cocaine is “definitely for redistribution.” He explained that most users can not
afford to buy a whole ounce at a time because it would cost about $3,000, approximately
$100 per gram. Cocaine is typically sold in tenths of a gram, which Lt. McCord referred to
as “hits.” Lt. McCord explained that the average user will buy two to three “hits” at a time,
which would cost approximately twenty to thirty dollars, and that heavy users will buy it by
the gram for approximately $100. Lt. McCord testified that the “hits” are packaged in
different ways, varying from dealer to dealer, and that one common way of packaging the
“hits” is to place a tenth of a gram of cocaine in a dollar bill and fold it into a square. Lt.
McCord testified that most of the people that he has arrested with twenty-eight grams of
cocaine were selling the drugs.

       When asked about the significance of the smaller baggie found on the Defendant that
contained an unknown white powder, Lt. McCord explained that the bag contained “what
you would call cut. This could be baby laxatives, aspirin - anything - anything that looks like
cocaine.” He further explained that most drug dealers will buy an ounce or more of cocaine
and add the “cut” to the cocaine, referred to as “stepping on” or “cutting,” because the added
volume increases their profit. Lt. McCord stated that users will not add the “cut” to their
own cocaine “because they are going to diminish their high if they cut the purity of the
drugs.” Lt. McCord testified that, given the facts involved in this case, it was his expert
opinion that the Defendant possessed the cocaine with the intent to sell or deliver it.

       The jury convicted the Defendant on both counts, and the trial court approved the
verdict.


2
 Lt. McCord explained that he had previously supervised a unit of officers who were assigned to target or
“strike” certain high-drug crime areas in Memphis, Tennessee.

                                                  -3-
       The sentencing hearing was held on February 22, 2011. The Defendant and his
mother testified at the hearing, and the State submitted the Defendant’s presentence report.
The Defendant’s mother, Ernestine Mull, told the court that the Defendant was employed and
attended school. She testified that he had two children and that he did not have a car. Ms.
Mull also testified that she had seen tremendous changes in the Defendant since he was
released from prison on the federal charges approximately four to five years ago.

        The Defendant testified that he worked two jobs and did community service. The
Defendant explained that the cocaine did not belong to him and that he was simply involved
with the wrong people. He further explained that when the police approached the car that
day, Mr. McClain threw the drugs at him, and he threw the drugs out of the door when
Officer White ordered him out of the car. The Defendant insisted that the drugs never fell
from his pants leg. The Defendant admitted that he was selling drugs when he was convicted
of the federal charges but stated that he had been trying to turn his life around. He claimed
that he was in the car with Mr. McClain, a known felon, that day to go get something to eat
and that they were only on Railton St. to see a “Cutlass” that Mr. McClain said Teddy had
for sale.

        In issuing its findings, the trial court noted that it had considered the evidence from
the trial and sentencing hearing, the principles of sentencing, the sentencing considerations,
the Defendant’s potential for rehabilitation, the certified judgments of the Defendant’s prior
convictions, statistical data, and the enhancement and mitigating factors. Based on the
Defendant’s three prior cocaine-related felony convictions in federal court, the trial court
determined that the Defendant was a Range II, multiple offender, with a sentencing range of
twelve to twenty years. The trial court found that four enhancement factors applied: (1) the
defendant had a previous history of criminal convictions or behavior in addition to those
necessary to establish the range, consisting of five cocaine-related felony convictions and
some driving-related convictions; (8) the Defendant, before trial or sentencing, had failed to
comply with the conditions of a sentence involving release into the community; (10) the
Defendant had no hesitation about committing a crime when the risk to human life was high;
and (13) the Defendant was on probation when he committed the felony in this case. See
Tenn Code Ann. § 40-35-114. The trial court noted that it placed great weight on each of the
aforementioned enhancement factors. The trial court also applied one mitigating factor: the
Defendant attempted to establish himself as a legitimate employee, on which the court placed
“slight weight.” See Tenn Code Ann. § 40-35-113(13). The trial court sentenced the
Defendant to serve the maximum on each count, twenty years, in the Department of
Correction (DOC) and merged the convictions. The trial also imposed the minimum fine,
$2,000.



                                              -4-
       The Defendant perfected a timely appeal.


                                         ANALYSIS

        The Defendant contends that the evidence presented at trial was insufficient to support
his jury convictions for possession with intent to sell and possession with intent to deliver
over twenty-six grams of cocaine and that his convictions rest solely on the testimony of the
arresting officers. He also contends that the trial court misapplied one of the four
enhancement factors and that the twenty-year sentence imposed by the trial court was
excessive. The State responds that the evidence was sufficient to support the Defendant’s
convictions and that the twenty-year sentence imposed by the trial court was proper
regardless of whether this court finds that one of the enhancement factors was improperly
applied. We agree with the State.

                               A. Sufficiency of the Evidence

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal 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). The court
does not reweigh the evidence; rather, it presumes that the jury has resolved all conflicts in
the testimony and drawn all reasonable inferences from the evidence in favor of the state. See
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). Questions regarding witness credibility, conflicts in testimony, and the
weight and value to be given to evidence were resolved by the jury. See State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997).

        A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt
based upon direct evidence, circumstantial evidence, or a combination of [both] direct and
circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999). The standard of proof is the same, whether the evidence is direct or circumstantial.
State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the
convicting evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
The duty of this court“on appeal of a conviction is not to contemplate all plausible inferences
in the [d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor

                                              -5-
of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

       The Defendant was convicted, pursuant to Tennessee Code Annotated section 37-17-
417(a)(4), of possessing cocaine with the intent to sell and possessing cocaine with the intent
to deliver. The statute states, in relevant part, that

       (a) It is an offense for a defendant to knowingly:

       ...

       (4) Possess a controlled substance with intent to manufacture, deliver or sell
       the controlled substance.

       ...

       (i) A violation of subsection (a) with respect to the following amounts of a
       controlled substance, or conspiracy to violate subsection (a) with respect to
       such amounts, is a Class B felony and, in addition, may be fined not more than
       two hundred thousand dollars ($200,000):

       ....

       (5) Twenty-six (26) grams or more of any substance containing cocaine.

Tenn. Code Ann. § 39-17-417(a)(4), (i)(5). Therefore, to convict the Defendant of Class B
felony possession of cocaine, the State had to present evidence sufficient to prove beyond
a reasonable doubt that the Defendant possessed in excess of twenty-six grams of cocaine
and did so with the intent to either deliver or sell the cocaine.

        In a light most favorable to the State, the following evidence was presented at the
Defendant’s trial: Officer White testified that he found the Defendant in possession of the
cocaine at issue. Agent Harris testified that the white substance retrieved from the Defendant
was, in fact, cocaine and that it weighed approximately twenty-eight grams. Lt. McCord
testified as an expert in narcotics trafficking and distribution and explained that cocaine is
typically sold in tenths of a gram for about $10 and that a gram of cocaine would cost
approximately $100. He also testified that, in his experience, possession of over an ounce
of cocaine is “definitely for redistribution.” He further testified that the small bag of white
powder that was found in the Defendant’s pocket was a substance called “cut” that many
drug dealers would add to the pure cocaine to increase their profits. Lt. McCord further
testified that, in his expert opinion, the Defendant possessed the twenty-eight grams of

                                              -6-
cocaine with the intent to sell or deliver it. Despite the Defendant’s contention that his
conviction was based solely on the testimony of the arresting officers, we note that the State
also presented the testimony of Agent Harris and Lt. McCord and, more importantly, that
there is no prohibition on a conviction being based solely on the testimony of the arresting
officers. See State v. Vasser, 870 S.W.2d 543, 544 (Tenn. Crim. App. 1993). Considered in
a light most favorable to the State, the record reflects that the State presented sufficient
evidence for a rational jury to conclude beyond a reasonable doubt that the Defendant was
guilty of Class B felony possession of cocaine with intent to sell or deliver.


                                        B. Sentencing

        The Defendant contends that the trial court improperly applied enhancement factor
(10), that the Defendant participated in a crime in which the risk to human life was high,
rendering the twenty-year sentence imposed by the trial court excessive. The State responds
that the trial court relied on applicable law to support its application of enhancement factor
(10) but that, alternatively, the sentence imposed is still not excessive because it is supported
by the other three enhancement factors applied.

        Before a trial court imposes a sentence upon a convicted criminal defendant, it must
consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence
report; (c) the principles of sentencing and arguments as to sentencing alternatives; (d) the
nature and characteristics of the criminal conduct involved; (e) evidence and information
offered by the parties on the enhancement and mitigating factors set forth in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (f) any statistical information provided by the
Administrative Office of the Courts as to Tennessee sentencing practices for similar offenses;
and (g) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. Tenn. Code Ann. § 40-35-210(b). To facilitate appellate review, “it is critical
that trial courts adhere to the statutory requirement set forth in Tennessee Code Annotated
section 40-35-210(e)” and articulate in the record its reasons for imposing the specific
sentence. See State v. Bise, 380 S.W.3d 682, 705 n.41 (Tenn. 2012).

       The 2005 amendments to the Sentencing Act “served to increase the discretionary
authority of trial courts in sentencing.” Id. at 708. Currently, upon a challenge to the
sentence imposed, it is the duty of this court to analyze the issues under “an abuse of
discretion standard of review, granting a presumption of reasonableness to within-range
sentencing decisions that reflect a proper application of the purposes and principles of our
Sentencing Act.” Id. at 707. Those purposes and principles include “the imposition of a
sentence justly deserved in relation to the seriousness of the offense,” Tennessee Code
Annotated section 40-35-102(1), a punishment sufficient “to prevent crime and promote

                                               -7-
respect for the law,” Tennessee Code Annotated section 40-35-102(3), and consideration of
a defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code
Annotated section 40-35-103(5). State v. Carter, 254 S.W.3d 335, 344 (Tenn. 2008). The
burden of showing that a sentence is improper is upon the appealing party. See Tenn. Code
Ann. § 40-35-401, Sentencing Comm’n Comts.; see also State v. Arnett, 49 S.W.3d 250, 257
(Tenn. 2001). The 2005 amendments also rendered advisory the manner in which the trial
court selects a sentence within the appropriate range, allowing the trial court to be guided by
- but not bound by - any applicable enhancement factors when adjusting the length of a
sentence. Bise, 380 S.W.3d at 706. In accordance with the broad discretion now afforded
our trial court’s sentencing decisions,

       misapplication of an enhancement or mitigating factor does not invalidate the
       sentence imposed unless the trial court wholly departed from the 1989 Act, as
       amended in 2005. So long as there are other reasons consistent with the
       purposes and principles of sentencing, as provided by statute, a sentence
       imposed by the trial court within the appropriate range should be upheld.

Id.

        Although the Defendant argues that his twenty-year sentence is excessive, the sole
error raised is that one enhancement factor, that the Defendant participated in a crime in
which the risk to human life was high, was improperly applied because “the legislature has
already considered the inherent nature of the various drugs in its setting of punishment.”
Although we agree that this enhancement factor was improperly applied, see State v. Keel,
882 S.W.2d 410, 420-22 (Tenn. Crim. App. 1994) (holding that a trial court is not warranted
in using this factor to enhance a sentence involving a Schedule II controlled substance based
solely on the “nature and circumstances” of the substance), it does not entitle the Defendant
to relief. The record illustrates that the trial court considered all the sentencing factors and
the relevant facts and circumstances of the case. As previously stated, the misapplication of
an enhancement factor does not invalidate the sentence imposed by the trial court. Bise, 380
S.W.3d at 706. The trial court’s “within-range” sentence is presumed reasonable unless the
Defendant can show an abuse of discretion. Here, the Defendant does not challenge the
applicability of the other three enhancement factors found by the trial court, and their
application is supported by the record. Because the trial court complied with the Sentencing
Act and the proffered reasons for imposing the sentence are supported by the record, we
cannot conclude that the trial court abused its discretion by sentencing the Defendant to serve
twenty years in the DOC, the maximum sentence allowed for a Range II, B felony conviction.




                                              -8-
                              CONCLUSION

Accordingly, the judgment of the trial court is affirmed.




                                           _________________________________
                                           D. KELLY THOMAS, JR., JUDGE




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