                                                                                         03/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 5, 2017

               STATE OF TENNESSEE v. DAVID VON BROWN

                 Appeal from the Circuit Court for Madison County
                      No. 16-3     Roy B. Morgan, Jr., Judge
                     ___________________________________

                           No. W2017-00220-CCA-R3-CD
                       ___________________________________


The Defendant, David Von Brown, was convicted by a Madison County Circuit Court
jury of possession of .5 grams or more of cocaine with intent to sell, a Class B felony;
possession of .5 grams or more of cocaine with intent to deliver, a Class B felony; two
counts of possession of a firearm during the commission of a dangerous felony, Class D
felonies; two counts of possession of a firearm during the commission of a dangerous
felony by one having a prior felony conviction, Class D felonies; and felon in possession
of a firearm, a Class D felony. The trial court merged the two drug convictions and
imposed a sentence of twelve years on that conviction; the court merged the four various
possession of a firearm during the commission of a dangerous felony convictions and
imposed a sentence of five years on that conviction; and the court imposed a sentence of
five years on the felon in possession of a firearm conviction. The court ordered that the
sentence for the possession of a firearm during the commission of a dangerous felony
conviction be served consecutively to the other sentences, which were to be served
concurrently, for a total effective term of seventeen years in the Department of
Correction. On appeal, the Defendant argues that: (1) the evidence is insufficient to
sustain his convictions; (2) the verdict is against the weight of the evidence; and (3) the
trial court erred in not considering any mitigating factors in determining his sentences.
After review, we affirm the judgments of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in JOHN EVERETT WILLIAMS and
J. ROSS DYER JJ., joined.

Terita Hewlett, Memphis, Tennessee (on appeal); and Jeremy Epperson, Jackson,
Tennessee (at trial), for the appellant, David Von Brown.
Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Aaron J. Chaplin,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                          FACTS

        In a superseding indictment returned on December 28, 2015, the Defendant was
charged with possession of .5 grams or more of cocaine with intent to sell or deliver
(Counts 1 and 2); possession of a firearm during the commission of a dangerous felony
(Counts 3 and 4); possession of a firearm during the commission of a dangerous felony
by one having a prior felony conviction (Counts 5 and 6); felony evading arrest (Count
7); reckless driving (Count 8); driving on a canceled, suspended, or revoked license
(Count 9); driving on a canceled, suspended, or revoked license – prior offender (Count
10); assault (Count 11); resisting arrest (Count 12); violation of the gang enhancement
statute (Counts 13, 14, and 16); and felon in possession of a firearm (Count 15).

        Prior to trial, the court granted the State’s motion to dismiss Count 8. The court
also dismissed Counts 13, 14, and 16, relating to the gang enhancement statute, pursuant
to this court’s decision in State v. Bonds, 502 S.W.3d 118 (Tenn. Crim. App. 2016). It
appears that an earlier trial was held in May 2016, at which the jury found the Defendant
guilty as charged in Counts 7, 9, 11, and 12 but was hung on the remaining counts. A
few months later, the Defendant entered a guilty plea in Count 10. A retrial was held on
the remaining counts, Counts 1 through 6 and 15, in October 2016.

        Officer Blake Lambert with the Jackson Police Department testified that he was
driving on patrol on June 2, 2014, around 9:00 p.m. when he noticed a vehicle swerve
over two lanes of traffic and almost hit two pedestrians. He followed the vehicle for a
short time and then activated his blue lights to initiate a traffic stop. The vehicle did not
stop but, instead, tried to flee from Officer Lambert by turning onto different roads and
driving through the parking lot of a factory before ultimately pulling into a cul-de-sac.

        The vehicle pulled into a driveway at the end of the cul-de-sac, and the driver,
identified as the Defendant, got out and fled on foot. When the Defendant got out of the
car, Officer Lambert noticed that he was carrying something in his hand and “whatever it
was was reflecting off of th[e] street light.” Officer Lambert chased the Defendant on
foot, keeping him in sight the entire time but not specifically looking at his hands.



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       The Defendant ran to the back of the house at 70 Alpine Cove and unsuccessfully
attempted to climb over a fence. Officer Lambert tried to restrain the Defendant, but the
Defendant struggled, going so far as to “strik[e] and punch[]” the officer. During the
struggle, the two fell into the driveway of 65 Alpine Cove, next to the back passenger
side of an older model sedan. Officer Lambert was on top of the Defendant, while the
Defendant was either on his stomach or on his hands and knees, attempting to stand up.
At no time during the struggle could Officer Lambert see the Defendant’s hands because
they “were always underneath his body either trying to push up or falling up under him.”

      Eventually, other officers arrived on the scene, and the Defendant was handcuffed
and put in the back of a patrol car. The officers searched the route the Defendant had run
from his vehicle to 70 Alpine Cove, looking for whatever had been in the Defendant’s
hand when he got out of the car. They did not search in the area of 65 Alpine Cove
because Officer Lambert was “amped up,” and “it just slipped [his] mind” in the
aftermath of the struggle. The officers did not find anything in their search that evening.
The Defendant was taken to the county jail, where he was booked and found to be in
possession of $670.10.

      Captain Brian Wilson of the Madison County Sheriff’s Office testified that when
the Defendant was booked into jail the night of his arrest, he was allowed to make a
phone call, and he called Chelsea McNeal.

       Lieutenant Rodney Anderson with the Jackson Police Department testified that on
June 3, 2014, he noticed the Defendant’s name when he reviewed a list of arrests from
the previous day. He was familiar with the Defendant and had interacted with him
several times. After seeing the various charges brought against the Defendant, Lieutenant
Anderson decided to listen to the recordings of the Defendant’s jailhouse phone calls to
see if the Defendant had discarded anything while fleeing from the police. Based on
what Lieutenant Anderson heard on the recordings, he contacted Sergeant Gilley to “find
out if he knew who Willoughby’s mom was” who was mentioned in the calls. He told
Sergeant Gilley what he had heard on the calls and directed him to an address on Alpine
Cove to look for the items that were mentioned. However, Sergeant Gilley did not locate
anything.

       Lieutenant Anderson continued listening to the Defendant’s jailhouse phone calls
and, based on what he heard, directed Sergeant Gilley to specifically “look in front of the
house underneath the car.” Lieutenant Anderson learned that Sergeant Gilley recovered a
handgun and two bags of cocaine from underneath a white car at 65 Alpine Cove.
Lieutenant Anderson acknowledged that, on the phone call, the Defendant said, “[G]o to
the front of Willoughby’s mom’s house . . . [and] check underneath the car,” but he did
not specifically reference drugs or a gun.
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       Sergeant Samuel Gilley with the Jackson Police Department testified that in
response to a call from Lieutenant Anderson, he “went by a residence that belonged to a
Willoughby’s mother” to “search for . . . possible contraband that had been discarded.”
He looked around the area at 70 Alpine Cove but did not find anything. Later, he
received another call from Lieutenant Anderson directing him to search “in the area . . .
across the street from Willoughby’s mother’s house.” Sergeant Gilley observed “an old
car in the driveway” of 65 Alpine Cove and saw cocaine and a firearm under the car.
Sergeant Gilley noted that the amount of cocaine and the way it was packaged, as well as
the Defendant’s having a large amount of cash in his possession when he was booked but
“no gainful employment,” were indicative of the drugs being for resale and not personal
use. Sergeant Gilley also noted that a “firearm is a tool of necessity to a drug dealer,
especially a cocaine dealer, in order to protect your life against would-be robbers who are
out to get your product or the large amount of cash that you have.”

       Investigator Andy Smith with the Madison County Sheriff’s Office testified that
he assisted Sergeant Gilley in recovering the evidence, “a pistol . . . and some bags of
cocaine and crack,” on Alpine Cove. He recalled that the items “were all under the car
together.” There was a live round in the chamber of the gun. Based on his experience,
Investigator Smith surmised that the amount of cocaine and the way it was packaged
were indicative of it being “[p]ackaged for resale or distribution.” Investigator Smith
additionally noted that, based on his experience, individuals involved in the sale of
narcotics often use firearms “[t]o protect them from being robbed and other dealers or
such taking their dope and money.”

        Special Agent Brock Sain, a forensic scientist with the Tennessee Bureau of
Investigation, “TBI,” tested the substance recovered from 65 Alpine Cove and confirmed
that it was cocaine and that it weighed at least .5 grams. On cross-examination, Special
Agent Sain agreed that the TBI had facilities for testing DNA and fingerprints, but it was
only requested that he conduct an analysis on the narcotics.

       The State entered a certified copy of a judgment from December 17, 2007, in
which the Defendant pled guilty to the Class B felony of possession of .5 grams or more
of cocaine with the intent to sell or deliver.

       The Defendant called Sergeant Brian Spencer with the Jackson Police Department
who testified that he requested for a DNA swab from the Defendant and the firearm
retrieved in the case be submitted to the TBI crime laboratory for DNA testing.
However, his request was denied because of the nature of the charge, felon in possession
of handgun, against the Defendant. Sergeant Spencer said that he also requested

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ballistics testing on the gun, and such was conducted. Because of the ballistics testing,
fingerprint testing would have been impossible.

      Following the conclusion of the proof, the jury convicted the Defendant as
charged.

                                       ANALYSIS

                                      I. Sufficiency

       The Defendant argues that the evidence is insufficient to sustain his convictions
because there was no direct evidence linking him to the handgun and drugs that were
found in the area after his arrest. When the sufficiency of the evidence is challenged, the
relevant question of the reviewing court 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); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604
(Tenn. Crim. App. 1992). All questions involving the credibility of witnesses, the weight
and value to be given the evidence, and all factual issues are resolved by the trier of fact.
See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by
the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d
474, 476 (Tenn. 1973). Our supreme court has stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (1963)). “A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

                                            -5-
       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘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)). The jury as the trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’
testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d
331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App.
1978)). Moreover, the jury determines the weight to be given to circumstantial evidence
and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

      To establish the elements of Counts 1 and 2, the State had to show that the
Defendant knowingly possessed cocaine with the intent to sell or deliver it. Tenn. Code
Ann. § 39-17-417(a)(4).

      To establish the elements of Counts 3 through 6, the State had to show that the
Defendant possessed a firearm with the intent to go armed during the commission of or
attempt to commit a dangerous felony, i.e., the possession of cocaine offenses in Counts 1
and 2. Id. § 39-17-1324(a), (i)(1)(L). With respect to Counts 5 and 6, the State had to
show the additional element that the Defendant had a prior felony conviction. Id. § 39-
17-1324(g)(2).

      To establish the elements of Count 15, the State had to show that the Defendant
unlawfully possessed a firearm after having been convicted of a felony drug offense. Id.
§ 39-17-1307(b)(1)(B).

       Officer Lambert testified that when the Defendant got out of the car and fled on
foot, he noticed that the Defendant was carrying something reflective in his hand. Officer
Lambert pursued the Defendant, and the two eventually ended up in a struggle in the
driveway of 65 Alpine Cove, next to the back passenger side of an older model sedan.
Officer Lambert could not see the Defendant’s hands at any time because they were
under his body while Officer Lambert was on top of the Defendant trying to subdue him.
Lieutenant Anderson testified that he listened to recordings of phone calls the Defendant
placed from jail and sent officers to Alpine Cove to search around “Willoughby’s mom’s
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house” and to “check underneath the car,” as referenced in the calls. Sergeant Gilley and
Investigator Smith testified that they went to Alpine Cove and, upon inspecting the back
passenger side of an older model sedan at 65 Alpine Cove, found two bags of cocaine and
a handgun. The officers stated that the amount of cocaine and the way it was packaged,
as well as the Defendant’s having a large amount of cash in his possession when he was
booked but “no gainful employment,” were indicative of the drugs being for resale and
not personal use. The officers also noted that a firearm was a “tool of necessity” for a
drug dealer.

        Based on this evidence viewed in the light most favorable to the State, a rational
trier of fact could have determined that the Defendant was in the possession of the drugs
and handgun at the time he was fleeing from Officer Lambert and had discarded them
under the sedan during the struggle. A rational trier of fact could have also determined
that the Defendant was in possession of the drugs with the intent to sell or deliver them
and that, at the same time, he was in possession of the handgun with the intent to go
armed. A rational trier of fact could have further determined that the Defendant had a
prior felony drug conviction. The Defendant criticizes the State’s proof essentially
because it was circumstantial in nature, as no drugs or weapon were found on his person
and no one saw him in direct possession of such. However, circumstantial evidence is
treated no differently than direct evidence. See Dorantes, 331 S.W.3d at 380-81. The
Defendant is not entitled to relief.

                                 II. Weight of Evidence

       The Defendant next alleges that the weight of the evidence is against the verdict.
He points to the trial judge’s duty to “weigh the evidence himself as if he were a juror
and determine for himself the credibility of the witnesses and the preponderance of the
evidence.” The Defendant does not argue that the trial court did not fulfill its duty as the
thirteenth juror in weighing the evidence. Instead, he essentially reiterates the same
argument that there was no evidence linking him to the drugs and gun found by the
officers and asserts that the trial court should have reached a different conclusion than the
jury.

        Rule 33(d) of the Tennessee Rules of Criminal Procedure provides that a “trial
court may grant a new trial following a verdict of guilty if it disagrees with the jury about
the weight of the evidence.” (Emphasis added). The rule imposes a mandatory duty on
the trial judge to act as the thirteenth juror in every criminal case. See State v. Carter,
896 S.W.2d 119, 122 (Tenn. 1995). The rule requires that the trial judge be personally
satisfied with the verdict, see State v. Dankworth, 919 S.W.2d 52, 56 (Tenn. Crim. App.
1995), and its purpose is “to be a ‘safeguard . . . against a miscarriage of justice by the

                                            -7-
jury.’” State v. Price, 46 S.W.3d 785, 823 (Tenn. Crim. App. 2000) (quoting State v.
Moats, 906 S.W.2d 431, 434 (Tenn. 1995)).

       Rule 33 is in stark contrast to Tennessee Rule of Criminal Procedure 29,
       which requires a trial court to “order the entry of judgment of acquittal of
       one or more offenses charged in the indictment, presentment, or
       information after the evidence on either side is closed if the evidence is
       insufficient to sustain a conviction of such offense or offenses.”

State v. Ellis, 453 S.W.3d 889, 898 (Tenn. 2015) (quoting Tenn. R. Crim. P. 29(b)).

        In fulfilling its duty as thirteenth juror, the trial court does not have to make an
explicit statement on the record. Moats, 906 S.W.2d at 434. Instead this court may
presume by the trial court’s overruling of the motion for new trial that it approved of the
jury’s verdict. Id. If, however, “the record contains statements by the trial judge
expressing dissatisfaction or disagreement with the weight of the evidence or the jury’s
verdict, or statements indicating that the trial court absolved itself of its responsibility to
act as the thirteenth juror[,]” the reviewing court may reverse the trial court’s judgment.
Carter, 896 S.W.2d at 122.

       The record shows that the trial court fulfilled its duty as thirteenth juror. The court
issued an order denying the Defendant’s motion for new trial; thus, we can presume from
the denial that the judge approved the verdict. Id. In addition, in its written order, the
trial court specifically found that “[t]he verdict was not against the weight of the
evidence.” The Defendant appears to debate the trial court’s weighing of the evidence.
However, once the trial court fulfills its duty as the thirteenth juror and imposes a
judgment, appellate review is limited to determining the sufficiency of the evidence.
Moats, 906 S.W.2d at 435 (citing State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim.
App. 1993)). As already determined above, the evidence is sufficient to support the
verdicts.

                                      III. Sentencing

       The Defendant argues that the court erred in failing to consider any mitigating
factors in determining his sentences.

       A trial court is to consider the following when determining a defendant’s sentence
and the appropriate combination of sentencing alternatives:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

                                             -8-
       (2) The presentence report;

       (3) The principles 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 the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own
       behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b).

        The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a
trial court’s sentencing determinations under an abuse of discretion standard, “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.

        At the sentencing hearing, defense counsel asked the court to rely on “the catchall
[mitigating] factor,” as well as the Defendant’s employment history. On appeal, the
Defendant additionally asserts that the trial court should have considered that his conduct
did not cause or threaten serious bodily injury. In imposing the Defendant’s sentence, the
trial court noted the statutory considerations it was taking into account, including “all the
mitigating and enhancing factors.” Later, the trial court specifically stated, “I do not even
find under the catchall . . . that a mitigating factor would apply, and I’ve considered the
principles and guidelines for sentencing and there are just no mitigating factors to put in
this case on behalf of the Defendant[.]” The record shows that the trial court properly
considered the enhancement and mitigating factors and the principles and purposes of
sentencing before imposing sentences within the applicable range for the Defendant’s
convictions. Accordingly, we affirm the sentences imposed by the trial court.



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                                   CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.

                                        ______________________________________
                                        ALAN E. GLENN, JUDGE




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