        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs May 16, 2012 at Knoxville

                 STATE OF TENNESSEE v. EDDIE L. READUS

                   Appeal from the Circuit Court for Bedford County
                         No. 17127     Robert Crigler, Judge


              No. M2011-01918-CCA-R3-CD - Filed September 17, 2012


The defendant, Eddie L. Readus, was convicted by a Bedford County Circuit Court jury, in
count one, of sale of less than .5 grams of cocaine and, in count two, of delivery of less than
.5 grams of cocaine, Class C felonies, as well as, in count three, of possession of .5 grams
or more of cocaine with intent to sell and, in count four, of possession of .5 grams or more
of cocaine with intent to deliver, Class B felonies. The trial court merged count two into
count one and count four into count three and sentenced the defendant to fifteen years on
the two remaining convictions, to be served consecutively. On appeal, the defendant
challenges the sufficiency of the convicting evidence and also argues that the doctrines of
double jeopardy, multiplicity and merger prevented him from being sentenced separately on
counts one and three. 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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
N ORMA M CG EE O GLE, JJ., joined.

Roger Clay Parker, Shelbyville, Tennessee, for the appellant, Eddie L. Readus.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Charles Crawford, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

      On September 10, 2010, a confidential informant made a controlled drug buy of crack
cocaine from the defendant at the home of Brenda Newman in Shelbyville, Tennessee. As
a result, the defendant was indicted for selling .5 grams or more of cocaine and delivering
.5 grams or more of cocaine. Officers arrested the defendant later that day, finding in his
possession an amount of powder cocaine, resulting in his also being indicted for possession
of .5 grams or more of cocaine with intent to sell and possession of .5 grams or more of
cocaine with intent to deliver.

       According to the State’s proof at trial, Deputy Tim Miller, of the Bedford County
Sheriff’s Department and 17th Judicial District Drug Task Force, received information in
September 2010 that a lot of drug activity was taking place at Brenda Newman’s residence.
In particular, Deputy Miller was contacted by a paid confidential informant on September
10 who told him specifically that the defendant was selling crack cocaine out of Newman’s
residence. Deputy Miller, along with Agent Shane George of the Shelbyville Police
Department and the 17th Judicial District Drug Task Force, met with the informant and
arranged for her to conduct a controlled buy from the defendant. The officers searched the
informant beforehand to ensure she did not have any contraband on her person and then
issued her $100 with which to purchase the drugs. The informant was also outfitted with
an electronic device to record her conversations.

       Agent George drove the confidential informant to Newman’s residence, with Deputy
Miller following behind them. When they arrived in the area, the informant pointed out the
defendant walking away from Newman’s apartment, toward a market. However, by the time
the officers moved into their respective surveillance positions, they saw the defendant
walking back toward Newman’s residence and entering the apartment.

       Once the defendant was inside Newman’s apartment, the informant exited Agent
George’s vehicle and walked toward Newman’s apartment. As the informant neared the
apartment, a man wearing a brown outfit approached her and they went into the apartment
together. Inside, the informant made contact with the defendant and gave him $100 in
exchange for a yellow bag containing “the dope,” which she put in her bra. After being
inside only “a relatively short period of time,” the informant exited the apartment and
returned to Agent George’s vehicle, where she gave the bag of “dope” to Agent George.
Deputy Miller, Agent George, and the informant then met in the parking lot of a nearby
church, where Agent George handed Deputy Miller a small yellow bag containing crack
cocaine that the informant had turned over to him. Deputy Miller secured the contraband
and sent it to the Tennessee Bureau of Investigation (“TBI”) Crime Laboratory for chemical
analysis where it was determined to be .4 grams of crack cocaine. The officers searched and
debriefed the informant who identified the defendant as the person from whom she
purchased the crack cocaine.



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       Deputy Miller made the decision to arrest the defendant. Therefore, he and Agent
George returned to Newman’s address and conducted surveillance for approximately an hour
and a half, noting there was “a ton of foot traffic” to and from Newman’s residence. The
officers entered Newman’s apartment and arrested the defendant. When Agent George
searched the defendant, he recovered a bag of powder cocaine, a small amount of marijuana,
and two cell phones. He also recovered $411 cash, $100 of which was confirmed as the
currency the informant used in making the controlled drug buy. The cocaine was packaged
and put into evidence and sent to the TBI for testing, where it was determined to be powder
cocaine in the weight of 1.5 grams. The defendant was Mirandized, waived his rights, and
denied selling any drugs.

       Following the conclusion of the proof, the jury convicted the defendant as charged,
except in counts one and two it found that the amount he sold and delivered was less than
.5 grams, not more than .5 grams. The defendant’s conviction in count two was merged into
count one, and his conviction in count four was merged into count three.

       On a later date, the trial court conducted a sentencing hearing. The presentence report
was admitted at the hearing in which it was detailed that the forty-three-year-old defendant
had forty prior felony and misdemeanor convictions, including nine drug-related
convictions, nine theft or property-related convictions, seven assault convictions, and six
weapons convictions. It was also noted in the report that the defendant had numerous
probation revocations, dropped out of high school in the tenth grade, had regularly used
drugs since the age of nineteen, and had unverifiable and unstable employment history.

       In reaching the defendant’s sentence, the trial court found that the defendant had a
long history of criminal convictions and criminal conduct and placed great weight on that
factor. The court observed that the defendant’s employment history was “nil.” With regard
to count one, the court noted that the only possible sentence for a career offender on a Class
C felony was fifteen years at sixty percent. The court imposed a Range II sentence of fifteen
years on the Class B felony in count three. The court ordered that the sentences be served
consecutively, finding the defendant to be an offender whose record of criminal activity was
extensive.

                                        ANALYSIS

       On appeal, the defendant challenges the sufficiency of the convicting evidence and
also argues that the doctrines of multiplicity, double jeopardy and merger prevented him
from being sentenced separately on counts one and three.



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                                I. Sufficiency of the Evidence

        The defendant challenges the sufficiency of the convicting evidence, arguing that the
evidence against him was “highly circumstantial” and that “the likelihood existed that the
informant . . . may have been in possession of the cocaine presented in court at trial and
attributed to [him].”

        When the sufficiency of the convicting 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). The same
standard applies whether the finding of guilt is predicated upon direct evidence,
circumstantial evidence, or a combination of direct and circumstantial evidence. State v.
Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

       A criminal offense may be established entirely by circumstantial evidence. State v.
Majors, 318 S.W.3d 850, 857 (Tenn. 2010). It is for the jury to determine the weight to be
given the circumstantial evidence and the extent to which the circumstances are consistent
with the guilt of the defendant and inconsistent with his innocence. State v. James, 315
S.W.3d 440, 456 (Tenn. 2010). In addition, the State does not have the duty to exclude
every other reasonable hypothesis except that of the defendant’s guilt in order to obtain a
conviction based solely on circumstantial evidence. See State v. Dorantes, 331 S.W.3d 370,
380-81 (Tenn. 2011) (adopting the federal standard of review for cases in which the
evidence is entirely circumstantial).

        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 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

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       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, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 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).

        To sustain the defendant’s conviction for sale of less than .5 grams of cocaine, the
State had to show that the defendant sold said amount of cocaine and that he acted
knowingly. Tenn. Code Ann. § 39-17-417(a)(3), (c)(2)(A). To sustain the defendant’s
conviction for possession of .5 grams or more of cocaine with the intent to sell, the State had
to show that the defendant knowingly possessed .5 grams or more of cocaine with the intent
to sell it. Id. § 39-17-417(a)(4), (c)(1). Tennessee Code Annotated section 39-17-419
provides in pertinent part: “It may be inferred from the amount of a controlled substance or
substances possessed by an offender, along with other relevant facts surrounding the arrest,
that the controlled substance or substances were possessed with the purpose of selling or
otherwise dispensing.”

       With regard to the defendant’s conviction for the sale of cocaine in an amount less
than .5 grams, in the light most favorable to the State, the evidence shows that the police
learned that the defendant was participating in drug activity in Brenda Newman’s apartment.
The officers met with the confidential informant and arranged for her to make a controlled
drug buy from the defendant. After searching the informant as well as male officers could
without being inappropriate, the officers gave her $100 with which to purchase the drugs
and observed her enter the target apartment. Inside, the informant gave the defendant the
$100 in exchange for a yellow bag containing “the dope.” According to the informant, she
put the bag in her bra and then turned it over to the police upon their reconvening outside.
The informant identified the defendant as the individual from whom she purchased the
drugs. Deputy Miller and Agent George later recovered the $100 used in the controlled buy
from the defendant. TBI Forensic Scientist Laura Adams testified that the substance
purchased by the informant was crack cocaine in the amount of .4 grams.

         The defendant disputes the sufficiency of the evidence because “the likelihood
existed that the informant . . . may have been in possession of the cocaine presented in court
at trial and attributed to [him].” However, the credibility of the informant’s testimony that
she purchased the drugs from the defendant was assessed by the jury as the trier of fact and
is not for us to second-guess on appeal. Additionally, the officers’ recovery from the

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defendant’s person of the exact currency that the informant used in making the buy supports
the jury’s determination.

        With regard to the defendant’s conviction for possession of .5 grams or more of
cocaine with intent to sell, in the light most favorable to the State, the evidence shows that
when the police arrested the defendant, they found powder cocaine, marijuana, two cell
phones, and $411 on his person. The TBI forensic scientist determined that the substance
recovered from the defendant was cocaine in the amount of 1.5 grams. Agent George
testified that 1.5 grams of powder cocaine was considered a large amount. It was a
reasonable inference for the jury to make given the sum of powder cocaine and cash
recovered from the defendant that the defendant intended to sell the drugs. See, e.g., State
v. Nelson, 275 S.W.3d 851, 867 (Tenn. Crim. App. 2008); State v. Maurice Currie, No.
W2008-01090-CCA-R3-CD, 2009 WL 2998916, at *5 (Tenn. Crim. App. Sept. 21, 2009);
State v. William Martin Frey, Jr., No. M2003-01996-CCA-R3-CD, 2004 WL 2266799, at
*8-9 (Tenn. Crim. App. Oct. 6, 2004), perm. app. denied (Tenn. Feb. 28, 2005).

                                   II. Double Jeopardy

       The defendant argues that the trial court erred in sentencing him on both counts one
and three because the convictions arose out of the same series of events and were thus a
single criminal offense. Accordingly, he asserts that “[t]he State is attempting to inflict
punishment on [him] for separate charges based on the same facts” in violation of “the
princip[les] of multiplicity, double jeopardy and merger.” We note that the defendant,
although stating that the trial court imposed an “excessive” sentence, clearly is not
challenging the specific sentence imposed by the trial court but, instead, challenging that he
was sentenced on both convictions rather than them being treated as one. As such, we
confine our review to the defendant’s issue instead of undertaking a typical sentencing
review.

       The Double Jeopardy Clause of the United States Constitution states that no person
shall “be subject for the same offense to be twice put in jeopardy of life or limb[.]” U.S.
Const. amend. V. Article I, section 10 of the Tennessee Constitution similarly provides
“[t]hat no person shall, for the same offence, be twice put in jeopardy of life or limb.” In
State v. Watkins, 362 S.W.3d 530 (Tenn. 2012), our supreme court abandoned the State v.
Denton, 938 S.W.2d 373 (Tenn. 1996), four-factor test previously employed by Tennessee
courts in determining whether dual convictions violate the prohibition against double
jeopardy. Instead, the court adopted the same elements test enunciated by the United States
Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932). Under the
Blockburger test, the threshold inquiry is whether the defendant’s convictions arose from
the same act or transgression. Watkins, 362 S.W.3d at 545. If the convictions do not arise

                                             -6-
from the same act or transgression, the state and federal prohibitions against double jeopardy
are not implicated, and the inquiry ends. Id.

       If, however, the convictions arose from the same act or transgression, the court must
then determine whether the legislature intended to allow the offenses to be punished
separately. Id. at 556. When the legislature has not clearly expressed its intent either to
prevent or to preclude the dual convictions, the court must examine the statutes to determine
whether the crimes constitute the same offense. Id. at 557. “The court makes this
determination by examining statutory elements of the offenses in the abstract, rather than the
particular facts of the case.” State v. Cross, 362 S.W.3d 512, 520 (Tenn. 2012) (citations
omitted). “[I]f each offense includes an element that the other does not, the statutes do not
define the ‘same offense’ for double jeopardy purposes,” and courts “will presume that the
Legislature intended to permit multiple punishments.” Watkins, 362 S.W.3d at 557.

       Upon review, we conclude that the defendant’s convictions for the sale of cocaine
and possession of cocaine and sentencing on those convictions do not violate double
jeopardy. The initial inquiry of the Blockburger test is whether the defendant’s convictions
arose from the same act or transgression. Despite the defendant’s best efforts at making his
selling and possessing cocaine sound like the same act, such is not the case. The defendant
sold .4 grams of crack cocaine to a confidential informant inside Brenda Newman’s
residence. Afterwards, the officers conducted surveillance on Newman’s residence for a
period of approximately an hour and a half before entering the residence to arrest the
defendant. At the time of his arrest, the officers found 1.5 grams of powder cocaine on his
person. Although crack cocaine is a form of cocaine, according to the testimony at trial,
certain processes have to be done to powder cocaine and materials added to turn it into crack
cocaine. Therefore, even if the defendant personally made the crack he sold to the
confidential informant from his supply of powder cocaine, an assumption on which the
record is silent, because of the processes involved, it was completely different transgressions
for him to sell the crack cocaine and possess the powder cocaine for some later use.
Accordingly, we conclude that the double jeopardy clause was not violated in this case. See
State v. Jose D. Holmes, No. 02C01-9411-CR-00251, 1995 WL 695127, at *3-4 (Tenn.
Crim. App. Nov. 22, 1995), perm. app. denied (Tenn. Apr. 8, 1996); State v. Walter Jones,
No. 02C01-9307-CR-00155, 1994 WL 456347, at *2-3 (Tenn. Crim. App. Aug. 24, 1994),
perm. app. denied (Tenn. Jan. 3, 1995).




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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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