            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE             FILED
                              JULY 1997 SESSION
                                                        September 18, 1997

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,                  )    C.C.A. NO. 03C01-9701-CR-00011
                                     )
             Appellee                )    JOHNSON COUNTY
                                     )
v.                                   )    HON. LYNN W. BROWN,
                                     )    JUDGE
CECIL WILLIAMSON,                    )
                                     )    Introduction of contraband in a penal
             Appellant               )    institution




FOR THE APPELLANT                         FOR THE APPELLEE

David F. Bautista                         John Knox Walkup
District Public Defender                  Attorney General & Reporter

Gerald L. Gulley, Jr.                     Michael J. Fahey, II
Contract Appellate Attorney               Assistant Attorney General
P.O. Box 1708                             450 James Robertson Parkway
Knoxville, TN 37901-1708                  Nashville, TN 37243-0493
(on appeal)
                                                  David E. Crockett
             Robert Y. Oaks                             District Attorney
General
Assistant Public Defender
Main Courthouse                           Lisa Nidiffer Rice
Elizabethron, TN 37643-3328               Assistant District Attorney General
(at trial)                                Rte. 19 Box 99
                                                 Johnson City, TN 37601




OPINION FILED


AFFIRMED


JOHN K. BYERS
SENIOR JUDGE
                                    OPINION

             The defendant was convicted of introducing marijuana into a penal

institution in violation of T.C.A. § 39-16-201 and was sentenced to serve six years.

             The defendant raises the following issues:


             I.     The “punitive segregation” and other sanctions
             applied to the appellant for possessing contraband
             narcotics within a penal institution, and which are
             described as “punishments” by the Tennessee
             Department of Corrections, preclude subsequent
             indictment and trial for the same offense on grounds of
             double jeopardy.

             II.    The process by which prisoners who violate prison
             rules against possession of illegal contraband are
             selected for prosecution in state court is a selective
             enforcement that is devoid of any rational basis, and
             therefore a violation of the equal protection and due
             process rights of the appellant.

             III.  The trial judge erred as a matter of law by denying
             the motions for judgment of acquittal and a new trial,
             where there was not sufficient evidence to sustain a
             conviction of the appellant.


             We affirm the judgment of the trial court.

             The evidence introduced by the state, unrefuted by the defendant,

accredited by the jury and approved by the trial judge, shows:

             On February 25, 1995, the defendant was working the child care

visitor’s center, where he had access to the visitation gallery, which would bring him

in contact with persons from outside the prison.

             The defendant entered a toilet which was adjacent to the gallery and

which was under surveillance by guards. A guard observed the defendant putting

something into his rectum. The defendant was accosted by the guard and a search

revealed a string protruding from the defendant’s rectum. The defendant was

placed in a cell where any bowel movement he had could not be disposed of.

Within 24 hours, the defendant passed a package which contained marijuana.


                                          -2-
              The defendant told the prison officials he was “muling” [delivering] the

marijuana to another inmate whom he would not name.

              The defendant claims the evidence is insufficient to convict him of

introducing marijuana into the prison because there is no direct evidence of how he

got possession of the marijuana.

              The defendant relies upon the case of State v. Hicks, 835 S.W.2d 32

(Tenn. Crim. App. 1992) to support his argument. We believe Hicks is

distinguishable from this case because, in Hicks, the evidence clearly showed the

accused in that case was not involved in the introduction of the banned substance

(whiskey) into the prison but only moved the whiskey within the institution after it had

been deposited within the prison by others, unaided by the accused. Id. at 38.

              The evidence in this case shows the defendant was in contact with

people who came into the prison where the defendant was working. The defendant

inserted the marijuana into his rectum in a bathroom adjacent to the place of contact

with people from outside the prison. The most reasonable conclusion to be drawn

from this is that the defendant, with the aid of someone outside the prison, was

involved in the introduction of the marijuana into the prison.

              The trial judge properly instructed the jury on the law as it applies to

aiding and abetting the comission of a crime and in the requirements of the law

regarding convictions based on circumstantial evidence.

              There is sufficient circumstantial evidence in the case to exclude any

other reasonable hypothesis than the guilt of the defendant of the offense charged,

and there is sufficient evidence for a reasonable trier of fact to find guilt beyond a

reasonable doubt.

              The defendant may not prevail on the double jeopardy claim. In Ray v.

State, 577 S.W.2d 681 (Tenn. Crim. App. 1978), the Court held that the imposition

of prison discipline for the purposes of institutional control does not bar prosecution

for the criminal offense which gave rise to the prison discipline. We find no relevant

cases holding otherwise.




                                           -3-
              The defendant claims the practice of the prison officials in referring

some, but not all, prisoners who commit crimes while incarcerated, denies him equal

protection of the law and violates his due process rights.

              State officials may selectively prosecute some who commit crime and

not prosecute others who commit crime without violating equal protection or due

process rights of an accused. Yearwood v. State, 455 S.W.2d 612 (Tenn. Crim.

App. 1970); United States v. Allen, 954 F.2d 1160 (6th Cir. 1992).

              Selective enforcement is unconstitutional when the selection process

is based upon arbitrary calssification of those to be prosecuted. Oyler v. Boles, 368

U.S. 448, 82 S. Ct. 501 (1962).

              The defendant does not show that there is an arbitrary classification of

the state for which prosecution is reserved or that he is the member of any class

arbitrarily selected for prosecution. He, therefore, has failed to show any basis for

the dismissal of the indictment in this case.

              The judgment of the trial court is affirmed.




                                                 John K. Byers, Senior Judge

CONCUR:




David H. Welles, Judge




Thomas T. Woodall, Judge




                                          -4-
