         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       April 2000 Session

         STATE OF TENNESSEE v. LAWRENCE DAVIS SHERRILL

                       Appeal from the Circuit Court for Carroll County
                        No. 98CR-1256      C. Creed McGinley, Judge



                    No. W1999-01488-CCA-R3-CD - Decided July 27, 2000


       This appeal results from the defendant's conviction by a Carroll County jury for introducing
contraband into a penal institution. He was sentenced to six years incarceration and fined $2,500.
On appeal, the defendant asserts that the trial court erred in not granting his motion for a new trial
based on the lack of evidence to corroborate the testimony of his accomplice required for a
conviction. After careful review of the record, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and DAVID G.
HAYES, JJ., joined.

Steven L. West, McKenzie, Tennessee (on appeal) and John E. Williams, Huntingdon, Tennessee
(at trial) for the appellant, Lawrence Davis Sherrill.

Paul G. Summers, Attorney General and Reporter; Tara B. Hinkle, Assistant Attorney General;
Robert “Gus” Radford, District Attorney General; and Eleanor Cahill, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         On September 21, 1998, a Carroll County jury returned a guilty verdict against the defendant,
Lawrence Sherrill, for introducing contraband into a penal institution where prisoners were housed.
On October 29, 1998, the trial court sentenced the defendant to six years in prison and assessed a
fine of $2,500. On November 25, 1998, the defendant filed a motion for new trial on the grounds
that the evidence was insufficient to support a conviction and, on May 7, 1999, the defendant filed
a supplement to motion to dismiss alleging that Tennessee law does not allow a conviction based
solely on the testimony of an accomplice. After considering the evidence and arguments of counsel,
the trial court denied the defendant's motion on May 10, 1999. The defendant appeals on a single
issue: Whether the trial court erred in denying his motion for a new trial or directed verdict when
the only incriminating evidence was the uncorroborated testimony of a co-defendant. After a careful
review of the record, we affirm the judgment of the trial court.
                                                        FACTS

         On Thursday, March 12, 1998, co-defendant Casey Renae Scott1 was living at her
grandmother's house in Huntingdon, Tennessee, when she received several collect phone calls from
the defendant. Scott had dated the defendant, who was housed at the jail, for about a year and a half
prior to that time. She testified that the defendant told her to put some marijuana in a book and bring
it to the jail. Since the defendant's visiting day was not until the next Sunday, he arranged to have
the marijuana brought in by Tracey Pearson, a fellow inmate. The defendant told Scott to get the
drugs from his brother, Kenny, and put it in the binding of the book. She was to glue the ends of the
binding together. At trial, Scott identified the Bible in which she placed the marijuana. She stated
that her name appeared on that Bible but testified that she scratched it out and put Pearson's name
on it in two places. After preparing the Bible, Scott was told by the defendant to give it to Trenell
Johnson to bring to Pearson at the jail. Johnson was to pick the book up from Scott at her residence.
Johnson arrived at Scott's residence around 6:30 or 7:00 p.m., at which time Scott handed her a sack
containing the Bible, two envelopes, and a black pair of sweat pants. Scott did not see the items
again until she was arrested.

        On cross-examination, Scott testified that she received a sentence of three years at thirty
percent as part of her plea agreement. She admitted that she did not tell the police the whole story
on March 12, 1998, when she gave a false statement that Pearson, rather than the defendant, told her
that Johnson was coming over to get the Bible. At trial, she stated that she talked to Pearson on the
phone, but it was the defendant who told her that Johnson was coming over. She also admitted that
she lied when she told police that there was nothing in the Bible when she gave it to Johnson. On
the Wednesday before the trial, Scott decided to tell the truth. She admitted that she had never
implicated the defendant until that Wednesday, when the prosecutor came to the jail to see her. She
stated that the State had not threatened her or made promises to her in exchange for her testimony.
Scott had not talked to Johnson recently but did see her outside the courtroom.

        On redirect, the witness testified that the defendant had written her letters telling her not to
testify. She agreed that the letters said, "But whoever wants to testify against me, good luck" and
"Your brother would spread this around that you're a snitch to everybody," which scared her.

         On recross, Scott admitted that she forgot when asked on cross-examination that the
prosecutor came to see her on the Thursday before trial and that she gave the prosecutor two letters
the defendant had written her. Scott had received them the week before the trial and recognized the
defendant's handwriting. Another letter had come the day of the trial, which she did not read. She
testified that she was scared, because the letters sounded like the defendant did not want her to testify
against him and wanted her to lie. The witness denied that the defendant threatened her in the letters,
but then stated on further redirect that she was threatened. The letters were introduced into evidence.



         1
           Scott testified that she had already pled guilty to introducing a drug or causing a drug to b e introdu ced into
the coun ty jail.

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        Trenell Johnson was called by the State as a witness. She testified that she knew the
defendant in school but had not dated him. Johnson was dating Tracey Pearson in March of 1998
when the alleged incident occurred. At that time, Pearson was housed in the county jail, and Johnson
planned to visit him on his regular Thursday visiting day, March 12. While she was still at her
cousin’s house, the defendant called her and wanted her to pick up some things from Casey Scott
to bring to the jail. He told her to give the items to Pearson. According to the witness, she went to
Casey Scott’s house and received some items in a bag. She denied knowing what was in the bag,
which she took to the jail. There was a sign outside the jail waiting area that instructed visitors to
have a name on every person’s belongings, so she put the name [Tracey Pearson] on the bag.
Marijuana was found in the Bible, and Johnson denied knowing that it was there.

        On cross-examination, Johnson stated that she was not charged in the incident. She then
stated that she did not talk to the defendant at her cousin’s house and that he did not tell her to go
get anything. She testified that it was Pearson who told her to get the items from Scott, and she did
not know if the defendant was ever going to see those items. According to Johnson, Pearson had
been with her the week before the trial but had since left. On redirect, Johnson admitted that she told
the prosecutor that the defendant called her cousin’s house but stated that she did not actually talk
to him.

          The State’s next witness was Tammy Annette Hoffman, who was a jailer with the Carroll
County Sheriff’s Department on March 12, 1998. She stated that it is a routine procedure for the
jailers to examine packages that are brought in for inmates. Hoffman received a package for Tracey
Pearson that contained a pair of jogging pants and a Bible. When Hoffman opened the Bible, she
noticed some green plant-like material in the binding of the book and notified the “chief upstairs.”
The chief cut open the binding of the Bible and, upon discovery of the marijuana, took custody of
the book. On cross-examination, the witness examined the Bible and stated that the marijuana was
still in the binder of the Bible.

         Anthony Moon, Chief Deputy for the Carroll County Sheriff’s Department, also testified for
the State. Deputy Moon was at the jail on March 12, 1998. He was called by jailer Tammy Hoffman
to come upstairs, because something was found in an incoming package. When he arrived upstairs,
Hoffman showed Deputy Moon a Bible that had marijuana in the binding. He identified the Bible
at trial. After taking custody of the book, Deputy Moon took it downstairs and locked it in the drug
locker. The book was eventually sent to the lab. As a result of Deputy Moon’s investigation, the
defendant and Casey Scott were charged.

        On cross-examination, Deputy Moon testified that he did not believe the statement that Casey
Scott gave him that night. He stated that his office had made several unsuccessful attempts to serve
a subpoena on Tracey Pearson but was able to serve his girlfriend, Trenell Johnson.

       Betty Kathryn Sherriff, special agent forensic scientist and regional crime laboratory
supervisor for the Tennessee Bureau of Investigation, described the procedure used to identify



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suspected drugs in substances submitted to the lab.2 In testing a suspected marijuana substance, Ms.
Sherriff stated that she first weighs the substance and then performs a microscopic examination and
a modified Deuquenois Levine test. If both tests are positive, she concludes that the substance is
marijuana. Ms. Sherriff testified that she ran the routine tests on the substance found in the Bible.
The substance weighed 1.8 grams, and her tests identified the plant material as marijuana.

        On cross-examination, Ms. Sherriff stated that she was familiar with the term “joint” as one
hand-rolled marijuana cigarette. According to Ms. Sherriff, an average marijuana cigarette weighs
less than 1 gram, so 1.8 grams was enough marijuana to roll at least two cigarettes. She stated that
she had no knowledge of the defendant’s involvement with the marijuana apart from the fact that his
name was on the request for examination form she received. Neither Trenell Johnson’s nor Tracey
Pearson’s name appeared on the form. Ms. Sherriff testified that the microscopic examination she
uses to identify marijuana would not be positive if marijuana residue was merely rubbed on a coat,
but she was not sure if the modified Deuquenois Levine test would be positive. In that case, she
explained that she would take a piece of the coat and inject a sample of it into a mass-spectrometer
to identify tetrahydrozoline (THC) present in marijuana. She did not do that procedure in this case.
Ms. Sherriff denied that a 50 gallon barrel of water would test positive for THC if two drops of the
substance were dropped into it.

        The State rested its case. The defense did not offer any proof, and the case went to the jury.
The defendant was subsequently found guilty of introduction of drugs into a penal institution, and
the jury set a fine of $2,500.

                                                       ANALYSIS

                                                  Standard of Review

        The findings of fact by the trial court are conclusive on appeal unless the evidence
preponderates against those findings. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). This court
will not reweigh or reevaluate the factual evidence, and the trial court’s assessment of the credibility
of witnesses, along with the weight and value to be given to their testimony, will not be disturbed
on appeal. Id. Questions involving the trial court’s application of law to the facts of a case are
reviewed de novo by this court, as are mixed questions of law and fact. Id.; Ruff v. State, 978 S.W.2d
95, 96 (Tenn. 1998); Harries v. State, 958 S.W.2d 799, 802 (Tenn. Crim. App. 1997).

                                              Corroborating Evidence

       The defendant argues that his motion for a new trial or acquittal should have been granted,
because he cannot be convicted on the uncorroborated testimony of his alleged accomplice, Casey
Renae Scott. He argues that her testimony was the only incriminating testimony presented at trial


         2
          Sherriff was the first witness to testify at trial, but it makes more sense chronologically for us to place her
testimony at the en d of our recitation of th e facts.

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linking him to the drugs. Trenell Johnson’s testimony, the defendant contends, was essentially that
all arrangements to transport contraband to the jail were made between her and Tracey Pearson,
which did not corroborate the accomplice’s story. Upon careful review of the record, we affirm the
defendant’s conviction.

        In Tennessee, it is well established that a defendant cannot be convicted of a felony on the
uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994);
Sherrill v. State, 321 S.W.2d 811, 815 (Tenn. 1959); State v. Allen, 10 S.W.3d 286, 289 (Tenn.
Crim. App.), perm. app. denied (Tenn. 1999); State v. Anderson, 985 S.W.2d 9, 15 (Tenn. Crim.
App. 1997), perm. app. denied (Tenn. 1998). Whether an accomplice’s testimony has been
sufficiently corroborated to allow a guilty verdict is a question for the jury. Bigbee, 885 S.W.2d at
803. However, our courts have given us guidance in determining whether sufficient corroborating
evidence is present:

                [T]here must be some fact testified to, entirely independent of the
                accomplice’s testimony, which, taken by itself, leads to the inference,
                not only that a crime has been committed, but also that the defendant
                is implicated in it; and this independent corroborative testimony must
                also include some fact establishing the defendant’s identity. This
                corroborative evidence may be direct or entirely circumstantial, and
                it need not be adequate, in and of itself, to support a conviction; it is
                sufficient to meet the requirements of the rule if it fairly and
                legitimately tends to connect the defendant with the commission of
                the crime charged. It is not necessary that the corroboration extend
                to every part of the accomplice’s evidence. The corroboration need
                not be conclusive, but it is sufficient if this evidence, of itself, tends
                to connect the defendant with the commission of the offense,
                although the evidence is slight and entitled, when standing alone, to
                but little consideration.

Id. (citations omitted).

        We conclude that sufficient corroborating evidence was presented at trial to support the
accomplice’s testimony. The Bible owned by the accomplice, Casey Scott, was introduced at trial
and appeared just as she testified that she prepared it according to the defendant’s instructions by
putting marijuana in the binding. Scott’s name was apparently scratched out and replaced in two
places with that of Tracey Pearson. This supports Scott’s testimony that, since the defendant’s
visiting day was not until Sunday, he had to get the marijuana into the jail through another prisoner
whose visiting day was that Thursday. In her testimony, Trenell Johnson, who was not an
accomplice, stated that Pearson’s visiting day was Thursdays.

        Scott’s testimony that the defendant arranged to have Trenell Johnson pick up the Bible for
transfer to Tracey Pearson was also corroborated by Johnson’s testimony. Johnson testified that she
received a call from the defendant, whether directly or indirectly through Pearson, on that Thursday

                                                   -5-
telling her to go to Scott’s house to pick up a package to bring to the jail. Johnson did so and was
caught by the jailers when she attempted to give the Bible to Pearson. Testimony from the jailers,
in conjunction with her own admissions, placed Johnson at the jail on Thursday, March 12, 1998,
and verified that the marijuana was to be passed to Pearson in the binding of the Bible. This
supports the accomplice’s version of how she was instructed by the defendant to get the drugs to him
on his non-visiting day. Although the cord between the defendant and the drugs was thin in places,
it was sufficient to connect the defendant to the crime.

         The defendant attempted to discredit the testimony of Trenell Johnson at trial, and the record
shows that her testimony was contradictory at times. However, the issue of the credibility of a
witness’s testimony was presented to the jury at trial and is an issue exclusively entrusted to the jury
as the trier of fact. Bigbee, 885 S.W.2d at 804. In addition, whether an accomplice’s testimony has
been sufficiently corroborated is also a matter entrusted to the jury. Id. The jury resolved these
issues in favor of the State, and we see nothing in the record that compels us to disturb this finding.

                                Motion for a New Trial or Acquittal

       The defendant contends that the trial court erred in denying his motion to dismiss or for a
new trial. The motion to dismiss will be treated as a motion for judgment of acquittal pursuant to
Tennessee Rule of Criminal Procedure 29(c).

      At the conclusion of the trial, the jury convicted the defendant for violating Tennessee Code
Annotated § 39-16-201(a)(1):

                (a) It is unlawful for any person to:

                        (1) Knowingly and with unlawful intent take, send or
                        otherwise cause to be taken into any penal institution
                        where prisoners are quartered or under custodial
                        supervision any weapons, ammunition, explosives,
                        intoxicants, legend drugs, or any controlled
                        substances found in chapter 17, part 4 of this title.

        When a motion for acquittal is presented to the trial court, the court is only concerned with
the legal sufficiency of the evidence, rather than the weight of the evidence presented. State v.
Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App.), perm. app. denied (Tenn. 1996). In determining
sufficiency, the trial court must consider the parties’ evidence, disregard the defendant’s evidence
that conflicts with that of the State, and afford the State the strongest legitimate view of the evidence,
including all reasonable inferences. Id. at 957-58. If the evidence is legally sufficient to support a
conviction, then the motion for acquittal is denied. Our standard is the same on appeal. State v.
Anderson, 880 S.W.2d 720, 726 (Tenn. Crim. App.), perm. app. denied (Tenn. 1994).

        Tennessee Rule of Criminal Procedure 33(f) allows the trial court to grant a new trial if the
judge, acting as the “Thirteenth Juror,” disagrees with the jury verdict. The trial court must weigh

                                                   -6-
the evidence and grant a new trial if the evidence presented preponderates against the verdict.
Blanton, 926 S.W.2d at 958. When the trial court overrules a motion for a new trial, we can presume
that the judge approved the jury’s verdict. Id.

        Upon approval of the verdict, the defendant’s presumption of innocence is stripped away,
and all conflicts in testimony of witnesses are resolved in favor of the State. Bigbee, 885 S.W.2d
at 804. The question on appeal again becomes one of the legal sufficiency of the evidence to sustain
the verdict, which prohibits us from reweighing the evidence. Blanton, 926 S.W.2d at 958. In
reviewing the record, we must also keep in mind that the State is entitled to the strongest legitimate
view of the evidence and all reasonable inferences to be drawn from it. Bigbee, 885 S.W.2d at 803;
Blanton, 926 S.W.2d at 958. If the evidence viewed in this light was sufficient for any rational juror
to have found the essential elements of the convicting offense beyond a reasonable doubt, then we
must affirm the trial court’s verdict. Tenn. R. App. P. 13(e); Bigbee, 885 S.W.2d at 803.

        Because the accomplice’s testimony was sufficiently corroborated and can be credited, the
evidence presented at trial was sufficient to support the jury’s guilty verdict on every element of the
above-cited offense. When the evidence, including the accomplice’s testimony, is viewed in the
light most favorable to the State, we conclude that it was sufficient for a rational jury to have found
the defendant guilty of the crime charged beyond a reasonable doubt. The presence of marijuana in
the Bible supplied by Scott and carried to the jail by Johnson is undisputed. The evidence supports
the jury’s decision that the defendant was the person who knowingly caused the drug to be brought
into the jail. We see no reason to disturb the verdict in this case.

                                       CONCLUSION

      We conclude that the evidence in the record before us was sufficient to corroborate the
accomplice’s testimony, and, therefore, we affirm the judgment of the trial court.




                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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