            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE             FILED
                                AUGUST 1997 SESSION
                                                           December 23, 1997

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
STATE OF TENNESSEE,                    )
                                       )    C.C.A. 03C01-9612-CR-00460
            Appellee,                  )
                                       )    JOHNSON COUNTY
v.                                     )
                                       )    Hon. Lynn W. Brown
JIMMY BOWEN                            )
                                       )    (Poss. of Contraband in Penal Inst.)
            Appellant.                 )
                                       )




FOR THE APPELLANT                           FOR THE APPELLEE

Laura Rule Hendricks                        John Knox Walkup
Eldridge, Irvine & Hendricks                Attorney General & Reporter
606 W. Main Street, Suite 350
P.O. Box 84                                 Sandy Copous Patrick
Knoxville, TN. 37901-0084                   Assistant Attorney General
                                            2nd Floor Cordell Hull Building
                                            425 Fifth Avenue North
                                            Nashville, TN. 37243-0943

                                            David E. Crockett
                                            District Attorney General
                                            Route 19, Box 99
                                            Johnson City, TN. 37601

                                            Lisa D. Nidiffer
                                            Assistant District Attorney General
                                            Unicoi County Courthouse
                                            Erwin, TN. 37650




OPINION FILED:__________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                                 OPINION

        The appellant, Jimmy Bowen, appeals as of right his conviction and sentence

following a jury trial in the Criminal Court of Johnson County. The appellant was

indicted by the Johnson County Grand Jury for the knowing possession of contraband,

to wit: marijuana, in a state penal institution where prisoners are quartered, without the

express written consent of the institution’s chief administrator, a Class C felony. See

Tenn. Code Ann. § 39-16-201 (1991 repl.). Following his conviction, the appellant

was ordered to pay a five thousand ($5,000) dollar fine and serve six years in the

Tennessee Department of Correction as a Range I standard offender. 1 The sentence

was ordered to run consecutive to a seven-year sentence the appellant was then

serving for convictions he received in 1993.

        The judgment of the trial court is affirmed.

        The appellant raises five issues in this appeal. He contends that: (1) The trial

court improperly denied his motion for a mistrial after the prosecution elicited witness

testimony concerning the appellant’s invocation of his right to remain silent; (2) The

State failed to prove an essential element of the charged offense concerning the

express written consent of the prison’s chief administrator; (3) His conviction and

sentence for the contraband possession, following administrative discipline for the

same offense, violated double jeopardy; (4) The State arbitrarily selected the appellant

for prosecution in violation of equal protection; and (5) The trial court erred in ruling

that the chain of custody over the package marked as exhibit one was sufficient to

allow it into evidence.

                                    FACTUAL BACKGROUND

        The appellant was an inmate at the Northeast Correctional Center (NECC) in

Johnson City. On February 19, 1995, he received a visit from his wife in the NECC

        1
          At the sent enc ing he aring , the tr ial cou rt ack now ledge d tha t the a ppe llant h ad m ultiple
convictions dating back to 1967 and should be sentenced as a Range II or III offender. However, the
State failed to provide proper notice as to those past convictions before the sentencing hearing. The trial
court, therefore, reluctantly sentenced the appellant as a Range I standard offender. That sentencing
range is r eflected in the corre cted jud gme nt entere d on Au gust 8, 19 96.

                                                      2
visiting gallery. During the visit, Sergeant Pat Carper observed the appellant’s wife

reach under her blouse, pull out a small wrapped package, and secretly hand it to the

appellant. Sergeant Carper immediately directed another NECC employee, Officer

David Musser, to apprehend the appellant in the gallery and take him to the strip

search room. On the way to the search room, Officer Musser observed the appellant

attempt to hand the wrapped package to other inmates before he threw it onto a

vending table. Officer Musser, thereafter, obtained the package and discovered that it

contained a plant-like material wrapped in black electrical tape. He and Sergeant

Carper delivered the package to internal affairs at the NECC for field testing. 2

        At trial, Lieutenant Randy Lee, an officer with internal affairs at NECC, testified

that he received the package from Officer Musser and Sergeant Carper. Lee stated

that after he obtained the package, he sent it directly to the TBI Crime Lab in Knoxville

for field testing. When the tests were concluded, Lee recovered the package along

with a report indicating that the plant-like material was 29.8 grams of marijuana.

Lee testified that the package, admitted into evidence as exhibit one, matched the

package he sent to the TBI Lab.

        Celeste White, a chemist for the TBI Crime Lab, testified for the State

concerning the testing and handling of the marijuana package. White stated that she

received the package from Lieutenant Lee on February 27, 1995. Upon receipt at the

crime lab, the package was given a TBI label containing a lab number, the appellant’s

name, the date received, and White’s initials. The package was then stored in an

evidence vault until the field tests were conducted. White testified that she tested the

plant material and discovered that it was approximately 29.8 grams of marijuana. She

stated that after the tests were concluded, the package was returned to the NECC

along with a report indicating the test results.


        2
          At trial, the State introduced into evidence a clear plastic bag containing a plant-like material
and black electrical tape. The bag was admitted and marked as exhibit one. Sergeant Carper testified
that the package in exhibit one was similar to the taped object taken from the appellant. Officer Musser
also testified and indica ted that ex hibit one wa s identical to th e pack age he took fro m the appellant.

                                                     3
                                        ANALYSIS

       The appellant first contends that he was entitled to a mistrial after the

prosecutor elicited testimony concerning the appellant’s invocation of his right to

remain silent.

       This issue is without merit.

       At trial, Lieutenant Lee testified that he met with the appellant after the package

of marijuana was discovered and read the appellant his Miranda rights. Lee further

indicated that the appellant signed a rights-waiver form. Over the defense counsel’s

objection, the prosecutor continued a line of questioning in which Lieutenant Lee

ultimately stated that, during the preliminary investigation, the appellant “had no

statement to make whatsoever.”

       Following Lee’s testimony, the defense counsel moved for a mistrial. The trial

court denied the defense motion and chose to administer a special jury instruction to

remedy the prosecutor’s error. The trial court instructed the jury as follows:

       Members of the Jury, the law in this country has been for two hundred
       years that that you cannot consider someone’s silence against them. In
       other words, if someone chooses to not make a statement just as if they
       choose to not testify on their behalf if they’re a defendant in a trial, you
       can’t consider that for any purpose whatsoever ever, either for them or
       against them. And, the district attorney should should not have gotten
       anything about this in the record. It was improper. And so, first, I I must
       instruct you that you are not to consider whatsoever, certainly you’re not
       to consider against Mr. Bowen if if you find that that he chose not to talk
       to the investigator because everybody’s got that right. If an investigator
       walks up to you and asks you about something and you’re got a right to
       say, ‘sorry. I don’t want to talk about it. Go prove your case and do it
       whatever way you want to, but I’m not going to talk to you.’ And, that’s
       been the law of the land for good reason for hundreds of years.

       After giving the jury instruction, the trial court polled each juror to determine if

he or she could completely disregard the testimony concerning the appellant’s silence.

Only one of the twelve jurors expressed difficulty in following the trial court’s

instruction. The trial judge acknowledged the juror’s hesitancy and took special care

to thoroughly question and instruct the juror. After an extensive open-court interview,

each juror assured the trial court that the testimony concerning the appellant’s silence


                                              4
would be disregarded. The trial court determined that a mistrial was unnecessary.

       The decision whether to grant a mistrial is within the sound discretion of the trial

court and will not be overturned on appeal unless there was an abuse of that

discretion. See State v. Seay, 945 S.W.2d 755, 764 (Tenn. Crim. App. 1996); State v.

Jones, 733 S.W.2d 517, 522 (Tenn. Crim. App. 1987). A mistrial is usually

appropriate in a criminal case only where there is a “manifest necessity” to correct

damage done to the judicial process when some event has occurred which precludes

an impartial verdict. See Arnold v. State, 563 S.W.2d 792, 794 (Tenn. Crim. App.

1977). The burden of demonstrating a “manifest necessity” lies with the appellant.

       In this case, we find that the trial court exercised proper discretion in denying

the appellant’s motion for a mistrial. Although we agree that the prosecutor acted

improperly in eliciting testimony concerning the appellant’s silence, we find that the

trial court’s curative instruction adequately remedied any possible prejudice from the

improper testimony. The appellant has failed to demonstrate a manifest necessity

sufficient to warrant a mistrial.

                                            II.

       The appellant next contends that the State failed to prove an essential element

of the charged offense, to wit: that the prison’s chief administrator had not given

express written consent for the appellant to possess marijuana.

       Although this issue is extremely close, we find it to be without merit.

       The appellant’s argument turns on whether the evidence at trial was sufficient

to sustain his conviction. When an appellant challenges the sufficiency of the

convicting evidence, we must review the evidence in the light most favorable to the

prosecution in determining whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” See Jackson v. Virginia,

443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-

evaluate the evidence and are required to afford the State the strongest legitimate



                                            5
view of the proof contained in the record as well as all reasonable and legitimate

inferences which may be drawn therefrom. See State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978).

       Questions concerning the credibility of witnesses, the weight and value to be

given to the evidence, and any factual issues raised by the evidence are resolved by

the trier of fact, not this Court. See Cabbage, 571 S.W.2d at 835. A guilty verdict

rendered by the jury and approved by the trial judge accredits the testimony of the

witnesses for the State, and a presumption of guilt replaces the presumption of

innocence. See State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

       An appellant challenging the sufficiency of the evidence has the burden of

demonstrating to this Court why the evidence is insufficient to support the verdict

returned by the trier of fact. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences which

may be drawn from the facts are insufficient, as a matter of law, for a rational trier of

fact to find the appellant guilty beyond a reasonable doubt. See State v. Tuggle, 639

S.W.2d 913, 914 (Tenn. 1982).

       In this case, a jury convicted the appellant of marijuana possession in a state

penal institution without the express written consent of the prison’s chief administrator.

The applicable statute provides that, “[i]t is unlawful for any person to [k]nowingly

possess any of the materials prohibited in subdivision (a)(1) while present in any penal

institution where prisoners are quartered or under custodial supervision without the

express written consent of the chief administrator of the institution.” See Tenn. Code

Ann. § 39-16-201(a)(2) (Supp. 1996). Subsection (a)(1) of the statute includes

controlled substances in the list of prohibited materials.

       The appellant contends that the convicting evidence was insufficient because

the State failed to prove that he possessed the marijuana without the express written

consent of the prison’s chief administrator. Although we acknowledge that direct

testimony from the NECC warden would have prevented any issue in this regard, we

                                              6
find that the essential element concerning the lack of express written consent was

sufficiently proved by circumstantial evidence.

         Circumstantial evidence includes collateral facts and circumstances which do

not directly prove the fact in issue but from which the fact may be logically inferred.

See State v. Thompson, 519 S.W.2d 789, 792-93 (Tenn. 1975). We find that the

record in this case contains several facts and circumstances sufficient to prove that

the prison’s chief administrator had not given express written consent to the

appellant’s possession of marijuana.

         First, the record reflects that the appellant’s wife surreptitiously handed the

appellant a package tightly wrapped and concealed in black electrical tape. When

NECC prison guards acted to apprehend the appellant and obtain the hidden

package, the appellant tried to discard the package by passing it off to other prison

inmates. The actions of the appellant and his wife in attempting to smuggle the

package into the NECC are clearly inconsistent with the notion that the appellant had

express written consent to possess marijuana. From that evidence, a reasonable

person could conclude that the appellant did not have the warden’s express written

consent to possess the package of marijuana. See State v. Jimmy Cullop, Jr., No.

03C01-9607-CR-00281 (Tenn. Crim. App., at Knoxville, March 18, 1997).

         Moreover, at the time of the appellant’s offense, marijuana was a Schedule II

controlled substance which had no legal use in the State of Tennessee. See Tenn.

Code Ann. § 39-17-408 (6)(A) (1991 repl.). 3 It is almost inconceivable that a prison

administrator would give permission for an inmate to possess a totally illegal

substance in prison. We, therefore, conclude that the jury was justified in finding

         3
          The T ennes see C ode co ntinues to treat m arijuana a s a Sch edule II co ntrolled su bstanc e. See
Ten n. Co de A nn. § 39-1 7-40 8 (6)( A) (1 997 ). Un der th e Te nne sse e Co de, a cont rolled subs tanc e is
listed in Schedule II if the commissioner of health finds that: (1) the substance has a high potential for
abu se; (2 ) it has a cur rently a cce pted me dica l use in treatm ent in the U nited State s, or c urre ntly
accepted medical use with severe restrictions; and (3) the abuse of the substance may lead to sever
psychic o r physical de pende nce. See Tenn. Code Ann. § 39-17-407 (1997). Tennessee Code
Annotated section 39-17-408 (6)(A) treats marijuana as a Schedule II controlled substance “only for the
purposes enumerated in the Controlled Substances Therapeutic Research Act, compiled in title 68,
cha pter 5 2" of th e Te nne sse e Co de. H owe ver, th e Ge nera l Ass em bly rep ealed chap ter 52 of title 6 8 in
1992. See Tenn . Code A nn. §§ 68 -52-101 -- 107 (rep ealed 19 92).

                                                         7
beyond a reasonable doubt that the appellant possessed contraband in a state penal

institution without the express written consent of the prison’s chief administrator.

                                                            III.

         The appellant next contends that his conviction and sentence for the

possession of contraband in the State penal institution violated double jeopardy. He

argues that the administrative discipline he received from the Tennessee Department

of Correction, prior to trial, precluded the State from prosecuting him thereafter for the

same offense.

         This issue is without merit.

         Following the discovery of marijuana in the appellant’s possession, the

appellant received administrative discipline by prison authorities at the Tennessee

Department of Correction (“TDOC”). 4 The appellant relies on the decision in United

States v. Halper, 490 U.S. 435, 109 S.Ct. 1892 (1989) to assert that his prosecution

and conviction for the possession of contraband, following administrative discipline for

the same offense, placed him in double jeopardy.

         The appellant’s reliance on Halper is misplaced. In Halper, the United States

Supreme Court addressed whether the imposition of a $130,000 civil penalty for

Medicare fraud, following a criminal conviction for the same offense, violated double

jeopardy. See 109 S.Ct. at 1896. The respondent in Halper had been convicted in

criminal proceedings before the Government filed a civil suit against him for the same

offense. See id. The Court held that a $130,000 liability in the civil suit constituted a

second punishment because the penalty amount was disproportionate to the actual

harm caused by the respondent’s actions. See id. at 1904. The Court, therefore, held



         4
           The record contains evidence from a pre-trial hearing in which the appellant’s counsel argued
that th e app ellant ’s upc om ing tria l was selec tive pr ose cutio n in vio lation of eq ual pr otec tion a nd do uble
jeopardy. At that hearing, Lieutenant Randy Lee testified that the appellant received three days of
segregated confinement as administrative discipline for the marijuana possession. Lieutenant Lee
further tes tified that adm inistrative disc ipline at the N ECC is impo sed by a T DOC Disciplinary B oard.
Accor ding to Lieu tenant Le e, the Disc iplinary Board never ad ds an a dditional se ntence or jail time to
what the inmate is currently serving. Instead, disciplinary measures include warnings, restrictions of
privileges, a ssignm ents of e xtra work duty, and se gregate d confin eme nt.

                                                            8
that the civil penalty violated double jeopardy.

         The Supreme Court’s decision in Halper is not applicable to the facts in the

appellant’s case. Unlike the respondent in Halper, the appellant was not subjected to

liability in two separate judicial proceedings. To the contrary, the appellant was merely

disciplined by administrative authorities at the TDOC before his trial in the criminal

court.

         It is well settled in Tennessee that administrative proceedings by state prison

authorities do not place defendants in “jeopardy” within the meaning of the Double

Jeopardy Clause. See Turner v. Gore, 175 S.W.2d 317, 319 (Tenn. 1943); Ray v.

State, 577 S.W.2d 681, 682 (Tenn. Crim. App. 1978); Terry Davis v. State, No.

03C01-9610-CR-00358 (Tenn. Crim. App., at Knoxville, June 12, 1997). Therefore,

we conclude that the administrative discipline in this case did not preclude the State

from prosecuting the appellant for the same offense.

                                             IV.

         The appellant next contends that the State arbitrarily selected him for

prosecution in violation of his equal protection rights. The appellant argues that the

NECC warden arbitrarily determines which cases are referred to the district attorney

for prosecution.

         This issue is without merit.

         The law in Tennessee is well settled that state officials enjoy broad discretion in

determining what cases are selected for prosecution. See Cooper v. State, 847

S.W.2d 521, 536 (Tenn. Crim. App. 1992); Yearwood v. State, 455 S.W.2d 612, 617

(Tenn. Crim. App. 1970). That discretion does not violate the principles of equal

protection unless the choice to prosecute is “deliberately based upon an unjustifiable

standard such as race, religion, or other arbitrary classification.” See Oyler v. Boles,

368 U.S. 448, 456 (1962).




                                              9
       In this case, the record is devoid of any evidence demonstrating that the

warden at the NECC arbitrarily selects cases to be referred for prosecution. To the

contrary, at a pre-trial hearing, Warden Howard Carlton of the NECC testified that he

considers specific factors before deciding whether to refer a case to the district

attorney. Warden Carlton stated that he considers whether the case involves a felony

and whether there are sufficient facts for the district attorney to present in criminal

proceedings. Warden Carlton further stated that criteria such as an inmate’s race,

religion, or ethnic origin is never considered.

       We find that the discretion exercised by the NECC warden does not violate the

principles of equal protection. The appellant’s claim that his prosecution violated the

Equal Protection Clause is without merit.

                                            V.

       The appellant next contends that the chain of custody over the package

marked as exhibit one was insufficient to allow it into evidence.

       This issue is without merit.

       During the direct examination of Sergeant Carper, the prosecution introduced a

clear plastic bag, marked as exhibit one, containing a plant-like material with black

electrical tape. The record reflects that the appellant failed to object to the admission

of the plastic bag at trial. Therefore, in this appeal, the appellant has waived any

challenge to the admission of the package into evidence.

       Moreover, even if the issue were properly preserved for appeal, we find that the

State established legally sufficient chain of custody over the testing and handling of

the package. We conclude that the trial court exercised proper discretion in allowing

the package into evidence.

       Based upon the foregoing, the judgment of the trial court is affirmed.




                                            10
                                   ____________________________
                                   WILLIAM M. BARKER, JUDGE




CONCUR:


___________________________
GARY R. WADE, JUDGE


___________________________
PAUL G. SUMMERS, JUDGE




                              11
