        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 6, 2009

                    STATE OF TENNESSEE v. ELGY SMITH

                  Appeal from the Criminal Court for Shelby County
                        No. 07-01038 John P. Colton, Judge




                 No. W2008-02812-CCA-R3-CD - Filed April 14, 2010




A Shelby County jury convicted the Defendant, Elgy Smith, of possession of .5 grams or
more of cocaine with the intent to sell, and possession of .5 grams or more of cocaine with
the intent to deliver, both Class B felonies; possession of marijuana with the intent to sell,
and possession of marijuana with the intent to deliver, both Class E felonies. At sentencing,
the trial court merged each pair of convictions and sentenced the Defendant to twenty-five
years as a Range III, persistent offender for the cocaine offense and five years as a Range III,
persistent offender for the marijuana offense. Finding the Defendant to be a professional
criminal, the trial court also ordered the sentences to be served consecutively for a total
effective sentence of thirty years incarceration. In this appeal as of right, the Defendant
contends that the evidence is insufficient to support his convictions and that his sentence is
excessive. Following our review, we affirm the judgments of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Brett Stein (at trial); William D. Massey and Lorna S. McClusky (on appeal), Memphis,
Tennessee, attorneys for the appellant, Elgy Smith.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Dean DeCandia, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.

                                          OPINION
        Memphis Police Department (MPD) Officer Keyon Love testified that he was
patrolling the Manassas Street area of Memphis on October 23, 2006, at approximately 7
p.m. He recalled that he was in uniform and driving a marked police car. He first saw the
Defendant on the west-side of the street near a grassy area and noted that the Defendant ran
across the street to an apartment building as Officer Love passed. Officer Love turned
around to drive by the apartment building where he saw the Defendant standing outside.
However, upon seeing Officer Love, the Defendant ran into the stairway area of the building
again.

        Officer Love testified that he contacted Officer Chester Anderson, who was riding
with a trainee officer, Officer James Smith, and asked the men to drive by the apartment
building while he approached the building on foot. Officer Love stated that as Officers
Anderson and Smith neared the apartment building in their car, the Defendant again
attempted to retreat into the building but “ended up running into [him].” Officer Love
testified that as the Defendant ran toward the building, Officer Anderson saw him throw
something to the ground. Officer Anderson retrieved the item which the officers believed
to be crack cocaine. Officer Love arrested the Defendant and discovered that the Defendant
was carrying $1093 in small bills. Officer Love testified that Officer Anderson searched the
grassy area where Officer Love initially noticed the Defendant standing and recovered a bag
containing marijuana and a scale. In addition to the scales and money, the individually-
packaged bags of crack cocaine, cocaine base, and marijuana were later delivered to the
evidence room by Officer Love.

        Officer Love testified that the Defendant was not a resident of the apartment building.
He also recalled that as the three officers approached the building, there was another
individual sitting on a bucket next to the Defendant. However, the other man did not attempt
to flee and was released after an investigatory stop and frisk uncovered no evidence of illegal
activity. Officer Love testified that the Defendant did not have any drug paraphernalia
indicating that the drugs were for his personal use. He also acknowledged that he did not
personally see the Defendant with anything in his hands nor did he see the Defendant drop
anything.

        MPD Officer Chester Anderson testified that he was in uniform traveling in a marked
car when he received the call from Officer Love to assist in the investigation of a suspected
drug offense. He recalled that he and his patrol partner, Officer Smith, did not use the sirens,
yell at the Defendant, or make any attempt to arrest the Defendant until the Defendant
attempted to run into the apartment building as they approached the parking lot. He stated
that the Defendant and another man were sitting on milk crates and, as he and Officer Smith
approached, the Defendant jumped up to run and threw to the ground a baggie containing
what was later confirmed to be crack cocaine. He recalled that Officers Love and Smith
arrested the Defendant before he could enter the apartment building.

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      Officer Anderson testified that he recovered marijuana and scales from the grassy area
where the Defendant was first spotted by Officer Love. He noted that all the drugs were
packaged individually. He recalled that Officer Love delivered the evidence to the evidence
room and that he and Officer Smith transported the Defendant to the jail.

       MPD Officer James Smith testified that he and Officer Anderson received a call from
Officer Love concerning suspicious activity and that as soon as they approached the
apartment building, the Defendant attempted to flee into the building. His testimony
regarding the discovery of the drugs, scales, and money was consistent with that of Officers
Love and Anderson. He admitted that he never saw the Defendant carry in his hand or throw
anything to the ground.

        Shardonnay Boyd, a civilian employee of the Memphis Police Department Property
and Evidence Division, testified that she received the recovered items from Officer Love.
She stated that she placed into evidence six individually-packaged bags of crack cocaine, one
bag of powder cocaine, eleven bags of marijuana, a scale, and $1093 in small bills of
currency. MPD Sergeant Sonia Hicks testified that the currency was taken to the bank, so
it would not be the actual bills or denominations if presented as evidence at trial. Ronald
Goodwin, an investigator with the Shelby County District Attorney General’s Office,
testified that he transported the drugs to the Memphis location of the Tennessee Bureau of
Investigation (TBI) for weighing and testing. TBI Forensic Scientist Tarsha Boyd testified
that she received 9.3 grams of crack cocaine, 1.9 grams of cocaine base, and 24.6 grams of
marijuana from Investigator Goodwin.

       The Defendant presented the testimony of Tyrone Thomas who said that he saw the
Defendant’s arrest from his kitchen window. He described the arrest and said that the
officers pulled into the parking lot, walked straight to the Defendant, and took the
Defendant’s money. Mr. Thomas stated that he saw Officer Anderson retrieve something
from a tire in the grassy area. He testified that the Defendant did not run when the police
approached. He acknowledged that although he claimed the Defendant had been arrested
wrongfully, he did not file a complaint with the police department. He also admitted that he
used his brother’s name as an alias in the past when he had gotten into some trouble.

       Danielle Morris also testified for the Defendant. She stated that she talked to the
Defendant that night and that another man, Veto, also talked with them. She claimed that the
Defendant was standing beside her when the police arrived and that Officer Love
immediately grabbed the Defendant. Ms. Morris stated that the police frisked Veto but did
not recover a bag of marijuana laying near his foot. She never saw the Defendant run or drop
anything. She denied that the Defendant was living with her but did not offer an explanation
as to why the Defendant would have given the police her address as his residence. She
acknowledged that she never went to the police to tell them that they had arrested the wrong

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person and claimed that she had to move to West Memphis, Arkansas because she was being
threatened by Veto.

        Following a proper colloquy by counsel and the trial court, the Defendant elected not
to testify. Based upon this evidence, the jury convicted the Defendant as charged with
possession of .5 grams or more of cocaine with the intent to sell and deliver, and possession
of .5 ounces or more of marijuana with the intent to sell and deliver.

                                        ANALYSIS

                                 Sufficiency of the Evidence

        The Defendant argues that the evidence is insufficient to support his convictions. He
contends that it was reasonable to assume that the individually packaged drugs were for his
personal use absent some proof that he intended to sell or deliver them. He also argues that
“it is no crime for a man to possess money.” Specific to the marijuana conviction, the
Defendant contends that there is no proof that he ever possessed the drugs seized from the
grassy area. The State argues that the quantity of drugs possessed along with other facts
surrounding an arrest may provide an inference that the drugs were possessed for sale or
delivery. See Tenn. Code Ann. § 39-17-419. In this respect, the State contends that the
Defendant’s loitering near the apartment building, his flight each time the officers
approached the area, and the discovery of individually-packaged drugs and a large sum of
money in small bills provide sufficient evidence to support the convictions.

        An appellate court’s standard of review when the defendant questions the sufficiency
of the evidence on appeal 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). The
appellate court does not reweigh the evidence; rather, it presumes that the jury has resolved
all conflicts in the testimony and drawn all reasonable inferences from the evidence in favor
of the state. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571
S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. See
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt removes the
presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies
to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of
[both] direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93
(Tenn. Crim. App. 1999).


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        The elements necessary to establish the offenses of possession with intent to sell or
deliver .5 grams or more of cocaine or .5 ounces or more of marijuana are the same, except
for the proof of the respective controlled substance or quantity involved. Tennessee Code
Annotated section 39-17-417(a)(4) provides that “[i]t is an offense for a defendant to
knowingly . . . possess a controlled substance with intent to . . . deliver or sell the controlled
substance.” The State correctly notes that Tennessee Code Annotated section 39-17-419
provides that “[i]t 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 for the purpose of selling or otherwise
dispensing.”

        Officer Love testified that on two separate occasions, the Defendant fled into an
apartment building in which he did not reside when Officer Love approached the building
as part of his routine patrol duties. When all three officers approached, the Defendant again
attempted to flee. Officer Anderson testified that he saw the Defendant throw a baggie to
the ground, which was later determined to contain crack cocaine and cocaine base. The
entire investigation – from Officer Love’s initial spotting of the Defendant near the grassy
area until his arrest – occurred over a matter of minutes, not hours, and it was reasonable for
Officer Anderson to search the grassy area for any abandoned contraband the Defendant
might have left with his initial flight to the apartment building. Officer Love also testified
that the Defendant possessed no paraphernalia indicating that the drugs were for personal
use. The individually-packaged drugs, coupled with the large sum of money in small bills
found on the Defendant, lend further support to the inference that the Defendant possessed
the drugs with the intent to sell and deliver them. Therefore, we conclude that the evidence
is sufficient to support his convictions.

                                           Sentencing

       The Defendant also argues on appeal that the trial court imposed an excessive
sentence both in length and manner of service. The Defendant argues that the trial court
imposed the sentence after finding enhancement factors “without the assistance of a jury.”
While not disputing his status as a Range III, persistent offender, he contends that the trial
court afforded too much weight to his criminal history in arriving at the length of his
sentences. Finally, the Defendant argues that the trial court’s use of his criminal history to
also impose consecutive sentences “stands against the interest of justice” and “effectively
punish[es] [him] twice more for punishments already received.” The State argues that the
sentences are appropriate in consideration of the Defendant’s extensive criminal history.

       An appellate court’s review of sentencing is de novo on the record with a presumption
that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the

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Sentencing Commission Comments to this section note, on appeal the burden is on the
Defendant to show that the sentence is improper. This means that if the trial court followed
the statutory sentencing procedure, made findings of fact that are adequately supported in the
record, and gave due consideration and proper weight to the factors and principles that are
relevant to sentencing under the 1989 Sentencing Act, the court may not disturb the sentence
even if a different result were preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim.
App. 1991).

       “However, the presumption of correctness which accompanies the trial court’s action
is conditioned upon the affirmative showing in the record that the trial court considered the
sentencing principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d
166, 169 (Tenn. 1991). In this respect, for the purpose of meaningful appellate review,

       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found,
       state the specific facts supporting each enhancement factor found, and
       articulate how the mitigating and enhancement factors have been evaluated
       and balanced in determining the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann.
§ 40-35-210(e).

       Tennessee’s sentencing act provides:

       (c) The court shall impose a sentence within the range of punishment,
       determined by whether the defendant is a mitigated, standard, persistent,
       career, or repeat violent offender. In imposing a specific sentence within the
       range of punishment, the court shall consider, but is not bound by, the
       following advisory sentencing guidelines:

              (1) The minimum sentence within the range of punishment is the
              sentence that should be imposed, because the general assembly
              set the minimum length of sentence for each felony class to
              reflect the relative seriousness of each criminal offense in the
              felony classifications; and
              (2) The sentence length within the range should be adjusted, as
              appropriate, by the presence or absence of mitigating and
              enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

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       The weight to be afforded an enhancement or mitigating factor is left to the trial
court’s discretion so long as its use complies with the purposes and principles of the 1989
Sentencing Act and the court’s findings are adequately supported by the record. Id. § (d)-(f);
State v. Carter, 254 S.W.3d 335, 342-43 (Tenn. 2008). “An appellate court is therefore
bound by a trial court’s decision as to the length of the sentence imposed so long as it is
imposed in a manner consistent with the purposes and principles set out in . . . the Sentencing
Act.” Carter, 254 S.W.3d at 346. Accordingly, on appeal we may only review whether the
enhancement and mitigating factors were supported by the record and their application was
not otherwise barred by statute. See id.

        In imposing a sentence, the trial court may only consider enhancement factors that are
“appropriate for the offense” and “not already . . . essential element[s] of the offense.” Tenn.
Code Ann. § 40-35-114. These limitations exclude enhancement factors “based on facts
which are used to prove the offense” or “[f]acts which establish the elements of the offense
charged.” Jones, 883 S.W.2d at 601. Our supreme court has stated that “[t]he purpose of the
limitations is to avoid enhancing the length of sentences based on factors the legislature took
into consideration when establishing the range of punishment for the offense.” State v.
Poole, 945 S.W.2d 93, 98 (Tenn. 1997); Jones, 883 S.W.2d at 601.

       In conducting its de novo review, the appellate court must consider (1) the evidence,
if any, received at the trial and sentencing hearing, (2) the presentence report, (3) the
principles of sentencing and arguments as to sentencing alternatives, (4) the nature and
characteristics of the criminal conduct, (5) any mitigating or statutory enhancement factors,
(6) any statement that the defendant made on his own behalf, (7) the defendant’s potential
for rehabilitation or treatment, and (8) any statistical information provided by the
Administrative Office of the Courts as to sentencing practices for similar offenses in
Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also Ashby, 823 S.W.2d at 168;
State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

        The Defendant admits that he has prior convictions for two counts of second degree
murder, Class A felonies;1 two counts of aggravated assault, Class C felonies; one count
of reckless homicide and two counts of attempted voluntary manslaughter, Class D felonies;
and one count of unlawful possession of a controlled substance, a Class E felony. See Tenn.
Code Ann. §§ 39-13-210(c); 39-13-102(e)(1); 39-13-215(b); 39-13-211(b) and 39-12-107(a);
and 39-17-417(g)(1). The Defendant also acknowledges that the trial court correctly
classified him as a Range III, persistent offender. See Tenn. Code Ann. § 40-35-107(a)(1).
The offense of possession of .5 grams or more of cocaine for sale or delivery is a Class B


        1
          In his brief, the Defendant incorrectly states that second degree murder is a Class B felony. The
State incorrectly classified second degree murder as a Class B felony at the sentencing hearing as well.

                                                   -7-
felony. As a Range III offender, the Defendant faced a sentencing range of twenty to thirty
years. Tenn. Code Ann. § 40-35-112(c)(2). The offense of possession of .5 ounce or more
of marijuana for sale or delivery is a Class E felony. As a Range III offender, the Defendant
faced a sentencing range of four to six years. Id. at (c)(5).

        At the sentencing hearing, the trial court imposed a sentence of twenty-five years for
the cocaine offense and five years for the marijuana offense based upon its finding of a single
enhancement factor: (1) that the Defendant has a history of criminal convictions or behavior
beyond that necessary to establish the range. See Tenn. Code Ann. § 40-35-114(1). The trial
court based this finding upon the Defendant’s criminal history of eight felony convictions
and several misdemeanor drug convictions. The trial court noted that the thirty-two-year-old
Defendant had been involved in criminal activities as early as age fifteen when he was
convicted of committing the first second degree murder. The Defendant makes some
allusion to Blakely v. Washington, 542 U.S. 296 (2004) in his brief when he argues that the
trial court determined the presence of the enhancement factor “without the assistance of a
jury.” However, Blakely is not applicable to this case because the Defendant was sentenced
for offenses committed after the 2005 revisions to the Sentencing Act. Furthermore,
Blakely’s requirement that a jury find facts in order to increase the length of a sentence
specifically excluded increases based upon a defendant’s criminal history.

        The Defendant also contends that the trial court placed too much weight on his
criminal history in determining the length of sentence. As noted by the State, an appellate
court is precluded from reweighing enhancement and mitigating factors correctly found by
the trial court. Carter, 254 S.W.3d at 346. Our review of the record supports the trial court’s
finding regarding the Defendant’s criminal history. Accordingly, we affirm the trial court’s
imposition of sentences.

        With regards to consecutive sentencing, the trial court made specific findings that the
Defendant was a professional criminal and an offender with an extensive history of criminal
activity. Tenn. Code Ann. § 40-35-115(b)(1) and (2). The trial court noted that the
Defendant was responsible for the deaths of three individuals. Based upon its review of the
presentence report, the trial court also found that the Defendant has never been gainfully
employed nor has he taken advantage of the opportunities for rehabilitation presented to him
while incarcerated. The Defendant argues that the trial court cannot consider his criminal
history to both increase the length of his sentence and order the sentences to be served
consecutively. However, this argument is without merit. Our courts have consistently held
that criminal history may serve as the basis for findings regarding the length and manner of
service. State v. Meeks, 867 S.W.2d 361, 377 (Tenn. Crim. App. 1993). We further
conclude that the record supports the trial court’s imposition of consecutive sentences in this
case. Accordingly, the judgments of the trial court are affirmed.

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                                     CONCLUSION

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.

                                                  _______________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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