         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   February 6, 2007 Session

                STATE OF TENNESSEE v. ANTHONY MCKINNIS

                Direct Appeal from the Circuit Court for Lauderdale County
                         No. 7888 Joseph H. Walker, III, Judge



                  No. W2006-00996-CCA-R3-CD - Filed September 6, 2007


The defendant, Anthony McKinnis, was convicted of the unlawful possession of a controlled
substance (marijuana) with the intent to deliver (Class E felony), violation of the open container law
(Class C misdemeanor), and the unlawful possession of a weapon (Class C misdemeanor), to wit:
a .38 caliber revolver. He was sentenced to two years of incarceration, with all but 120 days
suspended, for the felony conviction and was assessed a fine of $2500. Additionally, after
completion of his incarceration, the defendant was placed on Community Corrections for one year
and, if successful, the remainder would be served on probation. On appeal, he contends that the
evidence was insufficient to support his convictions, that the trial court erred in overruling his
objection to questioning regarding his employer’s prior drug convictions, and that the court erred in
sentencing. After review, we conclude that no error exists, and we affirm the judgments of the trial
court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and D. KELLY THOMAS, JR., J., joined.

Robert M. Brannon, Memphis, Tennessee, for the appellant, Anthony McKinnis.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
and Tracey A. Brewer, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                   Facts and Procedural History

         The defendant was convicted of three separate offenses arising from a single incident. At
trial, investigators for the Lauderdale County Drug Task Force testified that they were assigned to
locate and arrest an individual named in a drug indictment. Prior to leaving the police headquarters,
one of the investigators looked through a stack of unserved warrants and found one from a different
county for a person with the name of “Anthony McKinnis.” While searching for the individual
named in the drug indictment, they observed the defendant, Anthony McKinnis, drive past. They
followed the defendant and later located his empty vehicle parked at a housing complex. They
prepared to leave when one investigator observed the defendant walking from behind a nearby
apartment. The officers motioned for him to come to them, and he complied.

        The officers told the defendant that he might have an outstanding warrant and requested that
he wait with them while they checked. Because the defendant appeared nervous, two officers exited
the vehicle and stood beside him to ensure that he would not flee. During this time, one officer
looked into the defendant’s vehicle and observed an open bottle of beer on the floorboard. The
officer then walked to the apartment where the defendant had first been seen and found a small bag
of marijuana. The officer continued behind the apartment and found a white plastic bag containing
four bottles of beer, a .38 five-shot revolver, three bags of marijuana, a pack of cigarettes, and a
package of five cigars. The officer returned to the vehicle and asked an associate to handcuff the
defendant. Upon his arrest, the police discovered $3365.00 in the defendant’s pocket.

         The defendant was transported to jail, and the police learned that there was no arrest warrant
for the defendant. The outstanding warrant was for a different person by the same name. The
defendant made a statement to police that he was carrying the gun because “all the stuff going on the
streets are bad.” He said that he got the gun for protection because an individual by the name of
Tommy Taylor had recently shot at him seven times. He admitted that the marijuana belonged to
him and that he planned to use the cigars to smoke the marijuana. He claimed that the money was,
in part, payment for work he had performed and, in part, a down payment for car rims. He explained
to the police that his employer required customers to pay for half of their purchases in advance. He
claimed he was going to use the money to purchase the rims out of town on the following day.

        At trial, the defendant was asked if he was aware that his employer had a felony conviction
for delivering more than fifty pounds of marijuana. Defense counsel objected to the relevancy of the
question, but it was allowed by the trial court. The court also allowed the State to ask the defendant
if he was aware his employer was under surveillance.

       The jury convicted the defendant of all the indicted offenses. After a sentencing hearing, he
was denied full probation and Community Corrections. He was sentenced to two years of
incarceration, with all but 120 days suspended, and was fined $2500.00. After completion of the 120
days in jail, he was to serve the next year on Community Corrections and the remainder of his
sentence on supervised probation.

                                                Analysis

        First, the defendant contends that the trial court erred in failing to grant his motion to dismiss
the charges because of insufficient evidence. Specifically, he argues that the fact that he had 74.7
grams of marijuana contained in four separate bags, a handgun, and $3365.00 in cash was “clearly
insufficient for a jury to find that he possessed the marijuana with the intent to deliver it.” He said


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that no rational trier of fact could find that he possessed the drugs for anything other than his own
personal use.

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 199
Tenn. 298, 305, 286 S.W.2d 856, 859 (1956). To the contrary, this court is required to afford the
State the strongest legitimate view of the evidence contained in the record, as well as all reasonable
and legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578,
581 (Tenn. 2003).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated that “[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.” 493 S.W.2d 474, 476 (Tenn. 1973). Because a verdict
of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the
accused has the burden in this court of illustrating why the evidence is insufficient to support the
verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); Grace, 493
S.W.2d at 476.

        Here, the defendant argues that the evidence was only sufficient to support a finding of
simple possession. He acknowledged to police that the drugs, gun, and money were his at the time
he was arrested but claimed that he did not possess the drugs with the intent to deliver them to
anyone else. He tried to explain that he bought the drugs in a larger quantity because it was less
expensive. The State argues that this court has previously concluded that possession for delivery of
drugs may be inferred from the presence of large amounts of money in small denominations, loaded
guns, and the packaging of drugs in separate plastic bags, which are all present in this case. See
State v. Thaddaeus Medford, No. W2002-00226-CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 914,
*30 (Tenn. Crim. App. Oct 21, 2003, at Jackson), perm. app. denied (Tenn. Mar. 22, 2004). A jury
in this state, by statute, may infer 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 of otherwise dispensing.” T.C.A.
39-17-419.




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         This court has also previously concluded that 49 grams of marijuana packaged in separate
bags, less than the 74.7 grams packaged separately here, were a sufficient amount from which a jury
could infer possession with intent to deliver despite the fact that the defendant in the previous case
also maintained that the drugs were for her personal use. See State v. Dedonnas R. Thomas, W2000-
01465-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 82, at * 8 (Tenn. Crim. App. Jan. 30, 2002, at
Jackson). The quantity of marijuana possessed by the defendant, in conjunction with the method by
which it was packaged, in four separate plastic bags, supported a reasonable inference of the
defendant’s intention to deliver. The defendant’s rebuttal in the instant case, as it was in Thomas,
is “that inasmuch as consumer bulk purchases of items . . . are commonplace, it was not implausible
that he was merely stocking up on marijuana for his personal use. The jury heard the evidence and
considered the arguments and inferences offered by the parties. The jury rejected the defendant’s
theory and arguments, and that is its prerogative.” Id. Using the same rationale as in Thomas, we
conclude that the evidence was sufficient to support the conviction.

        Next, the defendant contends that the trial court erred in overruling his objection to
questioning regarding the prior drug conviction of his employer. During cross-examination, the State
challenged the defendant’s testimony regarding the money found in his possession. The State asked
the defendant whether he was aware that his employer had a felony drug conviction for delivering
fifty pounds of marijuana. Counsel for the defendant objected to the question based on relevance,
but the trial court allowed the question. The defendant contends that the question is inadmissible
based on Tennessee Rule of Evidence 402 which states that “evidence which is not relevant is not
admissible.” Specifically, he argues that whether or not the defendant’s employer has a drug
conviction for selling marijuana has no bearing on whether the defendant is guilty and that this
question prejudiced the outcome of his trial.

        The State asserts, and our review of the record reflects, that the defendant failed to include
this issue in the motion for new trial. Therefore, this issue is waived. Tenn. R. App. P. 3(e); see
State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995).

        Finally, the defendant argues that the trial court erred in sentencing the defendant to two years
as a Range I offender, with the requirement that he serve 120 days in jail followed by a year on
community corrections before being placed on supervised probation. The defendant first argues that
he should have been awarded full probation. A defendant is eligible for probation, subject to certain
exceptions, if the sentence imposed is eight years or less.1 T.C.A. § 40-35-303(a) (2003). A
defendant with a total effective sentence in excess of eight years is eligible for probation if the
individual sentences imposed for the convictions fall within the probation eligibility requirements.
State v. Langston, 708 S.W.2d 830, 832-33 (Tenn. 1986).




         1
             W e note that the defendant was arrested for his offenses on June 6, 2005. At the time he was arrested, the
statute made all individuals sentenced to eight years or less eligible for probation. Effective June 7, 2005, one day after
his arrest, the statute was amended to make anyone sentenced to ten years or less eligible for probation.

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        An especially mitigated or standard offender convicted of a Class C, D, or E felony is
presumed to be a favorable candidate for alternative sentencing in the absence of evidence to the
contrary. Tenn. Code Ann. § 40-35-102(6). A trial court must presume that a defendant sentenced
to eight years or less and for whom incarceration is not a priority is subject to alternative sentencing.
State v. Byrd, 861 S.W.2d 377, 379-80 (Tenn. Crim. App. 1993). It is further presumed that a
sentence other than incarceration would result in successful rehabilitation unless rebutted by
sufficient evidence in the record. Id. at 380. However, although a defendant may be presumed to
be a favorable candidate for alternative sentencing, the defendant has the burden of establishing
suitability for total probation. T.C.A. § 40-35-303(b); State v. Boggs, 932 S.W.2d 467, 477 (Tenn.
Crim. App. 1996). Even though probation must be automatically considered, “the defendant is not
automatically entitled to probation as a matter of law.” T.C.A. § 40-35-303(b), Sentencing
Commission Comments; State v. Hartley, 818 S.W.2d 370, 373 (Tenn. Crim. App. 1991). A
defendant seeking full probation bears the burden on appeal of showing the sentence imposed is
improper and that full probation will be in the best interest of both the defendant and the public.
State v. Baker, 966 S.W.2d 429, 434 (Tenn. Crim. App. 1997).

        In determining whether to grant or deny probation, a trial court should consider the
circumstances of the offense, the defendant’s criminal record, the defendant’s social history and
present condition, the need for deterrence, and the best interest of the defendant and the public. State
v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Boyd, 925 S.W.2d 237, 244 (Tenn. Crim. App.
1995). The defendant’s lack of credibility is also an appropriate consideration and reflects on a
defendant’s potential for rehabilitation. State v. Nunley, 22 S.W.3d 282, 289 (Tenn. Crim. App.
1999).

        Probation may be denied based solely upon the circumstances surrounding the offense. State
v. Bingham, 910 S.W.2d 448, 456 (Tenn. Crim. App. 1995); Hartley, 818 S.W.2d at 374. However,
the circumstances of the offense as committed must be especially violent, horrifying, shocking,
reprehensible, offensive, or otherwise of an excessive or exaggerated degree, and the nature of the
offense must outweigh all factors favoring probation. Hartley, 818 S.W.2d at 374-75.

         There is no mathematical equation to be utilized in determining sentencing alternatives. Not
only should the sentence fit the offense, but it should fit the offender as well. T.C.A. § 40-35-103(2);
State v. Batey, 35 S.W.3d 585, 588-89 (Tenn. Crim. App. 2000). Indeed, individualized punishment
is the essence of alternative sentencing. State v. Dowdy, 894 S.W.2d 301, 305 (Tenn. Crim. App.
1994). In summary, sentencing must be determined on a case-by-case basis, tailoring each sentence
to that particular defendant based upon the facts of that case and the circumstances of that defendant.
State v. Moss, 727 S.W.2d 229, 235 (Tenn. 1986).

        The defendant points to the fact that he owns a business, supports two children and is
expecting a third, has no prior felony record, has successfully completed prior sentences, and has
cooperated with police in justifying full probation. The State argues that the defendant’s criminal
history, though it consists only of misdemeanors, justifies denial of full probation.



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        The record reveals that less restrictive measures than jail, which have frequently been
afforded the defendant, appear to have had no effect because the defendant continued to ignore the
law. Further, his denial of responsibility for his crime and his insistence that he only possessed the
drugs for personal use, the gun for protection, and the large amount of cash for his employer weighs
against his prospects for rehabilitation and also serves as a basis for denial of full probation.

        The defendant asks us to consider him a proper candidate for a community correction
program having “special needs,” pursuant to Tennessee Code Annotated section 40-36-106(c). This
provision allows one who would usually be considered unfit for probation due to histories of chronic
alcohol, drug abuse, or mental health problems, but whose special needs are treatable and could be
served in the community rather than in a correctional institution, to be considered eligible for
punishment in the community and avoid jail. The defendant admitted to having a drug problem and
to continued drug use after this arrest. The defendant’s prior conduct strongly suggests his drug
problem is not treatable in an outpatient setting. The defendant has had many opportunities to
address his drug problem and has either not sought treatment or treatment has not helped. The
court’s leniency afforded the defendant in the past has failed to motivate the defendant to abstain
from criminal behavior.

        We conclude that the trial court properly imposed a period of incarceration. The defendant
has a long criminal record, has refused to accept responsibility for his actions, and has acknowledged
regular drug use. The court also properly enhanced the defendant’s sentence upward to two years.
His criminal record outweighed the mitigating factor that his crime neither caused or threatened
bodily injury. The sentence imposed by the trial court is affirmed.

                                             Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgments of the trial court.




                                                       ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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