                                                                                        10/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs March 21, 2018

        STATE OF TENNESSEE v. SEDRICK DARION MITCHELL

                Appeal from the Circuit Court for Bedford County
               No. 2016-CR-18457       Forest A. Durard, Jr., Judge
                     ___________________________________

                           No. M2017-00825-CCA-R3-CD
                       ___________________________________

Defendant, Sedrick Darion Mitchell, was convicted of the sale and delivery of 0.5 grams
or more of cocaine within 1,000 feet of a school and simple possession of cocaine.
Defendant was sentenced as a career offender to an effective 60-year sentence of
imprisonment. On appeal, Defendant claims that the evidence is insufficient to support
his convictions; that his simple possession conviction should be reversed because he was
questioned without an attorney present; and he challenges the constitutionality of
Tennessee Code Annotated section 39-17-420(h), (i), and (j). Following our review, we
affirm Defendant’s convictions.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Matthew D. Wilson, Spring Hill, Tennessee, for the appellant, Sedrick Mitchell.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Robert James Carter, District Attorney General; and Michael D.
Randles, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Procedural history

       Defendant was originally charged in a 15-count indictment with various charges of
the sale or delivery of cocaine, possession of cocaine for sale or delivery, possession of
marijuana for sale or delivery, and unlawful possession of drug paraphernalia. The case
was set for trial; however, the relationship between Defendant and his trial counsel
degraded to the point that it was necessary to postpone the trial and substitute counsel.
The State sought a superseding indictment, alleging that the activity occurred within a
school zone. The first eleven counts charged offenses that occurred in December, 2014,
and January, 2015. The last four counts of the indictment involved an incident alleged to
have occurred on February 6, 2015. These are the counts which are the subject of this
appeal. The record shows that at least three different times, Defendant’s appointed
attorney was allowed to withdraw and substitute counsel was appointed. Two attorneys
filed motions to suppress evidence seized in relation to the offenses that were the basis of
counts 1-11, which the trial court denied. No motion to suppress was filed concerning
the event that was the basis for counts 12-15. In an order dated December 8, 2016, the
trial court severed counts 12-15 from counts 1-11 and reassigned counts 12-15 a new case
number, which as noted above, is the subject of this appeal.

Facts

        This appeal stems from a controlled drug purchase completed by an informant
working for the 17th Judicial District Drug Task Force. The following evidence was
adduced at trial. Drug Task Force Agent Jose Ramirez, of the Marshall County Sheriff’s
Department, testified that he and other agents met with the confidential informant (“C.I.”)
on February 6, 2015, to arrange a controlled purchase of cocaine from Defendant. The
C.I. told Defendant that he had a “bill,” meaning that he wanted to purchase $100 worth
of cocaine. Defendant agreed to meet the C.I. at a local Goodwill store.

        Agent Ramirez searched the C.I. to ensure that he did not have any drugs,
contraband, or other prohibited items in his possession. Agent Ramirez gave the C.I. five
$20 bills after he recorded the bills’ serial numbers. Agent Ramirez also gave the C.I. a
digital recorder. The C.I. rode his bicycle to the Goodwill, and Agent Ramirez followed
in his vehicle. Other agents set up around the Goodwill to observe the controlled buy.
After 45 minutes to an hour of waiting for Defendant to show up, the meeting place was
changed to the America’s Best Value Inn, which was located behind the Goodwill.
Agent Ramirez followed the C.I. to that location, and the other agents relocated to
conduct surveillance. Agent Ramirez testified that he saw the C.I. and Defendant “go
into a breezeway” together, where the exchange took place. Agent Ramirez testified that
he did not see Defendant’s face because it was covered by a “zipped-up hoodie.” After
the exchange, the C.I. met Agent Ramirez at a pawn shop one block away from the motel.
The C.I. gave Agent Ramirez a plastic bag containing crack cocaine and the digital
recorder.

      After his debriefing with the C.I., Agent Ramirez returned to the motel where the
exchange took place. Other agents had placed Defendant in custody in the lobby of the
motel. Defendant told agents that there was “some cocaine back in [Defendant’s motel]

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room folded in a small piece of paper.” Agent Ramirez relayed that information to other
agents who found the cocaine inside Defendant’s motel room.

        The State introduced satellite photos, using the Tennessee Bureau of Investigation
(“TBI”) mapping software, showing that the location of the controlled buy was within
1,000 feet of the Thomas Magnet School. A special agent with the TBI’s crime lab
testified that the substance recovered from the controlled buy was determined to be 1.05
grams of cocaine. The substance recovered during the search of Defendant’s motel room
was determined to be 0.45 grams of cocaine.

        The C.I. acknowledged that he was “a drug addict,” and he testified that he
contacted the drug task force about becoming a confidential informant. The C.I. testified
that on February 6, 2015, he called Defendant to arrange a meeting for the purchase of
cocaine. He testified that the exchange took place in the breezeway of the motel, and he
identified Defendant as the person to whom he gave the $100 provided by Agent Ramirez
in exchange for a bag of crack cocaine. On cross-examination, the C.I. acknowledged
that he was convicted in Carroll County in 2006 of two counts of attempted possession of
less than 0.5 grams of cocaine for resale. He also acknowledged that he was on parole at
the time of the controlled buy in this case. The C.I. also acknowledged that he was
compensated $100 by the drug task force for his participation in the controlled buy.

       Drug Task Force Agent Shane George assisted in surveillance of the controlled
buy. After the controlled buy, Agent George observed Defendant “coming and going”
from one of the rooms in the motel. Agent George watched Defendant leave the motel
room and walk to the lobby of the motel. Agent George placed Defendant in custody in
the lobby of the motel. Agent George testified that Defendant consented to a search of
the motel room he had been staying in. Agent George and Agent Timothy Joe Miller
searched Defendant’s motel room and found cocaine inside a folded piece of paper. They
used a key found on Defendant’s person to enter the motel room. Agent Miller testified
that the same five $20 bills that were used in the controlled buy were found on
Defendant’s person at the time of his arrest.

Analysis

Sufficiency of the evidence

       Defendant contends that the evidence at trial was insufficient to sustain his
convictions. Defendant asserts that the C.I.’s “character was assassinated” by evidence
that he was convicted of a previous felony. The State responds that the evidence was
sufficient to sustain Defendant’s conviction. We agree with the State.

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        When considering the sufficiency of the evidence on appeal, the State is entitled to
the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing
State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant challenges the
sufficiency of the evidence, the standard of review applied by this court is “whether, after
reviewing 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). Similarly, Rule 13(e) of the Tennessee
Rules of Appellate Procedure states that “[f]indings of guilt in criminal actions whether
by trial court or jury shall be set aside if the evidence is insufficient to support the finding
by the trier of fact beyond a reasonable doubt.” “Because a verdict of guilty removes the
presumption of innocence and raises a presumption of guilty, the criminal defendant
bears the burden on appeal of showing that the evidence was legally insufficient to
sustain a guilty verdict.” State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing
State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of
review for sufficiency of the evidence “‘is the same whether the conviction is based upon
direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence and the inferences
to be drawn from this evidence, and the extent to which the circumstances are consistent
with guilt and inconsistent with innocence are questions primarily for the jury. Dorantes,
331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When
considering the sufficiency of the evidence, this court shall not substitute its inferences
for those drawn by the trier of fact. Id.

        Defendant was convicted of the sale or delivery of 0.5 grams or more of cocaine
within 1,000 feet of a drug-free school zone. The State was required to prove beyond a
reasonable doubt that Defendant knowingly sold or delivered cocaine. See T.C.A. § 39-
17-417(a)(2)-(3). A violation of subsection (a) with respect to 0.5 grams or more of
cocaine is a Class B felony. Id. §§ 39-17-417(c)(1). In addition, the Drug-Free Zone Act
states that a violation of T.C.A. § 39-17-417 “that occurs on the grounds or facilities of
any school or within one thousand feet (1,000) of the real property that comprises a
public or private elementary school, middle school, secondary school, preschool, child
care agency, or public library, recreational center or park shall be punished one (1)
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classification higher than is provided in § 39-17-417(b)-(i) for such violation.” Id. § 39-
17-432(b)(1).

       Viewed in the light most favorable to the State, the evidence showed that the C.I.
gave Defendant $100 in exchange for 1.05 grams of cocaine contained in a plastic bag.
The exchange took place at the America’s Best Value Inn motel, which is located within
1,000 feet of the Thomas Magnet School. This evidence is sufficient to establish that
Defendant was guilty of the sale or delivery of 0.5 grams or more of cocaine in a drug-
free school zone.

       The evidence is also sufficient to support Defendant’s conviction for simple
possession of cocaine. To establish the elements of simple possession, the State must
have shown that Defendant knowingly possessed cocaine. T.C.A. § 39-17-418.
Possession requires some showing that the defendant was in a position to exercise control
over the substance. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). The possession
may be actual or constructive. Id. Agent George testified that he observed Defendant
coming and going from the motel room that he searched after Defendant’s arrest. Agent
George testified that Defendant consented to a search of the motel room, and a key to the
room was found on Defendant’s person. Defendant also admitted to agents that there was
cocaine in the motel room and described the way in which it was packaged. Agents
found 0.45 grams of cocaine packaged the way Defendant described inside the motel
room.

       Defendant argues that because the C.I. was impeached at trial with evidence of
prior felony convictions and because he was compensated for his participation in the
controlled buy, “the jury should have disregarded his testimony.” Defendant suggests
that he “could very well have of [sic] picked these dollars off the ground, while [the C.I.]
could very well have obtained the drugs from some unknown person.” This court has
repeatedly asserted that determining the credibility of witnesses is “entrusted exclusively
to the jury as the trier [ ] of fact.” State v. Millsaps, 30 S.W.3d 364, 368 (Tenn. Crim.
App. 2000). In the instant case, the jury clearly resolved the issue of credibility in the
State’s favor. We may not now reconsider the jury’s credibility assessment. See State v.
Carruthers, 35 S.W.3d 516, 558 (Tenn. 2000). We conclude that the evidence adduced at
trial was sufficient to sustain Defendant’s convictions. Defendant is not entitled to relief
on this issue.

Right to an attorney during custodial interrogation

       Defendant also contends that his conviction for simple possession should be set
aside because he was questioned without an attorney present. See Edwards v. Arizona,
451 U.S. 477, 481-82 (1981); Miranda v. Arizona, 384 U.S. 436, 474 (1966)). The State
                                           -5-
responds that Defendant has waived consideration of this issue because he raises it for the
first time in this appeal.

        The record reflects that Defendant failed to raise this issue in his motion for new
trial. Rule 3(e) of the Tennessee Rules of Appellate Procedure provides, in part:

        [I]n all cases tried by a jury, no issue presented for review shall be
        predicated upon error in the admission or exclusion of evidence, jury
        instructions granted or refused, misconduct of jurors, parties or counsel,
        or other action committed or occurring during the trial of the case, or
        other ground upon which a new trial is sought, unless the same was
        specifically stated in a motion for a new trial; otherwise such issues will
        be treated as waived.

Tenn. R. App. P. 3(e).

       Among the issues raised in Defendant’s motion for new trial is the contention that
“Defendant’s suppression motion should have been granted.” However, a motion to
suppress was never filed regarding the charges in this case, which the trial court severed
from the other charges in the original indictment. The trial court noted at the hearing on
Defendant’s motion for new trial,

        It talks about that I should have granted the Motion to Suppress. But by
        way of history in this case, there were, I believe, a dozen [sic] different
        counts of that indictment and a Motion to Sever was filed and I granted
        that Motion to Sever. And I made the State try separately, I believe, it
        was the last three [sic] counts of which that was what we’re here today
        on which resulted in a conviction because of the factual distinctions
        between what happened in the first nine [sic] counts versus the
        remaining three [sic] counts because of the different location and so
        forth. And what the defendant refers to here are, is a situation that
        occurred at his apartment and not at America’s Best Value Inn. So that’s
        not even a topic here.

        At the hearing on Defendant’s motion for new trial, counsel offered no argument
in support of Defendant’s claim on appeal that he was questioned without his attorney
present. There was no mention whatsoever at the hearing of a custodial interrogation. At
trial, Agent Ramirez testified that after Defendant was taken into custody, he told officers
that there was a small folded piece of paper containing cocaine in his motel room. Agent
George testified that Defendant consented to a search of his motel room. Defense
counsel did not make a substantive objection to this testimony, nor did defense counsel
                                           -6-
ask either witness on cross-examination whether Defendant requested an attorney. In his
brief, Defendant concedes that “there was no evidence presented at trial that [Defendant]
had asked for an attorney.”

       Because Defendant never brought this issue to the attention of the trial court, this
issue is waived. See Tenn. R. App. P. 36(a). Defendant is not entitled to relief on this
issue.

State v. Decosimo

       Defendant filed a supplemental brief in which he challenges the constitutionality
of Tennessee Code Annotated section 39-17-420(h)-(j), which provides that a drug
testing fee of $250 shall be assessed and collected for the benefit of the TBI drug testing
fund upon any conviction for a violation of any part of the Tennessee Drug Control Act.
Defendant relies upon the decision in State v. Rosemary L. Decosimo, No. E2017-00696-
CCA-R3-CD, 2018 WL 733218 (Tenn. Crim. App. Feb. 6, 2018), perm. app. granted
(Tenn. Mar. 21, 2018), in which a panel of this court held that the similarly worded
Tennessee Code Annotated section 55-10-413(f), which gives the TBI $250 for each DUI
conviction that is obtained using a blood or breath test, is unconstitutional.

       This claim is without merit. The Tennessee Supreme Court has reversed the
judgment of the Court of Criminal Appeals in Decosimo. State v. Decosimo, ___ S.W.3d
___, 2018 WL 4022338 (Tenn. Aug. 23, 2018). Defendant is not entitled to relief on this
issue.

                                     CONCLUSION

        Based on the aforementioned authorities and reasoning, we affirm the judgments
of the trial court.

                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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