        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 4, 2016

      STATE OF TENNESSEE v. JAMICHAEL POLK ARMSTRONG

                  Appeal from the Circuit Court for Maury County
                      No. 21156 Stella L. Hargrove, Judge
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              No. M2015-02083-CCA-R3-CD – Filed December 5, 2016
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The Defendant, Jamichael Polk Armstrong, was convicted by a Maury County jury of
facilitation of sale of cocaine over 0.5 grams in a drug-free school zone and sentenced to
ten years in the Tennessee Department of Correction, with the first eight years to be
served at one hundred percent release eligibility pursuant to the Drug-Free School Zone
Act (hereinafter “the Act”). On appeal, the Defendant claims that the evidence is
insufficient to support his conviction and that the trial court erred by applying the Act to
his facilitation conviction. Following our review, we affirm the Defendant‟s conviction
but remand for resentencing.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and TIMOTHY L. EASTER, JJ., joined.

L. Samuel Patterson, Columbia, Tennessee, for the Defendant-Appellant, Jamichael Polk
Armstrong.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; and Brent Cooper, District Attorney General, for the Appellee, State of
Tennessee.

                                        OPINION

       This appeal stems from a controlled drug purchase completed by an informant
working for the Columbia Police Department. The Defendant was indicted by a grand
jury for the sale of cocaine over 0.5 grams within 1,000 feet of a drug-free school zone.
A jury trial began on October 10, 2013, at which time the following evidence was
adduced.
       Trial. A confidential informant (CI) working for the Columbia Police Department
(CPD) testified that he had purchased cocaine from a man named Michael or “Al”
Harding in the past and that he agreed to help the CPD set up a controlled purchase at
Harding‟s house on June 17, 2011. The CI said that Harding did not always have cocaine
to sell but that “there was always somebody around that had it.” The CI could not
remember whether he spoke with Harding on the day of the purchase, but he testified that
he “usually did” and that he knew he would be purchasing the drugs from an unknown
“black male.”

       The CI met with officers before the purchase, and he was searched and supplied
with a listening device and hidden camera. He then drove to Harding‟s house in a police-
supplied vehicle. There were at least three or four other adults present at the house when
the CI arrived. The CI told Harding that he wanted $100 worth of cocaine, and Harding
“made the phone call.” After the call, the CI “saw the [Defendant] walking up.” The CI
handed the money to the Defendant, and the Defendant handed the CI the drugs in a
cigarette cellophane wrapper. The CI identified a still photograph from the hidden
camera, which he said showed the drugs in the Defendant‟s hand. The CI testified that
Harding was sitting next to him during the purchase but that Harding did not participate
in the purchase between the CI and the Defendant. The CI identified several other still
photographs from the hidden camera, including photographs of the Defendant‟s face and
a photograph of the drugs in the CI‟s hand. The CI then left Harding‟s house and drove
back to meet the officers. The CI was paid around $120 or $125 for the purchase.

       On cross-examination, the CI admitted that he had been charged with possession
of crack cocaine a few months before the undercover purchase. He confirmed that his
criminal record included convictions for the sale of cocaine, burglary, theft, vandalism,
forgery, and probation violation. He had been using cocaine for probably fifteen or
twenty years but had been sober since June 2011. The CI also testified that he had mental
health issues and struggled with major depression and manic depressive bipolar disorders.
He had been paid for participating in between ten and fifteen paid undercover drug
purchases with the CPD. He also admitted to using the money to occasionally buy drugs
for himself in the past. The CI acknowledged that the video did not show him placing the
money into the Defendant‟s hand.

       Officer Jason Dark testified that the CI was used to conduct the undercover drug
purchase at Harding‟s house on June 17, 2011. Officer Dark followed the CI to the area
surrounding Harding‟s house before the purchase, and after the purchase was completed,
he followed the CI back to the police department where the officers recovered the drugs
the CI had purchased. Officer Dark testified that, before a purchase, officers would
search an informant, photocopy any currency they planned to use for the purchase, and
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provide an electronic listening device and a camera for the informant. Officer Dark
confirmed that if an informant participated in an undercover purchase to help with his
own charges he would not also be paid. Officer Dark also testified that he used a
computer program developed by the Planning Department of the City of Columbia to
determine the distance between the undercover purchase location and the nearby College
Hill School,1 which was 747 feet.

      On cross-examination, Officer Dark confirmed that the CI had worked with the
CPD in the past as a confidential informant, including a case in May 2011, a few months
before the undercover purchase, in which Harding sold to the CI. Officer Dark also
confirmed that he was not able to physically observe the transaction between the CI and
the Defendant. Officer Dark testified that when he saw the hidden camera video, he
immediately identified the Defendant as the man on the video.

       Special Agent Glen J. Glenn, a forensic scientist for the Tennessee Bureau of
Investigation, testified that he examined the drug evidence in this case. Agent Glenn
determined that the substance recovered from the purchase was cocaine base weighing
0.9 grams.

       The State rested, and the Defendant did not offer any proof. The Defendant and
the State stipulated to the chain of custody regarding the cocaine evidence, and the parties
additionally stipulated that the College Hill School is a school within the meaning of
Tennessee Code Annotated section 39-17-432.

        Based on the above proof, the jury found the Defendant guilty of the lesser-
included offense of facilitation of sale of cocaine over 0.5 grams in a school zone, and the
trial court affirmed the verdict as the thirteenth juror and set the case for a sentencing
hearing. At the February 11, 2014 sentencing hearing, the trial court sentenced the
Defendant to ten years as a Range I offender to be served in the Tennessee Department of
Correction. The court found that the Defendant was required to serve a mandatory
minimum of eight years pursuant to the enhanced penalties section of the Act. The
Defendant filed a motion for new trial on February 26, 2014, which was heard and denied
on September 14, 2015. This timely appeal followed.

                                             ANALYSIS

      The Defendant contends that the evidence was insufficient to sustain his
conviction for facilitation and that the trial court erred in applying the enhanced penalties

        1
         The parties and witnesses also occasionally referred to the College Hill School as the Horace O.
Potter School. To avoid confusion, we refer to this school only as the College Hill School.
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of the Act to his conviction. The State responds that the elements of the Defendant‟s
conviction were proven beyond a reasonable doubt; however, the State concedes that the
Defendant was not subject to the enhanced sentencing provisions of the Act.

       I. Sufficiency of the Evidence. First, the Defendant challenges the sufficiency of
the convicting evidence. 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 State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). 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.

      The Defendant was convicted of facilitation of sale of cocaine within 1,000 feet of
a school. Under Tennessee Code Annotated section 39-11-403, “[a] person is criminally
responsible for the facilitation of a felony, if, knowing that another intends to commit a
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specific felony, but without the intent required for criminal responsibility under [section]
39-11-402(2), the person knowingly furnishes substantial assistance in the commission of
the felony.” A defendant who has been “charged as a party may be found guilty of
facilitation as a lesser included offense if the defendant‟s degree of complicity is
insufficient to warrant conviction as a party.” Id. § 39-11-403, Sentencing Comm‟n
Cmts.

        Taken in the light most favorable to the State, the proof showed that the CI arrived
at Harding‟s house to purchase crack cocaine from an unknown “black male.” The CI
asked Harding to obtain $100 worth of cocaine, and after Harding made a phone call, the
Defendant arrived at the house and gave the CI the drugs in exchange for the money.
Officer Dark testified that he followed usual procedure to search the informant before and
after the purchase and that he followed the CI to and from the purchase location. Officer
Dark obtained 0.9 grams of crack cocaine from the CI after the purchase. A video
recording and still images from the purchase were admitted into evidence and shown to
the jury, and both Officer Dark and the CI identified the Defendant on the video and at
trial.

        In challenging the sufficiency of the convicting evidence, the Defendant is
essentially attacking the credibility of the informant and the weight of the video evidence
presented at trial. The Defendant argues that his conviction “is based solely on the
identification by a confidential informant who had never met the Defendant” and that
“[t]he video evidence in this case does not prove beyond a reasonable doubt that the
Defendant is the one who sold the cocaine to the confidential informant.” However, as
we have previously noted, the jury determines the weight and credibility to be given to
the testimony of witnesses and reconciles all conflicts in the evidence. Bolin v. State,
405 S.W.2d 768, 771 (Tenn. 1966). Furthermore, the record shows that the Defendant
was not only identified by the informant, but he was also identified by Officer Dark on
the video and at trial.

        The Defendant also argues that “[t]he jury obviously discredited the testimony of
[the informant]” because the Defendant was convicted of the lesser-included offense of
facilitation. However, the jury‟s verdict for a lesser-included offense, standing alone,
does not indicate that the jury completely discredited the informant‟s testimony. As the
State correctly points out, although the informant testified that he purchased the drugs
directly from the Defendant and not from Harding, it is possible the jury considered
Harding the principal actor of the felony and the Defendant the facilitator. Regardless, no
argument is raised regarding the jury instructions, and the jury, in its discretion, found
that the Defendant furnished substantial assistance to another person in the commission
of the felony. Based on the evidence presented, a reasonable juror could infer from the

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video evidence and the witness testimony that the Defendant knowingly facilitated the
sale of cocaine. Accordingly, the Defendant is not entitled to relief.

       II. Sentencing Pursuant to the Act. Next, the Defendant challenges the trial
court‟s decision to sentence him pursuant to the Act. In this case, the Defendant was
convicted of facilitation of the sale of more than 0.5 grams of cocaine within 1,000 feet of
a school zone. T.C.A. §§ 39-17-417(a)(3), (c)(1); Id. § 39-11-403(b). The trial court
enhanced the Defendant‟s conviction to a Class B felony pursuant to the Act, which
provides that “[a] violation of [section] 39-17-417 . . . that occurs . . . within one
thousand feet . . . of the real property that comprises a public or private elementary
school, middle school, [or] secondary school . . . shall be punished one (1) classification
higher than is provided in [section] 39-17-417(b)-(i) for such violation.” See T.C.A. §
39-17-432(b)(1). As a Range I offender, the Defendant was subject to a sentencing range
of eight to twelve years for his conviction of a Class B felony. See T.C.A. § 40-35-
112(a)(2). The trial court sentenced the Defendant to a mid-range sentence of ten years
but found that he was required to serve the first eight years of his sentence at one-hundred
percent release eligibility under the Act. See id. § 39-17-432(c). The Act provides that a
defendant who violates or conspires to violate Tennessee Code Annotated section 39-17-
417 within 1,000 feet of a school “shall be required to serve at least the minimum
sentence for the defendant‟s appropriate range of sentence.” Id.

        While the instant appeal was pending, the Tennessee Supreme Court released its
opinion in State v. Stanley Bernard Gibson, which held that the Act does not apply to
facilitation convictions, overruling prior cases from this Court which held that defendants
convicted of facilitation or attempt are to be sentenced pursuant to the Act. State v.
Stanley Bernard Gibson, No. M2014-00598-SC-R11-CD, 2016 WL 6778906 (Tenn. Nov.
16, 2016). Accordingly, pursuant to Gibson, the Act no longer applies to the Defendant‟s
facilitation conviction and, therefore, the trial court erred in classifying the Defendant‟s
conviction as a Class B felony and requiring one-hundred percent service of the sentence.
Id. at *5-6. Rather, the Defendant‟s conviction should have been sentenced as a Class C
felony, subjecting him to a sentencing range of three to six years as a Range I offender.
Id.; see T.C.A. § 40-35-112(a)(3). Additionally, the Defendant‟s sentence should be
modified to reflect thirty percent service of the sentence, rather than one-hundred percent.
Stanley Bernard Gibson, 2016 WL 6778906 at *5-6; see T.C.A. § 40-35-501(c).

                                     CONCLUSION

       Upon review, we affirm the Defendant‟s conviction and remand for resentencing
consistent with this opinion.



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 ____________________________________
CAMILLE R. McMULLEN, JUDGE




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