        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 11, 2015

                STATE OF TENNESSEE v. WILLIAM C. BOLES

                   Appeal from the Criminal Court for Clay County
                     No. 2012-CR-91     David Patterson, Judge


                 No. M2014-01023-CCA-R3-CD – Filed June 11, 2015


The defendant, William C. Boles, appeals his Clay County Criminal Court jury
convictions of two counts of the delivery of oxycodone, a Schedule II drug, in a drug-free
school zone and one count of possession with the intent to sell oxycodone in a drug-free
school zone, for which he received a total effective sentence of 60 years‟ incarceration,
claiming that the trial court erred by admitting certain evidence, that the evidence was
insufficient to support his convictions, and that the trial court erred by imposing partially
consecutive sentences. Because we conclude that no error attends the convictions or
sentences, the convictions and sentences are affirmed. Because we detect error in the
judgment forms, however, the case must be remanded to the trial court for the entry of
corrected judgment forms reflecting the mandatory minimum period of incarceration as
required by Tennessee Code Annotated section 39-17-432.

   Tenn. R. App. P. 3; Judgments of the Criminal Court Affirmed and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROGER A. PAGE, JJ., joined.

Michael R. Giaimo, Cookeville, Tennessee, for the appellant, William C. Boles.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General (Senior Counsel); Bryant C. Dunaway, District Attorney General; and Mark
Gore, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

               A Clay County Criminal Court jury convicted the defendant of two counts
of the delivery of oxycodone within a drug-free school zone and one count of possession
with intent to sell oxycodone within a drug-free school zone based upon evidence that the
defendant sold and possessed oxycodone at his residence, which was located less than
1,000 feet from the Clay County Alternative School.

               On June 23, 2012, Clay County Sheriff‟s Office Detective Randall Clayton
met with a confidential informant, Travis Webb, who had reported to Detective Clayton
that he could purchase oxycodone from the defendant. Detective Clayton searched Mr.
Webb‟s person and his vehicle, and then he outfitted Mr. Webb with audio recording
equipment and placed hidden video recording equipment inside Mr. Webb‟s vehicle.
Detective Clayton provided Mr. Webb with cash to purchase the drugs. Mr. Webb placed
a monitored and recorded telephone call to the defendant, who agreed to sell Mr. Webb
oxycodone. Detective Clayton and other officers followed Mr. Webb as he drove toward
the defendant‟s residence, but they stopped in a parking lot near the defendant‟s residence
to set up a location for monitoring the impending transaction.

              When Mr. Webb arrived at the defendant‟s residence, the defendant got into
Mr. Webb‟s vehicle and gave him one 40-milligram oxycodone tablet in exchange for
$40. The entire transaction was video recorded, and the video recording as well as still
photographs taken from the recording were exhibited at trial. Both the recording and the
photographs clearly show the defendant‟s face. After leaving the defendant‟s residence,
Mr. Webb met Detective Clayton at a secure location and gave him the tablet he had
purchased from the defendant. Testing performed by the Tennessee Bureau of
Investigation (“TBI”) established that the tablet was oxycodone.

              On July 19, 2012, Detective Clayton arranged a second controlled buy
between the defendant and Mr. Webb. Detective Clayton again searched Mr. Webb and
Mr. Webb‟s vehicle and outfitted Mr. Webb with audio recording equipment. Mr. Webb
was provided with a video recording device hidden inside what appeared to be the
keyless entry remote for Mr. Webb‟s vehicle. Detective Clayton provided Mr. Webb
with cash. Mr. Webb made another monitored and recorded telephone call to the
defendant, and the defendant again agreed to sell Mr. Webb oxycodone. Mr. Webb
traveled to the defendant‟s residence, followed by Detective Clayton and other officers,
who again set up a monitoring station in a parking lot near the defendant‟s residence.

               When he arrived at the defendant‟s residence, Mr. Webb went inside, where
the defendant gave him a single 40-milligram oxycodone tablet in exchange for $40.
This transaction was also caught on video, and the video recording and several still
photographs taken from it were entered into evidence. Again, the defendant‟s face was
clearly visible in the recording and photographs. Mr. Webb left the defendant‟s residence
and traveled to a secure location, where he gave Detective Clayton the tablet he had
purchased from the defendant. TBI testing confirmed that the tablet was oxycodone.

                                            -2-
              Detective Clayton and other members of the Clay County Sheriff‟s Office
executed a search warrant at the defendant‟s residence on July 20, 2012. Inside the
defendant‟s bedroom, the officers found a blue bottle hidden inside a trash can; the bottle
contained four 40-milligram oxycodone tablets that were similar to those purchased from
the defendant by Mr. Webb and four-and-a-half tablets of another form of oxycodone.
The bottle also contained roxycodone tablets. In the defendant‟s mother‟s bedroom,
officers found a medication bottle that contained 19 30-milligram oxycodone tablets.
The label affixed to the bottle of oxycodone found in the defendant‟s mother‟s room
indicated that it belonged to the defendant and that the prescription for 136 oxycodone
tablets had been filled on July 12, 2012.

              TBI testing confirmed, and the parties stipulated, that the eight and one-half
pills discovered in the blue bottle found inside the defendant‟s room and the 19 pills
found inside the bottle that was located in the defendant‟s mother‟s room were
oxycodone.

               Upon questioning by officers, the defendant acknowledged that the
oxycodone discovered inside the residence belonged to him and that he had been selling
the pills “three times a day for the past month” as a means to earn money to make needed
plumbing repairs at his residence.

              Detective Clayton initially used TBI software to determine that the
defendant‟s residence was within 1,000 feet of the Clay County Alternative School, and
then he used a measuring wheel to confirm that the residence was approximately 650 feet
from the school.

               Based upon this proof, the jury convicted the defendant as charged, and,
following a sentencing hearing, the trial court sentenced the defendant as a career
offender to 30 years‟ incarceration for each of his three convictions. The court ordered
that the convictions for delivery of oxycodone be served concurrently to one another and
that the sentence for the conviction for possession with intent to sell oxycodone be served
consecutively to the convictions for delivery of oxycodone, for a total effective sentence
of 60 years.

               The defendant filed a timely but unsuccesful motion for new trial followed
by a timely notice of appeal to this court. In this appeal, he challenges the admission of
the labels affixed to the medication bottles found inside his residence, the sufficiency of
the convicting evidence, and the imposition of consecutive sentences. We consider each
claim in turn.



                                            -3-
                                    I. Medication Labels

               The defendant contends that the trial court erred by admitting into evidence
the labels affixed to the medication bottles discovered during execution of the search
warrant at his residence because those labels constituted inadmissible hearsay. The State
asserts that the defendant waived our consideration of this issue by failing to raise it in his
motion for new trial and that, in any event, admission of the labels, even if it was
erroneous, was harmless.

               At trial, the defendant objected to the admission of the labels affixed to the
medication bottles on grounds that they contained inadmissible hearsay. The State
argued that the labels were “an adopted admission.” The trial court overruled the
objection, concluding that the labels did “not cause the court to believe that the evidence
should be suppressed” and that the labels were “consistent with the testimony that the
officer has given today regarding what is being said by the defendant.”

               As the State correctly points out, the defendant failed to present this issue in
his motion for new trial, and, in consequence, it is waived. Tenn. R. App. P. 3(e) ( “[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, . . . 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.”). Moreover, because the admission of this evidence,
even if it was erroneous, can be classified as harmless in light of the overwhelming proof
of the defendant‟s guilt, including his admission, consideration of the error is not
“„necessary to do substantial justice.‟” State v. Smith, 24 S.W.3d 274, 282-83 (Tenn.
2000) (holding that before an error may be recognized as plain, a reviewing court must
find all five factors enumerated in State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn.
Crim. App. 1994), and that “complete consideration of all the factors is not necessary
when it is clear from the record that at least one of the factors cannot be established”).

                                       II. Sufficiency

             The defendant next asserts that the evidence was insufficient to support his
convictions. Other than a bare assertion of general insufficiency, the defendant does not
express how the evidence adduced at trial failed to establish his guilt of the charged
offenses.

              We review the defendant‟s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S.
                                              -4-
307, 324 (1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This
standard applies to findings of guilt based upon direct evidence, circumstantial evidence,
or a combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011).

               When examining the sufficiency of the evidence, this court should neither
re-weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id.
Questions concerning the credibility of the witnesses, the weight and value of the
evidence, as well as all factual issues raised by the evidence are resolved by the trier of
fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must
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.
Id.

              “It is an offense for a defendant to knowingly . . . (2) [d]eliver a controlled
substance . . . or (4) [p]ossess a controlled substance with intent to sell the controlled
substance.” T.C.A. § 39-17-417(a). A violation of this section with respect to
oxycodone, a Schedule II controlled substance, see id. § 39-17-408(b)(1)(M), is a Class C
felony unless it “occurs . . . within one thousand feet (1,000′) of the real property that
comprises a public . . . elementary school, middle school, secondary school,” when it
“shall be punished one (1) classification higher than is provided in § 39-17-417(b)-(i) for
such violation,” see id. § 39-17-432(b).

              Here, the evidence established that the defendant sold oxycodone to Mr.
Webb during controlled buys on June 23 and July 19, 2012. Both purchases were audio
and video recorded, and the jury viewed not only the video recordings of both
transactions but also still photographs of the defendant‟s face taken from those
recordings. During the July 20, 2012 search warrant execution, officers discovered two
medication bottles that contained oxycodone tablets. The defendant admitted to officers
that he had been selling the pills “three times a day for the past month.” Also, proof
established that these offenses occurred within 1,000 feet of the Clay County Alternative
School. This evidence was more than sufficient to support each of the defendant‟s
convictions.

                                      III. Sentencing

              Finally, the defendant asserts that the trial court should not have ordered
that he serve two of the 30-year sentences imposed for each of his convictions
consecutively. He argues only that “the government failed to meet its burden to satisfy
the statute.” The State contends that the imposition of partially consecutive sentences
was appropriate given the defendant‟s lengthy and extensive criminal record.
                                             -5-
               Our standard of review of the trial court‟s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within range sentencing decisions that reflect a proper application of
the purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707
(Tenn. 2012). The application of the purposes and principles of sentencing involves a
consideration of “[t]he potential or lack of potential for the rehabilitation or treatment of
the defendant . . . in determining the sentence alternative or length of a term to be
imposed.” T.C.A. § 40-35-103(5). Trial courts are “required under the 2005
amendments to „place on the record, either orally or in writing, what enhancement or
mitigating factors were considered, if any, as well as the reasons for the sentence, in order
to ensure fair and consistent sentencing.‟” Bise, 380 S.W.3d at 706 n.41 (citing T.C.A. §
40-35-210(e)). Under the holding in Bise, “[a] sentence should be upheld so long as it is
within the appropriate range and the record demonstrates that the sentence is otherwise in
compliance with the purposes and principles listed by statute.” Id. at 709.

              With respect to consecutive sentencing, our supreme court has held that the
standard of review adopted in Bise “applies similarly” to the imposition of consecutive
sentences, “giving deference to the trial court‟s exercise of its discretionary authority to
impose consecutive sentences if it has provided reasons on the record establishing at least
one of the seven grounds listed in Tennessee Code Annotated section 40-35-115(b).”
State v. Pollard, 432 S.W.3d 851, 861 (Tenn. 2013).

              The defendant‟s 31 prior convictions, including 11 prior convictions for the
possession, sale, or delivery of Schedule II drugs, made him a career offender, see id. §
40-35-108(a), and resulted in his receiving a sentence of 30 years for each of his three
convictions, see id. § 40-35-108(c) (“A defendant who is found by the court beyond a
reasonable doubt to be a career offender shall receive the maximum sentence within the
applicable Range III.”); id. § 40-35-112(c)(2) (“A Range III sentence is . . . [f]or a Class
B felony, not less than twenty (20) nor more than thirty (30) years.”). The trial court
imposed partially consecutive sentences based upon its finding that the defendant was “an
offender whose record of criminal activity is extensive.” See T.C.A. § 40-35-115(b)(2).

               In our view, the record supports the sentencing decision of the trial court.
The 66-year-old defendant had a criminal history that began in 1979 and included
convictions in each of the ensuing decades. His employment history, however, spanned
only six years. Additionally, the record shows that the defendant was serving an eight-
year probationary sentence for the sale of Schedule II drugs at the time he committed the
offenses in this case. Given the defendant‟s extensive history of criminal convictions, the
trial court did not abuse its discretion by ordering partially consecutive sentences.

                                             -6-
                                IV. Corrected Judgments

             Although not raised by either party, we detect clerical errors in the
judgments that require correction. Generally, “[r]elease eligibility for each defendant
sentenced as a career offender shall occur after service of sixty percent (60%) of the
actual sentence imposed less sentence credits earned and retained by the defendant.”
T.C.A. § 40-35-501(f). Code section 39-17-432, relative to a violation of Code section
39-17-417 in a drug-free school zone, however, requires that,

              [n]otwithstanding any other law or the sentence imposed by
              the court to the contrary, a defendant sentenced for a violation
              of subsection (b) shall be required to serve at least the
              minimum sentence for the defendant‟s appropriate range of
              sentence. Any sentence reduction credits the defendant may
              be eligible for or earn shall not operate to permit or allow the
              release of the defendant prior to full service of the minimum
              sentence.

Id. § 39-17-432(c). As noted above, the defendant was sentenced as a career offender,
putting his “appropriate range of sentence” at “the maximum sentence within the
applicable Range III,” or, in this case, 30 years. Id. § 40-35-108(c) (“A defendant who is
found by the court beyond a reasonable doubt to be a career offender shall receive the
maximum sentence within the applicable Range III.”); id. § 40-35-112(c)(2) (“A Range
III sentence is . . . [f]or a Class B felony, not less than twenty (20) nor more than thirty
(30) years. After applying the provisions of Code sections 39-17-432(c), 40-35-108(c),
and 40-35-112(c)(2), we see that the defendant must serve 100 percent of the each 30-
year sentence imposed by the trial court. Although the trial court recognized and
acknowledged this fact at the sentencing hearing, it failed to memorialize on the
judgment form the minimum mandatory sentence as required by Code section 39-17-
432(c). Consequently, we must remand the case for the entry of corrected judgment
forms that reflect in the “Sentence Length” portion of the judgment form that, pursuant to
Code section 39-17-432, the defendant must serve a minimum mandatory sentence of 30
years for each of his convictions.

                                        Conclusion

             Based upon the foregoing analysis, we affirm the convictions and sentences
but remand the case to the trial court for the entry of corrected judgment forms.

                                          _________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE
                                            -7-
