        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 7, 2012

                 STATE OF TENNESSEE v. HAROLD MOORE

              Direct Appeal from the Criminal Court for Shelby County
                       No. 10-02071     Paula Skahan, Judge


              No. W2011-02333-CCA-R3-CD - Filed December 26, 2012


A Shelby County Criminal Court Jury convicted the appellant, Harold Moore, of selling less
than .5 grams of cocaine, possessing less than .5 grams of cocaine with intent to sell, and
possessing less than .5 grams of cocaine with intent to deliver. After a sentencing hearing,
the trial court merged the convictions and sentenced him to five years in confinement. On
appeal, the appellant contends that the evidence is insufficient to support the convictions.
Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
and R OGER A. P AGE, JJ., joined.

Tony N. Brayton (on appeal) and Alicia Kutch (at trial), Memphis, Tennessee, for the
appellant, Harold Moore.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Doug Carriker, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       At trial, Officer Shawn May of the Memphis Police Department (MPD) testified that
in August 2009, he was working in the Undercover Investigations Unit as a “deep cover
operative.” About 1:00 p.m. on August 4, 2009, Officer May was putting gasoline into his
truck at the BP station at the intersection of Shelby Drive and Tulane Road. He said he made
eye contact with a man and asked if the man was “good,” which was Officer May’s way of
asking if the man had any drugs. Officer May gave the man twenty dollars, and the man gave
him a substance that looked like crack cocaine. Officer May video-recorded the transaction,
and the State played the video for the jury.

        Officer May testified that the man said his name was “Red” and that the man gave him
a telephone number. Officer May recorded the number in his cellular telephone, returned to
his truck, and put the substance into a bag. Officer May later gave the substance to Officer
Anthony Goodwin. Officer Goodwin tested the substance in Officer May’s presence, and
the substance tested positive for cocaine. Officer May said that he put the telephone number
the man had given him into a database and that the number “came back to” the appellant.
From the telephone number, Officer May learned the appellant’s name, date of birth, and
social security number. Two to five hours after the drug transaction, Officer May looked up
the appellant’s photograph in another database. He said that “as soon as I saw the image, it
was in fact the same person who I had just gotten the crack cocaine from that day.” He
explained that

              throughout time [a] person’s characteristics will change a little
              bit but one in particular looked very close to exact age and
              exactly how I had just viewed the person. It was enough to
              where at the exact time I saw the picture I knew it was in fact
              the same person.

Officer May identified the appellant at trial as the man who sold him cocaine on August 4,
2009. He said the appellant did not look the same as he did in the database photograph in
that the appellant at trial was “[c]lean cut, shaved, he’s got glasses on, tie, looks like his
complexion is a little different.” When asked what characteristics he recognized about the
appellant, Officer May said,

                      First and foremost the eyes, eyes always tell it for me, but
              throughout time and having training I look at hairlines. You
              don’t look at things that can change, beards, even tattoos. You
              look at hairlines and eyes, ears how they’re set, lips, mouth. You
              don’t pay attention to clothing and how people present
              themselves.

        Officer May testified that he gave the appellant’s information to the MPD’s
identification team and that the team put together a photograph array containing the
appellant’s photograph. On September 29, 2009, Officer May viewed the array and
identified the appellant. He said he was certain the appellant was the man who sold him
cocaine on August 4, 2009.

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       On cross-examination, Officer May testified that the appellant was an “average size”
and that he thought the appellant was wearing a tank top and shorts on August 4. He said he
also thought the appellant had “a little bit” of facial hair at the time of the transaction. Officer
May worked as an undercover operative for fourteen months and conducted 800 to 900 drug
transactions during that time. He said he remembered this particular transaction because

               I was the one that identified him and -- doing research. He gave
               an address on a report that was less than a mile from where we
               did you know the drug transaction. So me being able to ID him
               that put me more involved and that helped me recall certain
               parts of it better.

Officer May conducted other drug transactions on August 4, 2009, but his transaction with
the appellant was the first one of the day.

        Officer Anthony Goodwin testified that in August 2009, he was an evidence custodian
for the MPD’s Undercover Operations Unit and was responsible for processing and tagging
evidence bought by “undercovers.” On August 4, 2009, Officer Goodwin processed and
tagged evidence collected by Officer May. He tested the substance Officer May bought at
the BP station, and the substance tested positive for cocaine. The cocaine weighed 0.2
grams.

       Detective Chartell Butler of the MPD testified that he was responsible for processing
paperwork for drug seizures. In December 2010, he received a request from the district
attorney’s office to transport the cocaine in this case to the Tennessee Bureau of Investigation
(TBI). Detective Butler transported the evidence as requested.

       Officer Jonathon Clapp of the MPD testified that on September 21, 2009, he created
a six-photograph array that included the appellant’s photograph. On September 29, 2009,
he showed the array to Officer May. On cross-examination, Officer Clapp testified that
officers sometimes misidentified defendants. However, he said that misidentifications
occurred “[v]ery rarely.”

        Melanie Johnson, a special agent forensic scientist with the TBI, testified that she
tested the substance delivered by Detective Bulter. The substance was cocaine and weighed
0.1 grams. At the conclusion of her testimony, the State rested its case.

        Lekeshia Douglas testified for the appellant that in March 2009, she met the appellant
in a hospital where Douglas’s husband was dying of cancer and the appellant’s mother was
ill. At that time, the appellant had a mustache and a large tattoo of praying hands on his left

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arm. After the appellant’s mother died, he got another large tattoo on his right arm. The new
tattoo was a picture of his mother. Douglas said that the appellant was not involved in drugs
and that she had never known him to sell drugs. On cross-examination, Douglas testified that
she was not with the appellant on August 4, 2009.

       The then thirty-seven-year-old appellant testified that he did not sell drugs to Officer
May. He said that he lived with both of his parents while he was growing up, that his father
was an architectural engineer for the United States Corps of Engineers, and that his mother
was a school teacher. In 2009, the appellant was unemployed but received $694 per month
in social security disability payments due to a herniated disk in his back. He also was a full-
time student at Southwest Tennessee Community College and received money from student
loans. On April 28, 2009, the appellant’s mother died and left him and his sister about
$50,000. The appellant also received the home in which he grew up and moved into the
home. The house still had a mortgage, but the appellant made the payments. He said that
the home was about one mile from the BP station and that he went to the BP station once or
twice. He said that he only went to the BP station at night.

        The appellant testified that in August 2009, he was studying to be a physical education
teacher and was going to class on a regular basis. He said that he got out of class at 12:15
p.m., that it took him thirty-five to forty-five minutes to drive home, and that he never wore
tank tops to school. The appellant had plenty of money at that time and grown children in
college. He said that he was not the man in the video selling drugs to Officer May and that
the man in the video was darker and larger than he. He said that no tattoos could be seen on
the man’s arms and that the man’s nose was larger than his nose. The appellant removed his
shirt and tie and showed his tattoos to the jury. He said that the telephone number reportedly
given to Officer May was the number for his ex-wife’s telephone and that he had never used
her telephone. He stated that the money his mother left to him “ran out” in April 2010 and
that he could no longer make his mortgage payments. He said he pled guilty to unauthorized
use of a motor vehicle in 2002 and passing a worthless check in 2005.

        On cross-examination, the appellant acknowledged that he was wearing a white tank
top under his shirt and tie and that the tank top was similar to the tank top worn by the man
in the video.

       The jury convicted the appellant as charged of selling less than .5 grams of cocaine,
possessing less than .5 grams of cocaine with intent to sell, and possessing less than .5 grams
of cocaine with intent to deliver, Class C felonies. After a sentencing hearing, the trial court
merged the latter two convictions into the conviction for selling less than .5 grams of cocaine
and sentenced the appellant to five years in confinement.



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                                         II. Analysis

        The appellant contends that the evidence is insufficient to support the convictions
because the State failed to prove that he was the man who sold cocaine to Officer May on
August 4, 2009. In support of his claim, the appellant notes that Officer May never called
the telephone number “Red” gave to him, did not recall any large tattoos on Red’s arms,
identified the appellant from a 2005 database photograph, and participated in hundreds of
drug transactions. The State argues that the evidence is sufficient. We agree with the State.


         When an appellant challenges the sufficiency of the convicting evidence, the standard
for review by an appellate court 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);
Tenn. R. App. P. 13(e). The State is entitled to the strongest legitimate view of the evidence
and all reasonable or legitimate inferences which may be drawn therefrom. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). Questions concerning the credibility of witnesses and
the weight and value to be afforded the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).
This court will not reweigh or reevaluate the evidence, nor will this court substitute its
inferences drawn from the circumstantial evidence for those inferences drawn by the jury.
Id. Because a jury conviction removes the presumption of innocence with which a defendant
is initially cloaked at trial and replaces it on appeal with one of guilt, a convicted defendant
has the burden of demonstrating to this court that the evidence is insufficient. State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        Taken in the light most favorable to the State, the evidence shows that Officer May
made eye contact with a man at the BP station, asked if the man was “good,” and bought $20
worth of crack cocaine from him. The man, who identified himself as “Red,” gave Officer
May a telephone number, which Officer May tracked to the appellant. Once Officer May
learned the appellant’s name, he was able to view a photograph of the appellant and
recognized the appellant immediately as Red. Although Officer May did not recall any large
tattoos on the appellant’s arms, he said that he recognized the appellant from other
characteristics such as his eyes and hairline. The State played the video-recorded transaction
for the jury, and the defense cross-examined Officer May regarding his identification of the
appellant. The jury was able to view the appellant at trial and obviously concluded that he
was the man in the video. The jury, not this court, was in the best position to judge the
credibility of the witnesses, and the jury obviously accredited Officer May’s testimony. The
evidence is sufficient to support the convictions.



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                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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