         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs January 16, 2002

             STATE OF TENNESSEE v. WILLIAM RAY COLLIER

                    Appeal from the Criminal Court for Davidson County
                       No. 2000-C-1553    Cheryl Blackburn, Judge



                   No. M2001-00893-CCA-R3-CD - Filed February 4, 2002


The Defendant, William Ray Collier, was convicted by a jury of two counts of possessing heroin
with intent to sell or deliver within one thousand feet of a school, one count of possessing heroin
with intent to sell or deliver, and three counts of driving on a suspended license. The trial court
sentenced the Defendant to an effective term of seventy-one years. In this appeal as of right, the
Defendant raises three issues: whether the trial court erred in admitting certain expert testimony;
whether the evidence is sufficient to sustain his convictions; and whether his sentence is excessive.
Finding no merit in any of the Defendant’s contentions, we affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER , JJ., joined.

David P. Byrne, Nashville, Tennessee, for the appellant, William Ray Collier.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Bret Gunn, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                            OPINION

        On May 30, 1999, Officer Madeline Cunningham pulled over a Cadillac matching the
description of a stolen vehicle. The Defendant was driving the car, and was alone. Officer Robert
Morris assisted and determined that the Defendant was driving on a suspended license. Accordingly,
he arrested the Defendant. Officer Morris then searched the Defendant, finding on his person $697
in cash and a small amount of marijuana. Officer Morris then searched the car and found a brown
pill bottle under the driver’s seat. The pill bottle contained nineteen small foil packets. When
Officer Morris opened one of the packets he saw an off-white powder that was later determined to
be heroin. Officer Morris also found a cell phone in the car, but found no drug paraphernalia either
in the car or on the Defendant’s person.
        Officer Morris testified that the $697 in cash consisted of one $100 bill; 1 $50 bill; eighteen
$20 bills; eleven $10 bills; ten $5 bills; and twenty-seven $1 bills. He also testified that drug users
usually have only two to three doses in their possession at a time, no cash, and that drug
paraphernalia is found with users ninety-five percent of the time. Officer Morris also explained that
the stop of the Defendant was made within four hundred feet of a school.

         Officer Billy Gross pulled the Defendant over on the night of September 8, 1999, because
the Defendant’s car had a headlight out. Officer Gross determined that the Defendant was driving
on a suspended license, and arrested him. Officer Gross then searched the Defendant and found in
one of his pockets a brown pill bottle. The bottle contained four foil wrappers. Officer Gross
opened one of the foil packets and found a white substance which appeared, he testified, to be heroin.
Officer Gross also found $250 in cash in another of the Defendant’s pockets, consisting of seven $20
bills, five $10 bills, six $5 bills, and thirty $1 bills. Officer Gross found no drug paraphernalia on
the Defendant. Officer Gross testified that drug users usually have only one dose of drugs on them
and maybe twenty dollars.

        Officer Matthew Dickson assisted Officer Gross, and searched the Defendant’s vehicle.
Officer Dickson found in the car a small amount of marijuana, rolling papers, and a cell phone. He
found no other drug paraphernalia.

         On the evening of October 25, 1999, Officer Jonathan Marklein pulled the Defendant over
because his car had a rear taillight out. Officer Marklein determined that the Defendant was driving
on a suspended license and arrested him. Officer Marklein then searched the Defendant and found
on his person a small amount of marijuana; a pill bottle holding five foil packets containing a white
powdery residue; a film canister holding twenty-four smaller foil packets containing the same white
residue; and $768 in cash. The cash consisted of one $100 bill; twenty-two $20 bills; fourteen $10
bills; eleven $5 bills; and thirty-three $1 bills. When Officer Marklein searched the Defendant’s
vehicle, he found a cell phone and some marijuana. He found no drug paraphernalia on the
Defendant or in the car. The stop was made approximately six hundred feet from a school. Officer
Marklein testified that drug users generally have only one to two doses of drugs on them; about
fifteen dollars; and usually have drug paraphernalia on them.

       All of the foil packets confiscated from the Defendant were turned over to the TBI crime lab
and determined to contain heroin.

       Emmett Jenkins, owner of a bail bonding company, testified that the Defendant had arranged
for bond with his company on May 30, 1999, and again on September 9, 1999.

        Sergeant James McWright testified that he presided over the Twentieth Judicial District Drug
Task Force and had been a police officer for twenty-nine years, working primarily on drug
investigations. The trial court admitted Sgt. McWright as an expert witness in narcotics
investigation. Sgt. McWright examined the foil packets recovered from the Defendant and testified
that the smaller ones would sell for twenty to twenty-five dollars each, with the larger ones selling
for forty to fifty dollars each. He testified that heroin addicts would normally have no more than two

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to three “hits” on them, and stated that he did not believe he had “ever caught a drug junkie with over
three hits of heroin.” He explained that he had known users who were also sellers, and stated that,
“normally they don’t package what they are going to use themselves.” He also testified that drug
users normally have drug paraphernalia with them.

        At defense counsel’s request, Sgt. McWright examined the Defendant’s arms outside the
presence of the jury. In the jury’s presence, Sgt. McWright then testified that the Defendant’s arms
bore scars indicating intravenous drug usage. Sgt. McWright also testified that heroin users typically
injected the drug into their veins, oftentimes in their arms. Sgt. McWright also explained that heroin
was very addictive.

        DeWayne Whitlow testified on behalf of the Defendant, stating that he was the Defendant’s
step-brother. Mr. Whitlow testified that he knew the Defendant was a heroin addict, but that he
never knew the Defendant to sell drugs. He stated that the Defendant worked for him sporadically
and that he would not pay the Defendant his money all at once, because he was afraid the Defendant
would purchase drugs with the money.
        Kenneth Birdwell of the Tennessee Department of Safety testified that the Defendant’s
driver’s license was on suspended status on May 30, 1999, September 8, 1999, and October 25,
1999.

            ADMISSIBILITY OF SGT. MCWRIGHT’S EXPERT TESTIMONY

        The Defendant raises several issues concerning the trial court’s decision to allow Sgt.
McWright to testify as an expert witness in the area of narcotics investigations. He first contends
that the trial court erred in allowing Sgt. McWright to testify as an expert witness, because he
“demonstrated no superior expertise on the specific subject of his testimony, i.e., the drug heroin.”
The Defendant bases this claim on the fact that Sgt. McWright testified that heroin was no longer
the drug of choice on the street and that his experience with it occurred primarily in the nineteen-
seventies to early eighties. Initially, we note that the Defendant has waived this issue because he did
not object at trial to the trial court’s recognition of Sgt. McWright as an expert. See Tenn. R. App.
P. 36(a). Furthermore, we find that the trial court properly concluded that Sgt. McWright qualified
as an expert witness.

       Rule 702 of the Tennessee Rules of Evidence provides:
              If scientific, technical, or other specialized knowledge will
              substantially assist the trier of fact to understand the evidence or to
              determine a fact in issue, a witness qualified as an expert by
              knowledge, skill, experience, training, or education may testify in the
              form of an opinion or otherwise.

Questions concerning the qualifications, admissibility, relevancy, and competency of expert
testimony are matters left within the sound discretion of the trial court. See State v. Ballard, 855
S.W.2d 557, 562 (Tenn. 1993). Our standard of review, therefore, is whether the trial court abused
its discretion in allowing Sgt. McWright to testify as an expert witness. See State v. Coley, 32

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S.W.3d 831, 833 (Tenn. 2000). Before we can reverse the trial court for an abuse of discretion, the
record must demonstrate that the trial court ‘“applied an incorrect legal standard, or reached a
decision which is against logic or reasoning that caused an injustice to the party complaining.’” Id.
(quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)).

         The trial court did not abuse its discretion in determining that Sgt. McWright was qualified
to testify as an expert witness in the area of narcotics investigation. Sgt. McWright testified that he
has been the sergeant over the 20th Judicial District Drug Task Force since 1988. Sgt. McWright
stated that the Task Force’s main focus was on “the major suppliers of the street.” Prior to that
assignment, Sgt. McWright worked in the Vice Control Division where he spent ninety percent of
his time on narcotics investigations. His work in this area included undercover buys, executing
search warrants, working with informants, and otherwise conducting “street level and mid-level drug
investigations.” He explained that, when he first went to work in Vice in 1975, the major drugs on
the street were marijuana and heroin. Heroin continued to be the drug of choice until the early
eighties when, Sgt. McWright testified, “the heroin that was being sold to the drug users [became]
of such poor quality.” Clearly, Sgt. McWright’s work history qualified him as an expert in the area
of apprehending narcotics users and dealers, even if his experience with heroin occurred primarily
in years past. Given the fortunate decline in heroin usage in current times, the Defendant’s objection
that Sgt. McWright’s knowledge is outdated could be made to any proposed expert testimony on the
subject. However, we decline to hold that the mere passage of time rendered Sgt. McWright’s
knowledge insufficiently specialized, particularly given the similarity between his description of how
heroin held for sale was packaged and the manner in which the heroin held by the Defendant was
packaged. The trial court did not err in allowing Sgt. McWright to testify as an expert witness, and
this issue is therefore without merit.

        The Defendant also complains that Sgt. McWright’s testimony did not substantially assist
the jury in understanding the evidence or determining a fact in issue. We respectfully disagree. The
fact at issue in this case for which Sgt. McWright’s testimony was admitted was whether the
Defendant possessed the heroin found on his person and in the car he was driving for his own
personal use, or for sale or delivery. The Defendant’s defense was that he was an addict and
possessed the heroin for his own use. The State’s theory was that the Defendant was holding the
heroin for sale or delivery. The evidence which the jury was relying upon to make this
determination included the amount of heroin recovered from the Defendant; the way in which the
heroin was packaged; the amount and denominations of cash recovered from the Defendant; and the
lack of drug paraphernalia recovered from the Defendant. These are facts with which, it is safe to
presume, the jury was not familiar.

        During his testimony, Sgt. McWright described his knowledge of how heroin is introduced
into the body by users; the paraphernalia used to enable the user to inject the drug intravenously; the
typical volume of a dose; and the method by which the individual doses were packaged into folded
aluminum foil. He opined as to the amount of money each of the foil packets recovered from the
Defendant would bring on the street. He stated that he had previously seen drugs, including heroin,
carried in film canisters. He stated that, in his experience, “junkies” would have no more than two
or three doses of heroin on them at any one time, and that he had “never seen cash on a heroin user

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unless it was when he was on the way into a dope house [to make a buy].” When asked whether he
had known heroin users who were also dealers, he testified that he had, explaining that “it’s so
expensive they’ve got to get the money from somewhere, so what they will do, they will buy a spoon
or a dipper, whatever they can afford, and they will package half of it for themselves, or for resale,
and keep the other but normally they don’t package what they are going to use themselves.” He
explained further: “[T]here is a purity factor. If I’m going to buy a dipper of heroin and I am a
junkie and I’m going to get off on the drugs, I’m not going to cut what I’m using. I’m going to cut
what I’m selling, you know. That way, it pretty well equals out. I’ve got enough money to go re
up, b[u]y some more drugs, and supply myself and supply somebody else, too. . . . [I]t’s a way of
income.” Sgt. McWright also testified that, in his experience, the only commodity that dealers
would take other than cash in payment for drugs was stolen merchandise. In reviewing the
denominations of the cash recovered from the Defendant, Sgt. McWright testified that purchases of
heroin most frequently involved twenty-dollar bills. He stated that the only time he knew of a heroin
user having a similar amount of cash on his or her person would be after a robbery. Finally, Sgt.
McWright testified that he had never seen someone who was purely a user have the number of
individual doses recovered from the Defendant.

         The State never asked Sgt. McWright whether, in his opinion, the Defendant possessed the
heroin for his use or for sale or delivery. Rather, the State inquired about the officer’s previous
experiences with drug users and drug dealers, in an attempt to educate the jury about courses of
conduct and business in the drug trade with which the jurors were, presumably, unfamiliar. That is,
Sgt. McWright testified about his specialized knowledge in an area about which the jury,
presumably, had little or no knowledge. This testimony was appropriate in order to substantially
assist the jury to understand the significance of the evidence recovered from the Defendant upon his
arrests. Accordingly, the trial court did not err in concluding that Sgt. McWright’s testimony would
substantially assist the trier of fact, and this issue is without merit.

        The Defendant also contends that Sgt. McWright’s testimony should have been excluded on
the basis that its probative value was substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury. See Tenn. R. Evid. 403. The Defendant raised this
objection at trial and was overruled. He now argues that Sgt. McWright’s testimony “essentially
presents a profile.” Again, we respectfully disagree. Sgt. McWright testified about the
circumstances surrounding his past investigations into heroin users and dealers. The arresting
officers had far fewer years in police work than did Sgt. McWright, and none of it during heroin’s
heyday. Sgt. McWright was able to offer the jury a context with which to compare the evidence
gathered from the Defendant, based on substantial experience with the drug and the culture around
that drug. While certainly prejudicial, it was not unfairly so. Based on his experience, Sgt.
McWright was also able to tell the jury that the Defendant bore scars consistent with intravenous
drug usage, which supported the Defendant’s theory of defense. Further, Sgt. McWright’s testimony
was not confusing or misleading: Sgt. McWright was clear that his current experiences with heroin
were rare, and that his knowledge was based primarily on experiences in years past. Thus, the jury
had the opportunity to conclude that Sgt. McWright’s testimony might be somewhat limited in its
current applicability. In short, we find no abuse of discretion in the trial court’s determination that


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the probative value of Sgt. McWright’s testimony was not substantially outweighed by the danger
of unfair prejudice, etc., and this issue is therefore without merit.

                             II. SUFFICIENCY OF THE EVIDENCE

        The Defendant next complains that the evidence is not sufficient to support his three
convictions of possession of heroin with the intent to sell or deliver. Tennessee Rule of Appellate
Procedure 13(e) prescribes that “[f]indings of guilt in criminal actions whether by the trial court or
jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt
beyond a reasonable doubt.” Evidence is sufficient if, 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. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Smith,
24 S.W.3d 274, 278 (Tenn. 2000). In addition, because conviction by a trier of fact destroys the
presumption of innocence and imposes a presumption of guilt, a convicted criminal defendant bears
the burden of showing that the evidence was insufficient. See McBee v. State, 372 S.W.2d 173, 176
(Tenn. 1963); see also State v. Buggs, 995 S.W.2d 102, 105-06 (Tenn. 1999); State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

        In its review of the evidence, an appellate court must afford the State “the strongest legitimate
view of the evidence as well as all reasonable and legitimate inferences that may be drawn
therefrom.” Tuggle, 639 S.W.2d at 914; see also Smith, 24 S.W.3d at 279. The court may not “re-
weigh or re-evaluate the evidence” in the record below. Evans, 838 S.W.2d at 191; see also Buggs,
995 S.W.2d at 105. Likewise, should the reviewing court find particular conflicts in the trial
testimony, the court must resolve them in favor of the jury verdict or trial court judgment. Tuggle,
639 S.W.2d at 914. All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact, not the appellate courts.
See State v. Morris, 24 S.W.3d 788, 795 (Tenn. 2000); State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987).

         Our Criminal Code provides that “[i]t is an offense for a defendant to knowingly . . .
[p]ossess a controlled substance with intent to manufacture, deliver or sell such controlled
substance.” Tenn. Code Ann. § 39-17-417(a)(4). Heroin is a Schedule I controlled substance. See
id. § 39-17-406(c)(11). The Defendant contends that the evidence does not support the jury’s finding
that he possessed the heroin with the intent to sell or deliver it. We disagree. The evidence
demonstrated that persons possessing heroin for their personal use typically carry no more than three
doses on them; typically have very little cash on their persons; and typically carry the drug
paraphernalia necessary to use the drug. The Defendant was arrested while carrying substantially
more than three doses of heroin; the heroin was packaged in a manner consistent with being held for
sale; he had large amounts of cash on his person; and he carried no drug paraphernalia. This
evidence was more than sufficient for the jury to find the Defendant guilty beyond a reasonable
doubt of possessing the heroin with the intent to sell or deliver it. Accordingly, this issue is without
merit.



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                                        III. SENTENCING

         In his final issue, the Defendant contends that the trial court imposed an excessive sentence
for his drug convictions. The jury convicted the Defendant of two counts of possessing heroin with
the intent to sell or deliver within one thousand feet of a school, a Class A felony. See Tenn. Code
Ann. §§ 39-17-417(b); 39-17-432(b). The trial court sentenced the Defendant as a Range I standard
offender to twenty-three years on each of these convictions. The jury also convicted the Defendant
of one count of possessing heroin with the intent to sell or deliver, a Class B felony. See id. § 39-17-
417(b). The trial court sentenced the Defendant as a Range III persistent offender to twenty-five
years on this conviction. Because the Defendant was on bail at the time he committed the second
and third drug offenses, his sentences for those convictions are required to be run consecutively. See
Tenn. R. Crim. P. 32(c)(3)(C). The Defendant argues that he should have been sentenced to twenty
years on each of these convictions, challenging the trial court’s application of mitigating and
enhancement factors.

        When an accused challenges the length, range, or manner of service of a sentence, this Court
has a duty to conduct a de novo review of the sentence with a presumption that the determinations
made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is
“conditioned upon the affirmative showing in the record that the trial court considered the sentencing
principles and all relevant facts and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991).

         When conducting a de novo review of a sentence, this Court must consider: (a) the evidence,
if any, received at the trial and sentencing hearing; (b) the presentence report; (c) the principles of
sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics of the
criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement
made by the defendant regarding sentencing; and (g) the potential or lack of potential for
rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-102, -103, -210; State v. Brewer, 875
S.W.2d 298, 302 (Tenn. Crim. App. 1993); State v. Thomas, 755 S.W.2d 838, 844 (Tenn. Crim.
App. 1988).

        If our review reflects that the trial court followed the statutory sentencing procedure, that the
court imposed a lawful sentence after having given due consideration and proper weight to the
factors and principles set out under the sentencing law, and that the trial court’s findings of fact are
adequately supported by the record, then we may not modify the sentence even if we would have
preferred a different result. See State v. Pike, 978 S.W.2d 904, 926-27 (Tenn. 1998); State v.
Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        In sentencing the Defendant, the trial court applied one “heavy” enhancement factor: that
the Defendant has a previous history of criminal convictions or criminal behavior in addition to those
necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(1). The Defendant’s
record of at least eleven prior felony convictions clearly supports application of this factor. The trial
court also applied one “very light” mitigating factor: that the Defendant’s conduct neither caused
nor threatened serious bodily injury. See id. § 40-35-113(1). The presumptive sentence for the Class

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A felonies is the midpoint in the range, in this case, twenty years. See id. §§ 40-35-112(a)(1); 40-35-
210(c). The sentence is then subject to being increased based on enhancement factors, and decreased
based on mitigating factors. See id. § 40-35-210(e). The maximum sentence is twenty-five years.
See id. § 40-35-112(a)(1). Based on its application of enhancement and mitigating factors, the trial
court sentenced the Defendant to three years more than the presumptive sentence, and two years less
than the maximum sentence. We see no error in the trial court’s ruling.

        With respect to the Class B felony, the presumptive sentence was twenty years. See id. §§
40-35-112(c)(2); 40-35-210(c). Applying the same enhancement and mitigating factors, the trial
court increased the sentence to twenty-five years, five years more than the minimum and five years
less than the maximum. See id. § 40-35-112(c)(2). Again, we see no error in the trial court’s ruling.
Accordingly, we find the Defendant’s objection to his sentences to be without merit.

       The judgment of the trial court is affirmed.




                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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