         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                          JANUARY 2000 SESSION
                                                  FILED
                                                   February 10, 2000
                                                Cecil Crowson, Jr.
STATE OF TENNESSEE,                )           Appellate Court Clerk
                                   )    NO. W1999-01468-CCA-R3-CD
      Appellee,                    )
                                   )    HARDEMAN COUNTY
VS.                                )
                                   )    HON. JON KERRY BLACKWOOD,
BRANDON MARIO BILLS,               )    JUDGE
                                   )
      Appellant.                   )    (Delivery of Cocaine)


FOR THE APPELLANT:                      FOR THE APPELLEE:

G. WILLIAM HYMERS III                   PAUL G. SUMMERS
213 E. Lafayette Street                 Attorney General and Reporter
P.O. Box 98
Jackson, TN 38301                       TARA B. HINKLE
                                        Assistant Attorney General
                                        Cordell Hull Building, 2nd Floor
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493

                                        ELIZABETH T. RICE
                                        District Attorney General

                                        JAMES W. FREELAND, JR.
                                        Assistant District Attorney General
                                        302 Market Street
                                        Somerville, TN 38068




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                       OPINION



        A Hardeman County jury convicted defendant of delivery of less than 0.5
grams of cocaine, a Class C felony. The trial court sentenced defendant to serve

four years as a Range I standard offender in the Tennessee Department of

Correction. In this appeal as of right, defendant challenges the sufficiency of the
evidence upon which the jury based its conviction. Upon our review of the record,

we AFFIRM the judgment of the trial court.




                                       I. FACTS



        As part of a long-term undercover drug operation with the Bolivar Police

Department, undercover agent Kenneth Jones (hereinafter “Agent Jones”) disguised

himself as a drug user. In order to avoid detection as a police officer, he wore
casual clothing, drove a 1989 Cadillac and carried a beer of which he consumed a

small amount prior to the transaction.



        On November 18, 1997, Agent Jones met Investigator Michael Jones

(hereinafter “Investigator Jones”) of the Bolivar Police Department. Investigator
Jones provided Agent Jones cash with which to make a drug buy and information

that Margin Street might yield a successful transaction.



        At approximately 2:00 p.m., defendant flagged down Agent Jones’ car and

approached the passenger side window. 1 Agent Jones requested $20.00 worth of

cocaine. Defendant walked over to another vehicle and returned approximately
thirty seconds later with the drugs which he exchanged for Jones’ $20.00. The

drugs subsequently tested to be 0.1 grams of cocaine.



        After purchasing the cocaine, Agent Jones returned to a predetermined
meeting place and turned the drugs over to Investigator Jones. A few minutes later,

Investigator Jones went to the location of the transaction in an unmarked car. He

spotted defendant whom he knew by sight and name. The defendant ran away

    1
      The Cadillac was equipped with a videotaping device. However, the device was
positioned to show activity on the driver’s side of the vehicle. Because this transaction
occurred on the passenger-side of the car, the videotape did not show defendant.
                                           2
when he saw Investigator Jones. Agent Jones identified defendant as the individual

involved in the transaction by picking his photograph from a book of “mug shots”

provided by Investigator Jones that afternoon.


       Investigator Jones and Agent Jones arrested defendant several months later

at the end of the undercover operation. At the time, Agent Jones identified
defendant as one of the many individuals who sold him illegal drugs. Both officers

made positive in-court identifications of the defendant as the individual that

delivered cocaine to Agent Jones on November 18, 1997.




                        II. SUFFICIENCY OF THE EVIDENCE


       Defendant challenges the sufficiency of the evidence used to convict him of

delivery of cocaine. Specifically, he claims that Agent Jones’ identification of him
is questionable given the transaction’s short time span, the agent’s consumption of

beer prior to the transaction, and the discrepancies between Agent Jones’

description of the suspect in his field notes versus the description in Investigator

Jones’ arrest report.



       Where sufficiency of the evidence is challenged, the relevant question for 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 or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson

v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State

v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses' testimony are matters entrusted exclusively to the jury as the triers of

fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932

S.W.2d 1, 19 (Tenn. Crim. App. 1996).



       In this instance, the proof at trial established that defendant delivered 0.1

grams of cocaine to undercover agent Kenneth Jones.            Agent Jones picked

defendant’s picture from a book of photographs as the person who delivered the
cocaine.   Investigator Michael Jones spotted defendant at the scene of the



                                         3
transaction just minutes after the sale, and the defendant ran away. Both officers

identified defendant at trial.



         The effect of Agent Jones’ consumption of beer on his credibility, given the

transaction’s short time span, was a question for the jury to resolve. See Sheffield,

676 S.W.2d at 547; Brewer, 932 S.W.2d at 19. Likewise, the fact that Agent Jones’
description of defendant (approximately 5'11'’ and about 160 pounds) differed from

the description in Investigator Jones’ arrest report (either 6'3" or 63" and

approximately 140 pounds)2 is not determinative.


         Agent Jones testified that the transaction took less than a minute. He

testified that he consumed perhaps “two swallows” of a beer prior to the drug buy.
Both Agent Jones and Investigator Jones testified that it is common to carry and

consume alcohol in the course of an undercover operation in order to fit in and

avoid detection as a police officer.


         The jury heard testimony regarding the officers’ identification of defendant

as the person involved in this transaction.          It heard the discrepancies in

descriptions, as well as the positive in-court identifications. The return of a guilty

verdict resolved all testimonial conflicts in the state’s favor. See State v. Bigbee,

885 S.W.2d 797, 803 (Tenn. 1994).



         Taking this evidence in the light most favorable to the state, the jury could
reasonably find that the defendant unlawfully delivered cocaine to Agent Jones.

The evidence is sufficient to sustain defendant’s conviction. This issue is without

merit.




                                    CONCLUSION



         Based upon the foregoing, we AFFIRM the judgment of the trial court.




     2
     Apparently, the writing on the arrest report was illegible and the description of
defendant’s height could be read one of those two ways.
                                           4
                                   ____________________________
                                    JOE G. RILEY, JUDGE




CONCUR:



____________________________
JOHN EVERETT WILLIAMS, JUDGE



____________________________
ALAN E. GLENN, JUDGE




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