             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON            FILED
                              APRIL 1998 SESSION
                                                           March 22, 1999

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE                    )   No. 02C01-9703-CC-00087
                                      )
      Appellee,                       )   MADISON COUNTY
                                      )
v.                                    )   HON. FRANKLIN MURCHISON,
                                      )   JUDGE
VINCENT BURRIS, a.k.a.                )
VINSON BURRIS,                        )   (Unlawful sale and delivery of
                                      )    cocaine)
      Appellant.                      )


For the Appellant:                        For the Appellee:
George Morton Googe                       John Knox Walkup
District Public Defender                  Attorney General & Reporter
Jackson, Tennessee
(At Trial)                                Georgia Blythe Felner
                                          Counsel for the State
C. Michael Robbins                        Nashville, Tennessee
Memphis, Tennessee
(On Appeal)




OPINION FILED: ____________



AFFIRMED



William M. Barker, Special Judge
                                                  OPINION

        The appellant, Vincent Burris, appeals as of right his conviction in the Madison

County Circuit Court of selling crack cocaine, a Schedule II controlled substance. The

trial court sentenced appellant to serve four years in the Tennessee Department of

Correction. On appeal, he contends that the indictment did not sufficiently allege an

offense and the evidence of identity was insufficient to sustain the verdict. We

conclude that the indictment is adequate and that the evidence is sufficient to support

the verdict. The conviction and sentence are affirmed.

                                              BACKGROUND

        On August 28, 1995, Dwayne Yarborough, a confidential informant met with

three Lexington police officers to prepare for an undercover drug purchase.1 The

police instructed Yarborough to purchase cocaine from a black male named “Vince.”

Around 8:00 p.m., Yarborough testified that he approached the appellant on Belmont

Street. He asked appellant if he could purchase a “forty-cent piece” of crack cocaine

from him. Appellant handed Yarborough a white substance as Yarborough handed

appellant forty ($40.00) dollars. Yarborough returned to the location of the police

officers and turned the white substance over to them.2 Later, the police sent the white

substance to the Tennessee Bureau of Investigation Crime Lab for testing. The

substance tested positive for cocaine. Appellant was thereafter indicted for the

unlawful sale and delivery of cocaine.3 See Tenn. Code Ann. §39-17-417 (1997).

        At trial, appellant testified that he was at home with his daughter from 4:30 p.m.

until 1:00 a.m. the following morning. Teketa Jones testified that she was with the

appellant and his daughter around 4:30 that afternoon. Appellant told Ms. Jones that


        1
         During the previous two years, Yarborough had worked on one hundred drug purchases for the
Lexingto n Police D epartm ent.

        2
        At the time of the purchase, the police officers were located a few miles away from the
informant and were not in a position to observe the exchange.

        3
          At the tim e the crim e occu rred, app ellant was out on bo nd for an aggrav ated as sault con viction.
The trial court judge had given him a m onth to get his affairs in order before reporting to prison to serve
a six year s entenc e for the c onviction.

                                                       2
he was going to be staying home with his daughter all evening. At approximately 1:00

a.m., the child’s mother picked up her daughter from appellant’s house. However,

appellant failed to produce evidence to corroborate his testimony that he was at home

with his daughter at 8:00 p.m.

        In addition to his alibi defense, the appellant also argued that he could not have

been the one who sold the cocaine because the description of the suspected drug

dealer given Yarborough did not match his appearance. At trial, there was conflicting

testimony regarding the description of the suspected drug dealer. One police officer

testified that the description of the suspected drug dealer provided to the police

characterized the suspect as a light skinned, black male of 5'10" height named

“Vince.” Appellant is a dark skinned, black male of 5'8" height. The informant,

however, did not recall hearing this description or providing it to the police.

        Based on the foregoing evidence, the jury convicted appellant of the unlawful

sale and delivery of cocaine. Tenn. Code Ann. §39-17-417 (1997).

                                              ANALYSIS

        First, appellant argues that the indictment is invalid because it fails to specify

the requisite mens rea of the offense. The statute in question provides that it is a

criminal offense to knowingly sell or deliver a controlled substance. Tenn. Code Ann.

§39-17-417(a)(2)-(3). The first count4 of the indictment in the appellant’s case states:

        THE GRAND JURORS of Madison County, Tennessee, . . . present
        that VINCENT BURRIS on or about August 28, 1995, . . . did unlawfully
        sell a controlled substance, to-wit: Cocaine, a Schedule II Controlled
        Substance as classified in §39-17-408, . . . in violation of T.C.A.
        §39-17-417 . . .

The second count of the indictment states:

        THE GRAND JURORS of Madison County, Tennessee . . . present
        that VINCENT BURRIS on or about August 28, 1995, . . . did unlawfully
        deliver a controlled substance, to-wit: Cocaine, a Schedule II Controlled
        Substance as classified in §39-17-408, . . . in violation of T.C.A.


        4
         The appellant was convicted of both counts. The trial court merged them into a single offense
of sale and delivery and sentenced the appellant to four (4) years in prison. A fine of $2,000.00 was also
assessed against the appellant but the judgment form makes no reference to a fine.

                                                    3
       §39-17-417 . . .

Although the indictment does not state the required mental state, it refers to the

statute that defines the offense.

       Our Supreme Court’s decision in State v. Hill, 954 S.W.2d 725 (Tenn. 1997),

established that for offenses which neither require nor plainly dispense with the mental

state requirement, the failure to allege the culpable mental state on an indictment is

not a fatal defect. Id. at 726. An indictment failing to allege a mental state for such

offenses is sufficient to support a conviction as long as:

       (1) the language of the indictment is sufficient to meet the constitutional
       requirement of notice to the accused of the charge against which the
       accused must defend, adequate basis for entry of a proper judgment,
       and protection from double jeopardy;

       (2) the form of the indictment meets the requirements of Tenn. Code Ann.
       §40-13-202; and

       (3) the mental state can be logically inferred from the conduct alleged.

Id. at 726-727. The court noted, “the purpose for the traditionally strict pleading

requirements was the existence of common law offenses whose elements were not

easily ascertained by reference to a statute. Such common law offenses no longer

exist.” Id. at 728. The Hill court did not address the specific issue raised in this

appeal.

       However, one year later, our Supreme Court addressed this issue in Ruff v.

State, 978 S.W.2d 95 (Tenn. 1998). In Ruff, the indictment for aggravated kidnaping

stated:

       that BILLY JOE SMITH and TERRY DEAN SNEED . . . did unlawfully
       remove Karen Rios from her place of employment, so as to substantially
       [sic] interfere with Karen Rios’ liberty,. . . in violation of Section
       39-13-304 of the Tennessee Code Annotated . . .

Id. at 99. The appellant argued that the indictment was invalid because the “knowing”

element was omitted from the indictment. Id. The aggravated kidnaping statute

requires a culpable mental state by defining the offense as “false imprisonment, as

defined in § 39-13-302.” Id. Tennessee Code Annotated Section 39-13-302 (1991)


                                             4
defines false imprisonment as the “knowing removal or confinement of another.” Id.

The Court held that “where the constitutional and statutory requirements outlined in

Hill are met, an indictment which cites the pertinent statute and uses its language will

be sufficient to support a conviction.” Id. at 100. Because the mental state was

provided by the statute cited in the indictment, the Court stated that the Hill analysis

applied to offenses that specify a certain mental state. Id. at 99. The Court noted that

the citation of the statute in the indictment placed the appellant on sufficient notice of

the requisite mental state of the offense. Id. After applying the Hill analysis, the Court

held that the judgment of the conviction was valid. Id.

       Recently, our Supreme Court reaffirmed its holdings in Ruff and Hill. See

Crittenden v. State, No. 01-S-01-9712-CR-00267, 1998 Tenn. LEXIS 574 (S. Ct.

October 12, 1998). The Court discussed the distinction between the requirements for

a valid indictment and the proof required for a conviction. Id. at 3. The Court stated:

“A conviction requires proof beyond a reasonable doubt of every element of the

offense. An indictment needs only to satisfy the constitutional and statutory

requirements in Hill for it to support a conviction.” Id. Again, the Court stressed that it

has moved away from strict pleading requirements and will not “embrac[e]

technicalities that are empty and without reason.” Id.

       Applying Crittenden and Ruff to the present case, we find the indictment to be

valid. When the indictment is read in conjunction with Tennessee Code Annotated

Section 39-17-417, it is apparent that the mental element is included in the offense

and an implicit part of the indictment. Because the indictment cites the pertinent

statute and satisfies the constitutional and statutory requirements in Hill, it is sufficient

to support the conviction.

       Under the first Hill prong, the indictment placed appellant on sufficient notice of

the requisite mental state by specifically referring to Tennessee Code Annotated §39-

17-417. Additionally, the language of the indictment provides an ample basis for a



                                              5
proper judgment and double jeopardy protection. Applying the second prong, we find

that the facts included in the indictment are sufficient to meet the statutory

requirements of Tennessee Code Annotated §40-13-202 (1990). Lastly, because

knowledge is inferable from the conduct alleged in the indictment --the unlawful sale

and delivery of cocaine-- the indictment satisfies the third prong of the Hill test. Thus,

we hold that the indictment was proper and contained the requisite mental state as

required by law.

        In his second argument, appellant contends that the evidence of identity is

insufficient to sustain his conviction.5 Appellant argues that Yarborough is the only

person who can identify him as the perpetrator. He says that Yarborough was

provided with a description that did not match appellant’s characteristics. Thus, he

concludes that the evidence of his identity is insufficient for a reasonable jury to have

found that he sold cocaine. We disagree. Yarborough’s identification of appellant at

trial along with his testimony that he purchased cocaine from the appellant are

sufficient to support the conviction.

        An appellant challenging the sufficiency of the evidence has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned

by the trier of fact in his or her case. This Court will not disturb a verdict of guilt for

lack of sufficient evidence unless the facts contained in the record and any inferences

which may be drawn from the facts are insufficient, as a matter of law, for a rational

trier of fact to find the defendant guilty beyond a reasonable doubt. State v. Tuggle,

639 S.W.2d 913, 914 (Tenn. 1982). In our review, we must consider the evidence in

the light most favorable to the prosecution in determining whether “any rational trier of

fact could have found the essential elements of the offense beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979).



        5
           Appellant filed a motion to suppress the informant’s testimony that identified the appellant in a
pre-trial pho to line up an d identification of appe llant at trial. The trial c ourt gran ted the m otion to
sup pres s the phot o lineu p, bu t den ied th e m otion as to the ide ntifica tion a t trial.

                                                      6
       After reviewing the evidence, we conclude that it is sufficient to support the

jury’s verdict. The police instructed Yarborough to purchase cocaine from a black

male named “Vince.” Appellant’s name is Vincent. At trial, the informant identified

appellant as the person who sold him the cocaine. Appellant failed to produce any

evidence that would corroborate his testimony that he was at home with his daughter

at 8:00 p.m. Questions concerning the credibility of witnesses, the weight and value to

be given to the evidence, as well as factual issues raised by the evidence are resolved

by the trier of fact, not this Court. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.

1978). This court does not reweigh or re-evaluate the evidence and is required to

afford the State the strongest legitimate view of the proof contained in the record, as

well as all reasonable and legitimate inferences which may be drawn therefrom.

Cabbage, 571 S.W.2d at 825.

       Contrary to appellant’s assertion, there was sufficient evidence for the jury to

believe that appellant sold cocaine to Yarborough. Though there were no other

eyewitnesses, the informant was directly involved in the drug deal and provided

eyewitness testimony to the events. Thus, we find that sufficient evidence existed to

establish the identity of appellant as the perpetrator of the offense and to sustain the

conviction.

       Having considered the entire record before us, we conclude that the trial court

committed no reversible error. Hence, we affirm the appellant’s conviction and

sentence.




                                          _________________________________
                                          WILLIAM M. BARKER, SPECIAL JUDGE




                                            7
CONCUR:


_____________________
DAVID G. HAYES, JUDGE



_______________________
JOE G. RILEY, JR., JUDGE




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