        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 16, 2014

          STATE OF TENNESSEE v. TIMOTHY ALLEN JOHNSON

                 Appeal from the Criminal Court for Davidson County
                    No. 2012B1770    Cheryl A. Blackburn, Judge




                 No. M2014-00766-CCA-R3-CD - Filed March 2, 2015




The defendant, Timothy Allen Johnson, was convicted of one count of tampering with
evidence, a Class C felony. He was sentenced as a persistent offender to a twelve-year
sentence. On appeal, the defendant argues that the evidence is insufficient to support his
conviction. After a thorough review of the record, the briefs of the parties, and the applicable
law, we affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J. and R OBERT W. W EDEMEYER, J., joined.

Nicholas Tuck McGregor, Nashville, Tennessee, for the appellant, Timothy Allen Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Jeff Burks, Assistant District Attorney
General, for the appellee, State of Tennessee.



                                          OPINION

                              I. Facts and Procedural History

       This case arose out of an incident where the defendant agreed to obtain crack cocaine
for two undercover police officers to purchase. Detective Michael Donaldson testified that
on the evening of March 27, 2012, he and his partner, Detective Brittany Shoesmith, were
participating in a “buy-bust” operation. In a “buy-bust” operation, undercover detectives
pose as drug users to purchase a controlled substance from a target. Once the purchase is
complete, a “takedown team” immediately arrests the seller. The members of the takedown
team wear “clearly marked raid gear” identifying themselves as police officers, and they
move into position to arrest the seller after receiving a “takedown signal” from the
undercover officers. On the evening of the incident, Detectives Donaldson and Shoesmith
were playing the role of drug purchasers. In order to maintain their cover, the detectives
were in an unmarked vehicle that did not have police lights or sirens.

       After receiving reports of drug sales in the area of Waverly and Wedgewood,
Detectives Donaldson and Shoesmith proceeded to the area to see if they could purchase
drugs. When they arrived, the detectives pulled into an alley and encountered a female
walking through the alley. Detective Donaldson asked the woman if she knew where he
could purchase drugs. The woman gestured toward three individuals, one of whom was the
defendant, standing near the end of the alley. Detective Donaldson approached the group on
foot, and the defendant was on a cellular telephone. Detective Donaldson addressed the
group, stating that he needed “a thirty.”1 The defendant replied that he currently did not have
any drugs but was attempting to get more. After the defendant said he needed to “re-up,”
Detective Donaldson walked away, waited for ten minutes, and then returned to the group.

       When he returned, Detective Donaldson again asked the defendant for drugs. The
defendant said that he still did not have any but that he knew a place where he could take
Detective Donaldson to get the drugs. They walked across the street, where the defendant
told Detective Donaldson to wait while the defendant approached a house. Detective
Donaldson witnessed the defendant knock on the door, saw the door open, and saw someone
speak with the defendant. The defendant returned to Detective Donaldson and told him that
he was unable to acquire drugs but that he knew of a third location to visit, which would
require Detective Donaldson to drive. After telling Detective Donaldson that the location
was close, the defendant entered the vehicle with Detectives Donaldson and Shoesmith.

        The three drove to a gas station parking lot near Fairfield and Lafayette streets, and
the detectives gave the defendant thirty dollars of photocopied “buy money.” After making
a phone call, the defendant exited the vehicle, and the detectives saw the defendant go into
“the project[s] somewhere.” The detectives lost sight of the defendant and waited in the car
for his return.

       While the detectives were waiting, a “Flex team, which is an entire team of marked
officers in cars that have blue lights” and uniforms, pulled into the parking lot. Officers were

       1
           Detective Donaldson testified that “a thirty” meant thirty dollars’ worth of cocaine.

                                                      2
patrolling the parking lot on foot, and “seven or eight marked officers” were standing in the
parking lot when the defendant returned. After seeing the officers, the defendant became
panicked. He told the detectives, “[W]e got to go, we got to go.” Detective Donaldson told
the defendant that he either needed to receive the drugs or his money before leaving the gas
station, to which the defendant replied, “[W]e’re good, we’re good, we got to go.” The
defendant directed Detective Shoesmith to exit the gas station, and she began driving.

       As they began driving, Detective Donaldson observed the defendant in the backseat
with “a bag of crack” that appeared to be an eighth of an ounce. The drugs were in a corner
portion of a ziploc baggie that had been torn away from the main bag. When Detective
Donaldson remarked that the amount seemed like “a lot for a thirty[,]” the defendant
responded that not all of the drugs were for Detective Donaldson. The defendant opened the
bag and gave Detective Donaldson thirty dollars worth of crack cocaine. Detective
Donaldson secured the drugs by placing them into an ashtray, and Detective Shoesmith
continued to drive. Detective Donaldson then gave the “takedown” signal.

       An officer on the takedown team pulled in front of the vehicle and activated his blue
lights. Detective Donaldson heard the defendant say, “[I]t’s the vice, it’s the vice.”
Detective Donaldson turned toward the backseat and witnessed the defendant placing both
the plastic bag and its contents into his mouth in an attempt to ingest the remaining amount
of drugs. Detective Donaldson began to wrestle with the defendant to prevent him from
consuming the drugs as the takedown team was running toward the vehicle. The takedown
team wore “raid gear that sa[id] police all over the front of it and all over the back of it.” The
defendant fought with the officers who attempted to remove him from the vehicle, and
officers had to forcibly subdue and handcuff the defendant. Before the takedown team was
able to secure the defendant, he was able to consume or ingest the remaining drugs.

       On cross-examination, Detective Donaldson testified that he did not attempt to stop
the defendant from swallowing the contents of the plastic bag until after the takedown team
had turned on their blue lights and approached the vehicle in raid gear.

           Detective Shoesmith testified that she was working undercover with Detective
Donaldson on the evening of the incident and that she was driving their undercover vehicle.
Detective Shoesmith recalled that neither she nor Detective Donaldson wore anything
identifying themselves as police officers but that other officers were in the area wearing
“clearly identifying police raid gear.” Detective Shoesmith identified the defendant as the
individual who entered the vehicle with her and Detective Donaldson. The defendant
directed Detective Shoesmith to drive to a Shell gas station so that he could purchase crack
cocaine with the thirty dollars Detective Donaldson had given him.



                                                3
        Detective Shoesmith did not recall if there were other police officers in the Shell
station parking lot when the defendant returned, and she did not recall the defendant saying,
“[W]e’ve got to get out of here.”

       When the defendant returned to the vehicle and got into the backseat, Detective
Shoesmith witnessed him remove a “small plastic clear baggy” from his clothing. The
substance looked “off white” and appeared to be crack cocaine. After the defendant gave
some of the drugs to Detective Donaldson, he began to twist the bag as if to close it.
Detective Donaldson gave the takedown signal, and officers wearing clearly marked police
gear began to move toward the vehicle. When the other officers approached the vehicle,
Detective Shoesmith observed the defendant place the entire “baggy” into his mouth.

       Detective William Loucks, Jr., testified that he was a member of the takedown team
on the evening of the incident. He was in a vehicle alone, and he was wearing a black police
jacket that contained several patches identifying him as a Metro Police officer. Through a
recording device, Detective Loucks was able to listen to the conversation between the
defendant and Detective Donaldson regarding the crack cocaine. He heard the exchange
between the defendant and Detective Donaldson during which the defendant informed
Detective Donaldson that the crack cocaine was not all for him. After receiving the
takedown signal, Detective Loucks drove to the rear of Detective Shoesmith’s vehicle and
“locked” his bumper onto the car, immobilizing it. When he approached, Detective Loucks
had activated his blue lights and sirens. Detective Loucks identified the defendant as the
individual who was in the backseat of the detectives’ car.

        Detective Loucks was the first officer to approach the vehicle and attempt to open the
door to the backseat. He observed the defendant with his right hand over his mouth, and
Detective Donaldson advised him that the defendant had just put the drugs into his mouth.
After Detective Loucks unlocked the back door, he ordered the defendant “numerous” times
to “spit it out, put your hands down, get out of the car, stop what you’re doing, step out of
the car, police.” The defendant continued “locking” his right hand over his mouth, and
Detective Loucks attempted to remove the defendant from the vehicle and to remove the
defendant’s hand from his mouth.

       After thirty seconds, Detective Loucks was able to pull the defendant’s hand away
from his mouth and remove him from the vehicle and place him onto the pavement. As
Detective Loucks attempted to place the defendant’s hands behind his back and take him into
custody, the defendant continued to struggle. The defendant managed to place his hands
around the front of his mouth and throat area and “began to almost try to push up off the
pavement.” Detective Loucks applied “a pressure point control technique, driving” his
thumb behind the defendant’s ear, which contained “a sensitive nerve pressure point area.”

                                              4
After applying the pressure point control for “about ten to fifteen seconds,” Detective Loucks
was able to place the defendant’s hands behind his back and handcuff him. He agreed that
he was not able to recover anything from the defendant’s mouth.

        Once the defendant was handcuffed, officers transported him to General Hospital so
that he could receive treatment for the drugs that he ingested. Detective Donaldson gave the
substance that he received from the defendant to Detective Loucks, and Detective Loucks
assisted in field-testing the substance. The substance tested positive for cocaine base.

        Detective James McDugle testified that he also was a member of the takedown team
on the evening of the incident. Detective McDugle described his role in the takedown as
“supportive.” Detective McDugle was not in the Shell station parking lot when he heard the
takedown signal, and by the time he arrived at Detectives Donaldson and Shoesmith’s
vehicle, several other narcotics officers had already arrived. The defendant was already in
custody when Detective McDugle arrived at the vehicle, and he did not observe any action
taken by the defendant before arriving at the scene. Detective McDugle submitted a
“white[,] rock[-]like substance” into evidence.

       Special Agent Denotria Patterson, a forensic scientist with the Tennessee Bureau of
Investigation (“TBI”) testified that her job was to test items submitted to the lab to detect the
presence of any controlled or non-controlled substance. Special Agent Patterson tested the
substance submitted by Detectives Loucks, Donaldson, and McDugle and found that it was
cocaine-based.

        Dr. Lawrence Kleuser, an emergency room physician, testified for the defense. He
stated that he treated the defendant when he was admitted to the hospital, although he did not
specifically recall treating the defendant. He testified that the most common symptoms of
a cocaine overdose were hypertension and tachycardia and that the defendant’s medical
record indicated that he exhibited neither of these symptoms. The defendant told Dr. Kleuser
that he was a daily cocaine user, which Dr. Kleuser agreed could raise the level of the
defendant’s tolerance of cocaine. Dr. Kleuser also agreed that the defendant did not display
signs that he was suffering from a drug overdose. He testified that the defendant denied
ingesting anything.

       On cross-examination, Dr. Kleuser agreed that he did not recall treating the defendant
and that his testimony was based upon the defendant’s medical records. He agreed that if the
defendant were to ingest drugs contained in a plastic bag, the bag could prevent the drugs
from entering the defendant’s system.

       At the conclusion of the proof, the jury found the defendant guilty of tampering with

                                               5
evidence and resisting arrest. The trial court sentenced the defendant to twelve years’
incarceration for tampering with evidence and six months’ incarceration for resisting arrest.
The defendant filed a motion for new trial, which the trial court denied. He timely filed this
appeal, in which he challenges only the sufficiency of the evidence regarding his conviction
for tampering with evidence.

                                          II. Analysis

                                 Sufficiency of the Evidence

       The defendant contends that the evidence is insufficient to support his conviction for
tampering with evidence. Specifically, he argues that Detectives Donaldson and Shoesmith
did not identify themselves as police officers and that he was unaware of the presence of the
uniformed takedown team when he allegedly swallowed the item.

         When a defendant challenges the sufficiency of the evidence, the relevant question
for this court is “whether, after reviewing the evidence in the light most favorable to the
State, 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). On appeal, “‘the State
is entitled to the strongest legitimate view of the evidence and to all reasonable and legitimate
inferences that may be drawn therefrom.’” State v. Elkins, 102 S.W.3d 578, 581 (Tenn.
2003) (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Therefore, this court will
not re-weigh or reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn.
Crim. App. 1990). Instead, it is the trier of fact, not this court, who resolves any questions
concerning “the credibility of witnesses, the weight and value to be given the evidence, as
well as all factual issues raised by the evidence.” State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997). A guilty verdict removes the presumption of innocence and replaces it with a
presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). The burden is then
shifted to the defendant on appeal to demonstrate why the evidence is insufficient to support
the conviction. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This court applies the
same standard of review regardless of whether the conviction was predicated on direct or
circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

       Tennessee Code Annotated section 39-16-503(a)(1) (2010) provides that “[i]t is
unlawful for any person, knowing that an investigation or official proceeding is pending or
in progress, to . . . [a]lter, destroy, or conceal any record, document, or thing with intent to
impair its verity, legibility, or availability as evidence in the investigation or official
proceeding[.]” In order to obtain a conviction for tampering with evidence, the State must
prove “three elements beyond a reasonable doubt—‘timing, action, and intent.’” State v.
Hawkins, 406 S.W.3d 121, 132 (Tenn. 2013) (quoting State v. Gonzales, 2000 UT App. 136,

                                               6
¶ 11, 2 P.3d 954, 957) (Utah App. 2000)). The “timing” element requires the State to prove
that the defendant acted after forming a belief that an investigation or proceeding was
pending or in progress. Hawkins, 406 S.W.3d at 132. “The ‘action’ element requires
alteration, destruction, or concealment.” Id. The “intent” element requires that the defendant
intend for his actions “to hinder the investigation or official proceeding by impairing the
record’s, document’s, or thing’s ‘verity, legibility, or availability as evidence.” Id.

        Viewed in the light most favorable to the State, the evidence shows that the defendant
got into a vehicle with Detectives Donaldson and Shoesmith in order to acquire crack cocaine
for them. After returning with “a bag of crack,” the defendant gave Detective Donaldson a
portion of the substance and kept the remainder for himself. Once he received the drugs,
Detective Donaldson gave the takedown signal, and officers began to approach the vehicle
with their lights and sirens activated. Detective Donaldson testified that the defendant, upon
seeing the blue lights, exclaimed, “[I]t’s the vice, it’s the vice.” Detective Donaldson then
turned toward the backseat and witnessed the defendant attempting to ingest the remainder
of the drugs. Detective Shoesmith also testified that the defendant attempted to place the
“baggy” containing drugs into his mouth as the takedown team began to approach the
vehicle. She stated that he refused to exit the vehicle or give his hands to the officers.
Detective Loucks testified that when he arrived at the vehicle, he did so with his lights and
sirens activated while wearing a jacket with several patches identifying him as a Metro Police
officer. He witnessed the defendant with his right hand around his mouth, and Detective
Donaldson advised him that the defendant had attempted to ingest the remaining drugs. After
identifying himself as a police officer, Detective Loucks ordered the defendant “to spit it
out.” The defendant kept his right hand “locked” over his mouth for about thirty seconds
before Detective Loucks was able to remove it. The “baggy” containing the substance was
not recovered at the scene or from the defendant’s person.

        After placing the defendant into custody, Detectives Donaldson and Loucks field-
tested the substance Detective Donaldson received from the defendant, and it tested positive
for cocaine base. Special Agent Patterson confirmed that the substance she received from
Detectives Donaldson, Loucks, and McDugle tested positive for cocaine base. Dr. Kleuser
testified that the defendant was not exhibiting the symptoms of a drug overdose at the
hospital, but he agreed that the defendant’s habitual use of cocaine could have increased the
defendant’s tolerance level of the drug and that the plastic bag could have prevented the drug
from entering the defendant’s bloodstream. We conclude that the evidence was sufficient
for a rational jury to find that the defendant, after seeing the blue lights and sirens and
members of the takedown team approaching, swallowed the substance in an attempt to impair
its availability as evidence in the drug investigation. See T.C.A. § 39-16-503(a)(1).
Accordingly, the defendant is not entitled to relief as to this issue.



                                              7
                              III. Conclusion

For the above-stated reasons, we affirm the judgment of the trial court.




                                          _________________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




                                      8
