             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                         October 7, 2008 Session

               STATE OF TENNESSEE v. CURTIS LEE MAJORS
                        Appeal from the Criminal Court for Davidson County
                          No. 2006-D-3084 Cheryl A. Blackburn, Judge



                         No. M2007-01911-CCA-R3-CD - Filed May 21, 2009




The Davidson County Grand Jury indicted the defendant, Curtis Lee Majors, on one count of
possession with intent to sell or deliver less than 0.5 grams of cocaine within 1000 feet of a school,
a Class B felony, and one count of tampering with evidence, a Class C felony. After a jury trial, the
defendant was convicted of the lesser included offense of misdemeanor possession of cocaine, a
Class A misdemeanor.1 The jury also convicted the defendant of evidence tampering as charged in
Count 2 of the indictment. The trial court sentenced the defendant to fifteen years in the Department
of Correction as a Range III, persistent offender. On appeal, the defendant contends that: (1) the
evidence was insufficient to sustain his conviction for tampering with evidence; (2) the trial court
gave an erroneous jury instruction regarding tampering with evidence; and (3) the trial court refused
to apply one of the mitigating factors proposed by the defendant at his sentencing hearing. After
reviewing the record, we affirm the judgment of the trial court.


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


D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN , J.,
joined. JAMES CURWOOD WITT , JR., J., filed a dissenting opinion.

J. David Wicker, Jr., Nashville, Tennessee, for the appellant, Curtis Lee Majors.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Robert E. McGuire, Assistant District
Attorney General, for the appellee, State of Tennessee.


         1
         The trial court sentenced the defendant to eleven months and twenty-nine days, with the sentence to be served
concurrently with the sentence resulting from the evidence tampering conviction. The defendant does not challenge the
misdemeanor conviction or length of sentence on appeal.
                                                       OPINION


        On the evening of October 12, 2005, seven officers with the Metropolitan Nashville Police
Department executed a search warrant for an apartment at 621 Charles E. Davis Boulevard in
Nashville. Officer William Traughber testified that he was the first of the officers to enter the
apartment. He noted that all of the officers at the apartment that evening were wearing “raid vests”
that were emblazoned with the department’s logo, the officer’s badge, and the word “police.” He
said that as the officers approached the apartment, the door opened and a man exited through the
door. Officer Traughber arrested this person, and as he did, he looked up the stairs and saw the
defendant sitting at a table in the apartment’s kitchen. He said that as he was detaining the person
at the front door, he looked up the stairs and saw the defendant run from the kitchen table and
disappear from view. Officer Traughber testified that he and the other officers executing the search
warrant yelled out “police” and “search warrant” upon entering the apartment, although he gave
inconsistent testimony as to whether he arrested the man at the front door before or after the police
announced their presence. However, he insisted that the defendant “absolutely saw us and heard us
scream police” before his arrest.

         Officer Traughber said that after the defendant disappeared from his view, he heard a toilet
flush; when asked to elaborate on the amount of time that elapsed between the defendant’s
disappearance and the toilet flushing, the officer said that the two events were “instantaneous.” He
said that two officers, Ron Black and Tim Szymanski, arrested the defendant in the apartment’s
bathroom, which he surmised was fifteen to twenty feet from the kitchen. Officer Traughber said
that he arrived in the bathroom about the time the other two officers arrested the defendant. As
Officer Traughber arrived in the bathroom, the commode’s tank “was still filling up where it had just
been flushed,” and “water [was] splattered on the seat.” He noted that the defendant’s clothes were
still on.

         Officer Traughber said that in the kitchen, he found digital scales and a white powder that
field tested as cocaine. The officer collected this evidence, which was sent to the Tennessee Bureau
of Investigation (TBI) crime lab for additional testing.2 After Officer Traughber advised the
defendant of his Miranda rights and the defendant waived those rights, the defendant admitted that
the cocaine found on the kitchen table was his and that he regularly snorted cocaine. Officer
Traughber said that given his experience with suspects attempting to flush narcotics down the toilet,
he asked the defendant “what did he flush.” The defendant did not answer the officer’s question;
instead, Officer Traughber said that “[the defendant] said: I snort. Repeatedly. He was referring to
the powder cocaine, I guess, on the kitchen table.”



           2
               TBI Agent John Scott testified that the white powder collected from the kitchen table was 0.04 grams of
cocaine.

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       On cross-examination, Officer Traughber said that he did not find any cocaine residue or drug
paraphernalia inside or around the toilet. He also said that no drugs or drug paraphernalia were
found on the defendant’s person. He acknowledged that no attempt was made “to see if . . . any type
of evidence” had gotten “lodged” in the toilet. Furthermore, the officer acknowledged that at the
preliminary hearing in this case, he had testified that he did not see the defendant sitting at the
kitchen table before his arrest.

        Metropolitan Nashville Police Officer Ron Black testified that after he entered the apartment,
he heard a “commotion,” so he went upstairs. Once Officer Black arrived upstairs, he found the
defendant “[j]ust coming out” of the bathroom by himself. He said that the door to the bathroom was
open when he arrived. He said that the toilet “just got done flush[ing], water was still spraying,” and
the defendant was not in any “state of undress.” Officer Black acknowledged that he did not see the
defendant until he arrested him in the bathroom and that the defendant said nothing to him. On
cross-examination, Officer Black acknowledged that he did not find any drugs or drug paraphernalia
in or on the toilet or elsewhere in the restroom. He also acknowledged that he did not search the
defendant after his arrest and that before his arrest, he only focused on whether the defendant was
carrying a weapon, which he was not.

        Metropolitan Nashville Police Lieutenant William Mackall, who was accepted as an expert
in narcotics investigations, also testified that in his experience, suspects in narcotics investigations
sometimes attempt to flush narcotics down the toilet in an attempt to destroy evidence. He said that
in his experience, he was never able to recover powder cocaine from a toilet because the cocaine
would dissolve when introduced to water. The only way the police would be able to recover cocaine
were if it had “been left on the rim of the toilet seat.”

       The jury convicted the defendant of misdemeanor cocaine possession, a lesser included
offense of the indicted offense of possession with intent to sell or deliver less than 0.5 grams of
cocaine within 1000 feet of a school. The jury also convicted the defendant of tampering with
evidence as charged in the indictment. The defendant subsequently filed a timely notice of appeal.

                                             ANALYSIS

                                       Sufficiency of Evidence

         The defendant first contends that the evidence produced at trial was insufficient to sustain
his conviction for tampering with evidence. An appellate court’s standard of review when the
defendant questions the sufficiency of the evidence on appeal 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)
(emphasis in original). The appellate court does not reweigh the evidence; rather, it presumes that
the jury has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in
testimony, and the weight and value to be given to evidence were resolved by the jury. State v.

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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, and on appeal the defendant has the burden of illustrating
why the evidence is insufficient to support the jury’s verdict. Id.; State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). A conviction may be sustained solely upon circumstantial evidence, but in such
instances the facts and circumstances “must be so strong and cogent as to exclude every other
reasonable hypothesis save the guilt of the defendant, and that beyond a reasonable doubt.” State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State v. Crawford, 225 Tenn. 478, 470
S.W.2d 610, 612 (1971)).

        As relevant to this case, Tennessee law states that it 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 . . . .” Tenn. Code Ann. § 39-16-503(a)(1)
(2006). The defendant argues both that he was unaware that an investigation or official proceeding
was in progress and that the proof did not establish beyond a reasonable doubt that he altered,
destroyed, or concealed any “thing.”

        The defendant’s assertion that he was unaware of a “pending or in progress” investigation
is based upon his contention that the police violated the “knock and announce” rule in entering the
apartment. This court has noted that the rule, established in common law and examined in great
detail by the United States Supreme Court, requires that “a law enforcement officer who is charged
with the execution of a search warrant must give: (1) notice of his authority; and (2) the purpose of
his presence at the structure to be searched.” State v. Perry, 178 S.W.3d 739, 745 (Tenn. Crim. App.
2005) (citations omitted). The Supreme Court has held that the knock and announce rule is a factor
to consider in determining the reasonableness of a search or seizure under the Fourth Amendment.
Wilson v. Arkansas, 514 U.S. 927, 934 (1995). Exceptions to the rule exist, such as instances in
which the police would be threatened with physical violence, instances where there is reason to
believe that evidence would likely be destroyed, or where knocking and announcing would be
“futile.” Hudson v. Michigan, 547 U.S. 586, 589-90 (2006) (citations omitted).

        The defendant’s reliance on the knock and announce rule is unavailing to him. In most
instances, especially post-Wilson, the rule is cited when arguing that evidence was seized in
contravention of the Fourth Amendment. In this case, the defendant did not file a Fourth
Amendment-based motion to suppress evidence based upon a violation of the knock and announce
rule. Furthermore, several federal circuit courts have held that police entry through an open door
does not violate the knock and announce rule. See United States v. Williams, 351 F.2d 475, 477 (6th
Cir. 1962); see also United States v. Remigio, 767 F.2d 730, 732-33 (10th Cir. 1985) (reaching same
conclusion; cites to Williams and cases from five other federal circuits in support of conclusion).
Irrespective of the knock and announce issue, the evidence established that the officers who entered
the apartment were wearing vests that identified them as police officers, the defendant saw the police
before running from the kitchen, and the officers yelled out “police” and “search warrant” before
they pursued and arrested the defendant. We therefore conclude that the defendant was aware of an
investigation or proceeding against him for purposes of the evidence tampering statute.


                                                  4
         In addressing the “alter, destroy or conceal” element of the offense, we first note that this
court has affirmed a defendant’s evidence tampering conviction based upon a defendant’s flushing
drugs down a toilet where none of the testifying witnesses saw the defendant place drugs in the toilet.
See State v. Logan, 973 S.W.2d 279, 282 (Tenn. Crim. App. 1998). However, as the defendant notes
in his brief, the facts of the present case can be distinguished from those of Logan. In Logan, police
officers found the defendant sitting on a toilet; after the defendant was removed from the toilet, the
police found “sixteen small [plastic] bags containing white powder” inside the toilet. Id. at 280. The
police also found a “larger [plastic] bag floating in the toilet.” Id. Furthermore, “while the defendant
was being handcuffed, the defendant admitted that all of the cocaine in the toilet was his.” Id. In
this case, Officers Traughber and Black did not find any cocaine or drug paraphernalia in or around
the toilet or elsewhere in the restroom. The police did not find any drugs or drug paraphernalia on
the defendant’s person, and the officers did not testify that they saw the defendant carrying drugs or
drug paraphernalia from the kitchen to the restroom. Additionally, the defendant did not admit to
placing any drugs or drug paraphernalia inside the toilet; when asked if he put anything inside the
toilet, the defendant replied only that he snorted cocaine.

        Despite the differences between the instant case and Logan, we still conclude that the
evidence produced at trial supported the jury’s finding that the defendant altered or destroyed
evidence. Officer Traughber testified that when the officers entered the apartment, the defendant
quickly got up from the kitchen table, at which powder cocaine was found, and ran from view.
Officer Traughber said that he then heard a toilet flush, an event which was “instantaneous” with the
defendant’s disappearing from view. Officer Black testified that he arrested the defendant as he was
exiting the bathroom; he said that as he arrived at the bathroom, the toilet had just finished flushing.
Both officers testified that the defendant was not in any state of undress and that the toilet seat was
covered with water. While Officer Traughber said that he did not reach the bathroom until after the
defendant had been arrested, he said that the toilet’s tank was still filling with water when he arrived,
which further supports the conclusion that very little time passed between the defendant’s running
from the kitchen table and his arrest. While the officers were unable to find any cocaine residue on
or in the toilet, Lieutenant Mackall testified that this occurrence was common, given that powder
cocaine dissolves in water. Furthermore, when Officer Traughber asked the defendant what he
flushed down the toilet, the defendant did not tell the officers that he was using the restroom when
the officers found him; rather, he repeatedly told the officers, “I snort.” While the evidence of the
defendant’s guilt was entirely circumstantial, we conclude that the entirety of the evidence was so
cogent as to exclude every reasonable theory other than the one the jury adopted through its guilty
verdict—that the defendant altered or destroyed cocaine by flushing it down the toilet. The
defendant is therefore denied relief on this issue.

                                           Jury Instructions

        The trial court instructed the jury on the offense of tampering with evidence as follows:

                For you to find the defendant guilty of this offense the State must have proven
        beyond a reasonable doubt the existence of the following essential elements: (1) that
        the defendant knew an investigation or official proceeding was pending or in progress

                                                   5
        and (2) that the defendant altered, destroyed, or concealed any record with intent to
        impair its viredity [sic], legibility, or availability as evidence in the investigation or
        official proceeding. And it also needs to be record or any thing. It should be thing.
        And I think it’s also any document. I’m going to change this.

        The defendant argues that the trial court’s jury instruction incorrectly stated the law because
“[i]t did not denote a [specific] ‘record, document, or thing’ as dictated by” the corresponding
Pattern Jury Instruction, and because the language of the jury instruction “did not reflect the language
as submitted by the [S]tate in the indictment.” The defendant also argues that the trial court “did not
identify which portion of the charge it intended to correct and a corrected version of the jury charge
was never read into the record.” The State argues that the trial court’s jury instruction provided the
jury with a complete and accurate charge of the law as related to Count 2 of the indictment. We
agree with the State.

        In criminal cases, a defendant has the right to a correct and complete charge of the law. State
v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). The material elements of the charged offense should
be described and defined in connection with that offense. State v. Ducker, 27 S.W.3d 889, 899
(Tenn. 2000); State v. Cravens, 764 S.W.2d 754, 756 (Tenn. 1989). The failure to do so deprives
the defendant of the constitutional right to a jury trial and subjects the erroneous jury instruction to
harmless error analysis. Garrison, 40 S.W.3d at 433-34. A jury instruction, however, must be
reviewed in its entirety and read as a whole rather than in isolation. State v. Leach, 148 S.W.3d 42,
58 (Tenn. 2004). “An instruction should be considered prejudicially erroneous only if the jury
charge, when read as a whole, fails to fairly submit the legal issues or misleads the jury as to the
applicable law.” State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005) (citing State v. Vann, 976
S.W.2d 93, 101 (Tenn. 1998)).

         In this case, the jury instructions provided by the trial court essentially restated the statutory
language of Tennessee Code Annotated section 39-16-503,which provides that it 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 . . . .” While the defendant
correctly states that Tennessee Pattern Jury Instruction (Criminal) 26.03 “provides that the term
‘record, document, or thing’ is to be altered based upon the charge and/or evidence before the
[c]ourt,” and that the pattern instructions provide for the record, document, or thing to be specifically
identified, our supreme court has stated that “[t]here is no requirement limiting a trial court to the
use of ‘pattern instructions.’” State v. West, 844 S.W.2d 144, 151 (Tenn. 1992). The trial court’s
instruction correctly instructed the jury as to the essential elements of tampering with evidence, and
based on the instruction the jury could have reasonably determined exactly what constituted a
“record, document, or thing” for purposes of the offense.

       Furthermore, the defendant’s contention that the jury instruction did not comport with the
language of the indictment is without merit. Count 2 of the indictment, which charged the defendant
with tampering with evidence, alleged that the defendant, “knowing that an investigation or official
proceeding was pending, or in progress, did intentionally or knowingly alter, destroy, or conceal any

                                                    6
record, document, or thing with intent to impair its verity, legibility, or availability as evidence in
the investigation or official proceeding . . . .” The trial court’s amended instruction essentially
restated the language of the indictment. Accordingly, the defendant is denied relief on this issue.

                                             Sentencing

         At the defendant’s sentencing hearing, the trial court imposed two sentencing enhancement
factors: “The defendant has a previous history of criminal convictions or criminal behavior, in
addition to those necessary to establish the appropriate range”, and that the defendant was released
on parole at the time he committed these offenses. Tenn. Code Ann. § 40-35-114(1), (13)(B) (2006).
The trial court applied one mitigating factor: “The defendant’s criminal conduct neither caused nor
threatened serious bodily injury.” Id. § 40-35-113(1). The trial court gave “very great weight” to
the enhancement factors but did not address the amount of weight it gave to the mitigating factor.
The trial court sentenced him to fifteen years for the evidence tampering conviction, the maximum
term for a defendant convicted of a Class C felony as a Range III offender. See Id. § 40-35-112(c)(3)
(sentence range of ten to fifteen years). On appeal, the defendant argues that the trial court erred by
giving no weight to the mitigating factor and by not explaining why it weighed the mitigating factor
as it did.

         An appellate court’s review of sentencing is de novo on the record with a presumption that
the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-401(d). As the Sentencing
Commission Comments to this section note, on appeal the burden is on the defendant to show that
the sentence is improper. This means that if the trial court followed the statutory sentencing
procedure, made findings of fact that are adequately supported in the record, and gave due
consideration and proper weight to the factors and principles that are relevant to sentencing under
the 1989 Sentencing Act, the court may not disturb the sentence even if a different result were
preferred. State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

        However, “the presumption of correctness which accompanies the trial court’s action 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). In this respect, for the purpose of meaningful appellate review,

       [T]he trial court must place on the record its reasons for arriving at the final
       sentencing decision, identify the mitigating and enhancement factors found, state the
       specific facts supporting each enhancement factor found, and articulate how the
       mitigating and enhancement factors have been evaluated and balanced in determining
       the sentence.

State v. Jones, 883 S.W.2d 597, 599 (Tenn. 1994) (citation omitted); see Tenn. Code Ann. § 40-35-
210(e).

       Tennessee’s sentencing act provides:


                                                  7
       (c) The court shall impose a sentence within the range of punishment, determined by
       whether the defendant is a mitigated, standard, persistent, career, or repeat violent
       offender. In imposing a specific sentence within the range of punishment, the court
       shall consider, but is not bound by, the following advisory sentencing guidelines:

               (1) The minimum sentence within the range of punishment is the
               sentence that should be imposed, because the general assembly set the
               minimum length of sentence for each felony class to reflect the
               relative seriousness of each criminal offense in the felony
               classifications; and
               (2) The sentence length within the range should be adjusted, as
               appropriate, by the presence or absence of mitigating and
               enhancement factors set out in §§ 40-35-113 and 40-35-114.

Tenn. Code Ann. § 40-35-210(c)(1)-(2).

        The weight to be afforded an enhancement or mitigating factor is left to the trial court’s
discretion so long as its use complies with the purposes and principles of the 1989 Sentencing Act
and the court’s findings are adequately supported by the record. Id. § (d)-(f); State v. Carter, 254
S.W.3d 335, 342-43 (Tenn. 2008). “An appellate court is therefore bound by a trial court’s decision
as to the length of the sentence imposed so long as it is imposed in a manner consistent with the
purposes and principles set out in . . . the Sentencing Act.” Carter, 254 S.W.3d at 346. Accordingly,
on appeal we may only review whether the enhancement and mitigating factors were supported by
the record and their application was not otherwise barred by statute. See id.

        In imposing a sentence, the trial court may only consider enhancement factors that are
“appropriate for the offense” and “not already . . . essential element[s] of the offense.” Tenn. Code
Ann. § 40-35-114. These limitations exclude enhancement factors “based on facts which are used
to prove the offense” or “[f]acts which establish the elements of the offense charged.” Jones, 883
S.W.2d at 601. Our supreme court has stated that “[t]he purpose of the limitations is to avoid
enhancing the length of sentences based on factors the legislature took into consideration when
establishing the range of punishment for the offense.” State v. Poole, 945 S.W.2d 93, 98 (Tenn.
1997); Jones, 883 S.W.2d at 601.

        In conducting its de novo review, the appellate court must consider (1) the evidence, if any,
received at the trial and sentencing hearing, (2) the presentence report, (3) the principles of
sentencing and arguments as to sentencing alternatives, (4) the nature and characteristics of the
criminal conduct, (5) any mitigating or statutory enhancement factors, (6) any statement that the
defendant made on his own behalf, (7) the defendant’s potential for rehabilitation or treatment, and
(8) any statistical information provided by the Administrative Office of the Courts as to sentencing
practices for similar offenses in Tennessee. Tenn. Code Ann. §§ 40-35-102, -103, -210; see also
Ashby, 823 S.W.2d at 168; State v. Moss, 727 S.W.2d 229, 236-37 (Tenn. 1986).

       In this case, the trial court gave “very great weight” to the two enhancement factors it applied,

                                                  8
and on appeal the defendant neither challenges the enhancement factors’ applicability or the weight
afforded them to the trial court. While the trial court did not make a specific on-the-record finding
as to the weight it gave the mitigating factor, given that the trial court imposed the maximum
sentence, it is readily apparent from the record that the trial court gave the mitigating factor little to
no weight. Under the revised sentencing act, this court may not review the weight afforded the
sentencing and mitigating factors provided the trial court followed the principles of sentencing.
Given that the enhancement factors were supported by the record and the trial court considered the
mitigating factors as required, we conclude that the trial court followed the appropriate sentencing
principles in this case. We therefore affirm the defendant’s fifteen-year sentence for his evidence
tampering conviction.

                                            CONCLUSION


        Upon consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.


                                                                 ______________________________
                                                                 D. KELLY THOMAS, JR., JUDGE




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