        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  July 15, 2015 Session

          STATE OF TENNESSEE v. ADRIAN MARCEL NEWBILL

                   Appeal from the Circuit Court for Marshall County
               No. 59CC1-2013-CR-139 Franklin Lee Russell, Judge


               No. M2014-01120-CCA-R3-CD – Filed October 7, 2015



The defendant, Adrian Marcel Newbill, was convicted by a Marshall County Circuit
Court jury of the possession of 26 grams or more of cocaine, a Schedule II controlled
substance, with the intent to sell/deliver, a Class B felony, and was sentenced by the trial
court as a Range I, standard offender to twelve years in the Department of Correction.
The defendant raises two issues on appeal: (1) whether the evidence is sufficient to
sustain his conviction, and (2) whether the trial court imposed an excessive sentence.
Following our review, we affirm the judgment of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and NORMA MCGEE OGLE, JJ., joined.

Michael Meise, Dickson, Tennessee (on appeal); and James Ronald Tucker, Shelbyville,
Tennessee (at trial and on appeal), for the appellant, Adrian Marcel Newbill.

Herbert H. Slatery III, Attorney General and Reporter; Michael M. Stahl, Assistant
Attorney General; Robert Carter, District Attorney General; and Weakley E. Barnard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       On August 26, 2013, officers with the 17th Judicial District Drug Task Force used
a confidential informant to set up a controlled buy of crack cocaine from Laura Carter,
who was traveling in the backseat of a small SUV driven by the defendant with a third
person, Shawn Cross, riding as the front seat passenger. When the SUV failed to stop at
the Lewisburg KFC where Ms. Carter had arranged for the sale to take place, officers
stopped and searched the vehicle and its occupants, finding a bag of crack cocaine on Ms.
Carter’s person, two additional bags of crack cocaine and some pills underneath the
driver’s seat, and a crack pipe between the driver’s seat and the center console. The
defendant, Ms. Carter, and Mr. Cross were subsequently indicted by the Marshall County
Grand Jury for possession of twenty-six or more grams of cocaine with the intent to sell
and possession of twenty-six or more grams of cocaine with the intent to deliver. On
February 18, 2014, the defendant proceeded to trial alone before a Marshall County
Circuit Court jury.

       Winchester Police Officer Chris Smith, a former agent with the 17th Judicial
District Drug Task Force, testified that he participated in the August 26, 2013 undercover
drug transaction by posing as the brother of the confidential informant who was arranging
a controlled buy of one ounce of crack cocaine from Laura Carter. The informant and
Ms. Carter’s initial phone call, which took place on speaker phone at the home of the
informant, consisted of a discussion of Ms. Carter’s “capability of getting the . . . ounce
of cocaine.” Officer Smith testified that Ms. Carter told the informant that she would
have to call “her boy” and would call back to let him know if the deal “would be good to
go.” She called back, told the informant that “her boy, Tony,” had what they needed, that
the price was $1,400 for one ounce of crack cocaine, and that she would call them back
when they were “on their way from Columbia to . . . Lewisburg.” Officer Smith
subsequently learned that “Tony” was Shawn Cross.

        Officer Smith testified that Ms. Carter called about thirty minutes later to say that
they were en route to Lewisburg and then called again when she was closer to town to
say that Mr. Cross wanted to talk to the informant. During these conversations, she
mentioned that “A.D.,” later identified as the defendant, was driving and that the vehicle
they were traveling in was a gray SUV. Officer Smith said that when Mr. Cross spoke
with the informant, he reiterated that the price was $1,400 and asked about Officer
Smith’s presence in the informant’s vehicle. Officer Smith testified that the informant
reassured Mr. Cross that Officer Smith was the informant’s brother and told him that he
was there to prevent the informant from getting “burnt” in the transaction by ensuring
that “it’s what it’s supposed to be.” During that conversation, Mr. Cross agreed to the
informant’s suggestion that the transaction take place in the parking lot of the Lewisburg
Walmart.

         Officer Smith testified that he notified the surveillance team of the location and
started with the informant toward Walmart. While they were en route, Ms. Carter called
to tell them that Mr. Cross wanted to change the location to the KFC, located at the other
end of the parking lot from Walmart. Officer Smith said he radioed his team of the
change, and he and the informant continued toward the area. As they were about to turn
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into the parking lot, the informant received a call from Ms. Carter from a different phone
number, informing them that she was at the KFC and that they should come pick her up.

       Officer Smith testified that he and the informant were pulling into a parking spot
at the KFC when he looked to his left and saw a small, silver Mercedes SUV with “two
black males and a female, looking over at [them],” pulling out of the parking lot and
heading down Highway 50 toward Columbia. He informed Lieutenant Daugherty and
then went inside the KFC, where he learned from the manager that a female had used the
restaurant phone and the women’s restroom. Officer Smith said he checked the phone,
which was the same number as the one used by Ms. Carter to call the informant. He also
searched the restroom but found no evidence of any narcotics. On cross-examination, he
acknowledged that the informant never spoke with the defendant.

        Captain Bartley Paul Fagan of the Marshall County Sheriff’s Department testified
that he assisted in the Drug Task Force’s August 26, 2013 drug investigation by
following and stopping a small, silver Mercedes SUV that came out of the Walmart
parking lot and turned onto Highway 50 headed toward Columbia. Two African-
American men were in the front seat of the vehicle, and a Caucasian woman was seated
behind the driver in the backseat of the vehicle. When he approached the driver, later
identified as the defendant, and asked for his license, the defendant handed him a
Kentucky identification card instead. The Drug Task Force officers arrived at about that
time, and he handed the defendant’s identification to Lieutenant Daugherty before turning
his attention to the front seat passenger, Shawn Cross, who initially gave him a false
name and social security number. Captain Fagan testified that Mr. Cross was wanted in
Maury County on drug charges and a parole violation. On cross-examination, he
acknowledged that the defendant immediately pulled over when he activated his lights.

        Lieutenant Shane Daugherty of the 17th Judicial District Drug Task Force testified
that he was present with Officer Smith at the home of the citizen informant when the
informant made a recorded telephone call to Ms. Carter to set up the drug transaction.
According to Lieutenant Daugherty, Ms. Carter was going to get a ride and bring her
supplier with her to Lewisburg to sell one ounce of crack cocaine to the informant and
Officer Smith, who was posing as the informant’s brother. Lieutenant Daugherty
testified that he assigned duties to the officers involved, including Agent Martin and
Lieutenant Doley, who were the first to leave to set up surveillance in the Walmart
parking lot where the transaction was supposed to occur. Before Officer Smith and the
informant reached the location, however, Lieutenant Doley informed them that he had
pulled up next to the suspect vehicle and believed that “surveillance had gotten burned[.]”
Lieutenant Daugherty explained that Lieutenant Doley was driving a vehicle that had
been seized from a Maury County crack dealer, which would have been “very well
known” to individuals involved in the Maury County drug trade.
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        Lieutenant Daugherty testified that he and Assistant Director Miller arrived at the
location in time to see the Mercedes SUV pull into the KFC parking lot, drive around one
side of the building as Officer Smith and the informant were on the other side, and then
exit the parking lot and turn right toward Highway 50. He said he first instructed Captain
Fagan to follow the Mercedes SUV and then instructed him to stop it after Officer Smith
had searched the KFC bathroom and reported that neither Ms. Carter nor any narcotics
were inside.

       Lieutenant Daugherty testified that when he went to the location of the traffic stop,
he observed the defendant seated in the driver’s seat, Shawn Cross seated in the front
passenger seat, and Laura Carter seated in the backseat behind the defendant. Among the
items recovered from the vehicle and its occupants were a “big rock of crack cocaine in a
plastic bag,” from Ms. Carter’s crotch area, two small bags of cocaine and a clear bag
containing white pills from underneath the back side of the driver’s seat of the vehicle, a
crack pipe from the area between the driver’s seat and the center console, and a
Blackberry cell phone from the defendant’s person.

        Lieutenant Daugherty testified that he was interviewing the defendant at the jail
when the defendant’s phone vibrated. He said he picked it up and read the following text
message, which he photographed: “Man this Kristi tell him need forty and thirty.” Earlier
in his testimony, Lieutenant Daugherty explained that someone stating that he wanted
“thirty” was drug lingo meaning that the person wanted $30 worth of cocaine. He
testified that, during the interview, the defendant told him that he was a crack addict, that
the crack pipe found in the vehicle was his, and “that he would give Mr. Cross rides to
different customers’ houses in Columbia in exchange for crack cocaine.” Lieutenant
Daugherty identified the defendant’s written and signed statement, which he read to the
jury and which was admitted as an exhibit:

               Shawn Cross called me to come pick him up at gas station (Spur)
       downtown. Laura showed up with her family. Shawn Cross gave me $10
       to give to Laura as gas money for her ride to the Spur. Shawn Cross tells
       me to head to Lewisburg. Laura asked to use my phone to call person(s)
       who she & Shawn Cross were going to meet in Lewisburg. Heard Laura
       quote a price of $1,400.00 to person she was talking to name Jeff. Laura
       hands Shawn my phone to also talk to Jeff. Heard Shawn arrange to meet
       Jeff at KFC. Once at KFC, I drop Laura off at KFC. Me & Shawn Cross
       then drove around the area. While driving around area we saw Bill Dorelle
       (MCSO). Shawn told me to go pick up Laura at KFC, which I did. As we
       where [sic] headed out Hwy 50 we got stopped by Law Enforcement.
       Upon seeing the blue lights, I heard Shawn Cross say to Laura, “Here hold
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      this,” however I did not see an exchange of items. I did see a baggie in
      Shawn’s hands. I did know that Shawn was wanted by MCSO on drug
      related crimes. I also heard Laura talking to Shawn about getting her 20%
      for selling the cocaine for Shawn Cross.

       On cross-examination, Lieutenant Daugherty acknowledged that the defendant
never specifically stated that he drove Mr. Cross around Columbia to help him get to his
drug transactions but instead said merely that he would give Mr. Cross a ride to different
locations in Columbia in exchange for crack cocaine.

        Agent Rebecca Hernandez of the Tennessee Bureau of Investigation, the forensic
chemist who analyzed the three samples submitted in the case, testified that all three
consisted of a substance containing cocaine base. The first sample, recovered from Ms.
Carter, weighed 23.10 grams, the second sample, recovered from the backseat, weighed
.43 grams, and the third sample, also recovered from the backseat, weighed 3.40 grams,
for a total of 26.93 grams.

       Director Timothy Lane of the 17th Judicial District Drug Task Force testified that
twenty-six grams of crack cocaine would contain up to 125 individual “dosage units.” In
his vast experience, he had never seen anyone in possession of that amount of the drug
who “wasn’t involved in distributing crack cocaine.”

      The defendant, who acknowledged he was a crack user, testified that he had
become friends with Mr. Cross the previous year and regularly drove him on errands
around Columbia in exchange for crack cocaine or a small amount of cash. As time went
by, he became aware of Mr. Cross’s “dealings with the police in Maury County” and
made it clear to him that he did not want Mr. Cross to have any drugs in his vehicle. The
defendant said that Mr. Cross respected his wishes and that he was never a party to any of
Mr. Cross’s drug dealings.

       On the day in question, Mr. Cross asked the defendant to pick him up at the Spur
gas station and take him to Lewisburg so that Mr. Cross could pay his girlfriend’s rent.
The defendant said that he asked Mr. Cross for $25 in exchange for the trip. On cross-
examination, he added that about five minutes after he picked up Mr. Cross, Ms. Carter
got into the vehicle at the station too, telling him that she was going to meet someone in
Lewisburg. The defendant said that Mr. Cross gave him $10 to give to the people who
had dropped off Ms. Carter to pay for their gas.

      The defendant testified that during the drive to Lewisburg, the radio was playing
and he was arguing with his wife on his cell phone, which Mr. Cross had given him three
days earlier after he broke his own phone. Consequently, he was not paying much
                                            5
attention to Mr. Cross and Ms. Carter’s conversation in the vehicle. He recalled hearing
Ms. Carter mention something about $1,400 about ten to twelve minutes into the drive
and heard her say something about “20 percent” just before they reached Lewisburg, but
he had no idea what she was talking about. The defendant testified that the first time he
realized something was wrong was when Ms. Carter handed the phone to Mr. Cross as
they were pulling up to the KFC and the “terminology [Mr. Cross was using] changed.”

        On cross-examination, the defendant denied that he was a drug dealer or knew
anything about the August 26 drug transaction until he pulled into the Walmart parking
lot. He said he never suspected that Mr. Cross was conducting drug deals during the 100
or so times he gave him rides over the past year, despite the fact that Mr. Cross’s visits at
each residence lasted only “15, 20 minutes, tops.” He also did not find it suspicious that
Ms. Carter accompanied them on their trip to Lewisburg or that Mr. Cross gave her $10
for gas. The defendant acknowledged he had a conviction in Michigan for stealing and
retaining without consent property belonging to another, four theft by deception
convictions in Kentucky, and a robbery in the second degree conviction in Kentucky.

       Following deliberations, the jury found the defendant guilty of both counts as
charged in the indictment. The trial court merged the possession with the intent to deliver
conviction into the possession with intent to sell conviction and sentenced the defendant
as a Range I, standard offender to the maximum term of twelve years at thirty percent in
the Department of Correction. This appeal followed.

                                       ANALYSIS

                                I. Sufficiency of the Evidence

       The defendant contends that the evidence is insufficient to sustain his conviction,
arguing that the State failed to establish that he knowingly delivered or sold a controlled
substance. In support, he cites his own testimony in which he claimed complete
ignorance of the purpose of the trip and denied having heard any of the “drug
transaction” conversations Mr. Cross and Ms. Carter held with the informant while in his
vehicle. The State argues that the evidence was sufficient for a rational trier of fact to
find the defendant guilty of the offenses beyond a reasonable doubt under the theory of
criminal responsibility for the actions of another. We agree with the State.

      When the sufficiency of the evidence is challenged, the relevant question of the
reviewing 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
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or
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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.”); State v. Evans, 838 S.W.2d 185, 190-92
(Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).

       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. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Our supreme court stated the rationale for this rule:

       This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their
       demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.


Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so
that on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       The defendant was convicted of a violation of Tennessee Code Annotated section
39-17-417(a)(4), (i)(5), which makes it a Class B felony to knowingly possess 26 grams
or more of cocaine with the intent to sell or deliver it. Tennessee Code Annotated section
39-17-419 provides in pertinent part: “It may be inferred from the amount of a controlled
substance or substances possessed by an offender, along with other relevant facts
surrounding the arrest, that the controlled substance or substances were possessed with
the purpose of selling or otherwise dispensing.”

        A person is criminally responsible for the actions of another if, “[a]cting with
intent to promote or assist the commission of the offense, or to benefit in the proceeds or
results of the offense, the person solicits, directs, aids, or attempts to aid another person
to commit the offense[.]” Tenn. Code Ann. § 39-11-402(2). Criminal responsibility is
not a separate crime but “is solely a theory by which the State may prove the defendant’s
guilt of the alleged offense . . . based upon the conduct of another person.” State v.
Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999).
                                              7
        When viewed in the light most favorable to the State, the evidence was sufficient
for the jury to find the defendant guilty of the offense under a theory of criminal
responsibility for the actions of Mr. Cross and Ms. Carter. The defendant admitted at
trial that he was aware that Mr. Cross was a drug dealer wanted by the police, that he
regularly drove him on errands in exchange for cash or crack cocaine, and that he
expected to be paid $25 for the August 26, 2013 trip to Lewisburg. The State presented
evidence to establish that Mr. Cross and Ms. Carter had several detailed telephone
conversations with the informant about the drug deal during the time that the defendant
drove them in his small SUV to Lewisburg. The State also presented evidence to show
that the defendant received a text message on his cell phone in which the sender, using
drug jargon, said to tell “him” that she wanted to purchase $30 and $40 worth of crack
cocaine. In his reply brief, the defendant reiterates his claims of ignorance of the purpose
of the trip and argues that a rational jury could not have inferred, based on the
circumstantial evidence, that he had the same criminal intent as Mr. Cross and Ms.
Carter. However, by convicting the defendant of the offenses, the jury obviously found
his claims of ignorance and innocence incredible. We conclude, therefore, that the
evidence is sufficient to sustain the defendant’s conviction for the possession of 26 grams
or more of cocaine with the intent to sell or deliver.

                                        II. Sentencing

       The defendant contends that his sentence is excessive and contrary to law, arguing
that the trial court erred by not applying any mitigating factors and by not imposing the
minimum sentence in light of the defendant’s limited involvement in the crime and the
“great need to preserve the State’s limited resources.” The State argues that the trial
court imposed an appropriate sentence after proper consideration of all relevant law and
principles of sentencing. We agree with the State.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:

       (1) The evidence, if any, received at the trial and the 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 involved;
                                             8
      (5) Evidence and information offered by the parties on the mitigating and
      enhancement factors set out in §§ 40-35-113 and 40-35-114;

      (6) Any statistical information provided by the administrative office of the
      courts as to sentencing practices for similar offenses in Tennessee; and

      (7) Any statement the defendant wishes to make in the defendant’s own
      behalf about sentencing.

Tenn. Code Ann. § 40-35-210(b) (2014).

        The trial court is granted broad discretion to impose a sentence anywhere within
the applicable range, regardless of the presence or absence of enhancement or mitigating
factors, and “sentences should be upheld so long as the statutory purposes and principles,
along with any applicable enhancement and mitigating factors, have been properly
addressed.” State v. Bise, 380 S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a
trial court’s sentencing determinations under an abuse of discretion standard, “granting a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.” Id. at 707.

        The trial court found two enhancement factors applicable to the case: the
defendant’s history of criminal behavior and criminal convictions in addition to those
necessary to establish his range, which the court weighed heavily, and the defendant’s
failure to comply with the conditions of a sentence involving release into the community,
to which the court attributed only slight weight. See Tenn. Code Ann. § 40-35-114(1),
(8) (2014). The court found one factor in mitigation, that the defendant’s conduct neither
caused nor threatened serious bodily injury. See id. § 40-35-113(1). The court
considered, but rejected, the defendant’s proposed mitigating factors that substantial
grounds existed to excuse or justify his conduct, that he played a minor role in the
commission of the offense, and that he committed the offense under such unusual
circumstances that it was likely he was motivated by a sustained intent to violate the law.
See id. § 40-35-113(3), (4), (11). The court, therefore, sentenced the defendant to twelve
years, the maximum sentence for a Range I offender convicted of a Class B felony.

       The record reflects that the trial court properly considered the relevant purposes
and principles of the Sentencing Act and imposed a sentence within the applicable range
for the defendant’s Class B offense. Accordingly, we find no abuse of discretion in the
sentencing imposed by the trial court.



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                                   CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court.


                                               _________________________________
                                               ALAN E. GLENN, JUDGE




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