             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE              FILED
                           JUNE 1999 SESSION
                                                      September 27, 1999

                                                      Cecil Crowson, Jr.
                                                     Appellate Court Clerk

STATE OF TENNESSEE,            )
                               )    C.C.A. No. 01C01-9808-CC-00334
      Appellee,                )
                               )    Montgomery County
v.                             )
                               )    Honorable Robert W. W edemeyer, Judge
CEDRON ORGAIN,                 )
                               )    (Coercion of a Witness)
      Appellant.               )




FOR THE APPELLANT:                  FOR THE APPELLEE:

MICHAEL R. JONES                    PAUL G. SUMMERS
District Public Defender            Attorney General & Reporter
110 Sixth Avenue West
Springfield, TN 37172               MARK E. DAVIDSON
                                    Assistant Attorney General
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    JOHN WESLEY CARNEY, JR.
                                    District Attorney General

                                    C. DANIEL BROLLIER, JR.
                                    Assistant District Attorney General
                                    204 Franklin Street, Suite 200
                                    Clarksville, TN 37040-3420




OPINION FILED: _______________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                       OPINION



          On April 27, 1998, a Montgomery County jury convicted the defendant, Cedron

Orgain, of one count of coercion of a witness. The trial court imposed an effective

sentence of four years, with six months to be served in the county jail and the remainder

of the sentence to be served in the Community Corrections Program. The defendant

timely appealed, challenging the sufficiency of the evidence. Based upon our review of this

matter, we affirm the decision of the trial court.



                                    FACTS OF THE CASE

          The defendant was charged with selling cocaine to a confidential informant. On

August 15, 1997, approximately two weeks before his scheduled trial for the cocaine sale,

the defendant encountered the informant at an Exxon station in Clarksville.



          The confidential informant testified that he went to the Exxon station, which was

located next to his place of employment, and that as he walked into the store, he saw the

defendant coming toward the entrance of the store. The informant went into the store,

purchased a drink, and then left the store. He testified that the defendant had followed him

into the store and stayed behind him while he completed the purchase. The defendant

then followed him outside, and said to him, “We need to talk.” The informant asked the

defendant to leave, but the defendant refused. When the informant threatened to call the

police, the defendant said, “You are the police. You’re a narc . . . “I’d just as soon kill you.”

The informant then banged on the window of the store and asked the clerk to call the

police.



          On cross-examination, the confidential informant testified that the defendant never

mentioned the upcoming trial or told the informant not to testify. Further, the defendant

neither struck the informant nor physically threatened him. The informant testified he had

been convicted of five prior felonies and then began working for the police as an informant.




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       The State introduced the testimony of Kim Chandler from the preliminary hearing

in General Sessions Court. Chandler was an employee of the Exxon store on August 15,

1997. Chandler stated she knew both the confidential informant and the defendant as

customers of the store, but did not know the defendant by name. Chandler heard the

confidential informant banging on the store window and calling for the police. She walked

outside and saw the two arguing. When the defendant tried to leave, the informant stood

behind his car and told him not to leave. Chandler stated that the defendant could have

bought a pack of cigarettes while in the store, but she did not know for sure.



       The defendant testified that he lived about a half a block away from the Exxon store,

which he went to often. On August 15, 1997, he went to the store to buy cigarettes and

stated he did not know that the confidential informant was in the store when he purchased

the cigarettes. After his purchase, the defendant walked outside the store toward his car,

but then walked toward the pay phone because his pager went off. As he walked toward

the pay phone, he said “excuse me” to the informant who had blocked his way to the pay

phone. The defendant said he did not recognize the informant until he began yelling and

cursing at the defendant. The informant told the defendant to “get away or I am going to

call the police.” The defendant responded by saying, “You are the police” and “You’re a

narc.” He stated that the informant made motions suggesting he wanted the defendant to

hit him. After arguing with the informant, the defendant walked back to his car to leave, but

the informant blocked his way out of the parking lot. However, the defendant backed his

car out of the lot and went home. He testified that at no time did he threaten the informant

or mention the upcoming trial.



       Sandy Olds, an officer with the drug task force which had utilized the informant,

testified in rebuttal for the State. Olds stated that the defendant and the informant were

in court at the same time for one of the defendant’s earlier appearances, prior to the trial

on the drug charges and, for a time, sat side by side in the courtroom. The State

introduced this testimony to show that the defendant could have recognized the informant

and known where he worked because of the informant’s distinctive uniform. Olds’s



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testimony rebutted the defendant’s assertion that he did not recognize the informant until

he began yelling at the defendant.



       After due deliberation, the jury found the defendant guilty of coercion of a witness.

The trial court sentenced him to four years. After six months in jail, he was to serve the

remainder of his sentence on Community Corrections. After denial of his post-trial

motions, he timely appealed.



                                   DISCUSSION OF LAW


       When a challenge is made to the sufficiency of the evidence, the standard for

appellate review is whether, after considering the evidence in a 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, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). The defendant's burden of showing insufficiency is heavy, since all conflicts in

testimony are resolved in favor of the State, and the State is entitled to the strongest

legitimate view of the evidence as well as all reasonable or legitimate inferences that may

be drawn therefrom. State v. Burns, 979 S.W.2d 276, 287 (Tenn. 1998).



       To support a conviction for coercion of a witness, Tenn. Code Ann. § 39-16-507

requires the State to prove beyond a reasonable doubt the defendant

              by means of coercion, influences or attempts to
              influence a witness or prospective witness in an
              official proceeding with intent to influence the
              witness to:

                  (1) Testify falsely;

                  (2) W i t h h o ld any      t ru t h f ul
                      testimony, truthful information,
                      document or thing; or

                  (3) E l u d e    legal    p r o ce s s
                      summoning the witness to
                      testify or supply evidence, or to
                      be absent from an official
                      proceeding to which the
                      witness has been legally
                      summoned.



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Tenn. Code Ann. § 39-16-507 (1991).            Coercion is defined as a threat, however

communicated, to commit any offense. Tenn. Code Ann. § 39-11-106(a)(3)(A) (1991).

After a review of the record and considering the evidence in the light most favorable to the

State, we find the State established all elements of the crime beyond a reasonable doubt.



         The confidential informant testified that the defendant followed him into the store

and then confronted him outside the store. According to the informant, the defendant then

said, “I’d just as soon kill you.” Based upon this testimony, the jury could find that the

defendant threatened to commit an offense as contemplated in Tenn. Code Ann. § 39-16-

506.



         Intent to influence a witness may be inferred from the actions of a defendant. State

v. Jonathan Moore, No. 03C01-9602-CC-00057, 1997 WL 65729, at *4 (Tenn. Crim. App.,

Knoxville, Feb. 13, 1997). The confidential informant had bought drugs from the defendant

and testified against him at a preliminary hearing. During the confrontation at the Exxon

station less than two weeks before the defendant’s trial, the defendant told the confidential

informant, “You are a narc” and “You are the police.” The defendant then said, “I’d just

as soon kill you.” A rational trier of fact could have inferred these actions were intended

to coerce the informant not to testify at the upcoming trial.



         Based on our review, the evidence presented at trial was sufficient to support the

conviction for coercion of a witness. For this reason, we affirm the decision of the trial

court.


                                         ________________________________________
                                         ALAN E. GLENN, JUDGE


CONCUR:



____________________________________
JOSEPH M. TIPTON, JUDGE




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____________________________________
JOE G. RILEY, JUDGE




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