                                                                                                   05/20/2020
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    April 28, 2020 Session

           STATE OF TENNESSEE v. JAMES GREENLEE DAVIS, JR.

                    Appeal from the Criminal Court for Knox County
                           No. 103759 G. Scott Green, Judge
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                             No. E2019-00682-CCA-R3-CD
                         ___________________________________


Defendant, James Greenlee Davis, Jr., was convicted by a jury of possession of a
controlled substance with intent to sell within a drug-free zone, possession of a controlled
substance with intent to deliver within a drug-free zone, and criminal trespass. The trial
court sentenced Defendant to twenty-year sentences for each of the drug convictions and
to a thirty-day sentence for the criminal trespass conviction.1 The trial court merged the
drug convictions, and ordered the trespass sentence to be served concurrently to the drug
sentence. The trial court denied Defendant’s motion for new trial. Defendant argues the
trial court erred by (1) denying the motion to suppress; (2) certifying Donna Roach as an
expert; and (3) admitting the Knoxville-Knox County KUB Geographic Information
Systems (”KGIS”) map in to evidence. After a thorough review of the record, we affirm
the judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and J. ROSS DYER, JJ., joined.

Ursula Bailey, Knoxville, Tennessee, for the appellant, James Greenlee Davis, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Philip Morton,
Assistant District Attorney General, for the appellee, State of Tennessee.



       1
          Defendant was also indicted and sentenced using gang enhancement provisions and initially
received a forty-year sentence for Counts 1 and 2. Subsequently, Defendant was resentenced to twenty-
years each after the gang enhancement was declared unconstitutional pursuant to State v. Bonds, 502
S.W.3d 118 (Tenn. Crim. App. 2016).
                                          OPINION

                               Facts and Procedural History


        On June 17, 2014, Defendant was indicted by a Knox County grand jury of one
count of possession with intent to sell a controlled substance within a drug-free zone, one
count of possession with intent to deliver a controlled substance within a drug-free zone,
one count of evading arrest, and one count of criminal trespass. The indictment indicated
that the State was seeking to apply the criminal gang enhancement statute to Defendant.

        On September 22, 2015, a hearing was held on the motion to suppress evidence.
After reviewing the evidence and applicable law, the trial court denied the motion to
suppress. The trial court found that the officers had reasonable suspicion to stop
Defendant. The trial court ruled that because the narcotics were found on the ground near
Defendant, there was not a “constitutional problem with the recovery of the drugs. [The
trial court overruled] the motion.”

       The following facts were adduced at trial. On July 29, 2013, Knoxville Police
Officer Eric P’Simer and Sergeant James Lockmiller2, were conducting a walking patrol
of the Walter P. Taylor Homes complex. The complex is owned by Knoxville
Community Development Corporation (“DCDC”). The complex had numerous “No
Trespassing” signs posted throughout the property. The officers saw Defendant in
parking lot L with his head and shoulders leaning inside the passenger window of a
parked vehicle, interacting with two occupants.

        As Officer P’Simer and Sergeant Lockmiller approached, they noticed Defendant
shift, preventing the officers from seeing anything below his chest. Officer P’Simer
asked Defendant if he was a resident, and the Defendant responded that he was not. As
the officers were preparing to ask follow up questions, Defendant turned and began to
run. Before the officers reached Defendant, he slipped on the grass and fell to the
ground. As Defendant fell, Officer P’Simer saw a bag fall from Defendant’s hand onto
the ground. Officer P’Simer and Sergeant Lockmiller detained Defendant and retrieved
the bag. The bag contained what appeared to be crack cocaine. Tennessee Bureau of
Investigation lab testing identified the substance to be 3.06 grams of cocaine base. The
officers conducted a pat down search of Defendant and found $962 in cash. Shortly
thereafter, it was determined that neither Defendant or the occupants of the vehicle were


       2
        Sergeant Lockmiller’s name is spelled two different ways in the record, Lockmiller and
Lochmueller. We will use Lockmiller as it is spelled in Defendant’s brief and the State’s brief.
                                             -2-
residents of Walter P. Taylor Homes. Defendant’s name was listed on a no trespass list
maintained by KCDC.

      Donna Roach, employed by KGIS, identified a map she created that showed
parking lot L was located within 1000 feet of a recreation center, the Boys and Girls
Club. The map was accurate to an error rate of one inch for every 100 feet.

       After the State’s proof was presented, Defendant moved for a judgment of
acquittal on all counts. The trial court partially granted the motion and dismissed the
evading arrest count. The remaining counts were sent to the jury, and the jury found
Defendant guilty as charged on the remaining counts.3 The trial court ultimately
sentenced Defendant to twenty-years’ incarceration each for Counts 1 and 2. Defendant
received a sentence of thirty-days for Count 3. Counts 1 and 2 were merged, and Count 3
was ordered to be served concurrently with Counts 1 and 2. Defendant timely filed a
motion for new trial, and the motion was denied by the trial court. It is from that denial
that Defendant now appeals.

                                               Analysis

        Defendant argues that the trial court erred by overruling the motion to suppress
evidence, that the trial court erred by allowing Ms. Roach to testify as an expert, and that
the trial court erred by admitting the KGIS map when it was not relevant and not reliable.
The State argues that the trial court did not err in denying the motion to suppress and
admitting the KGIS map. The State further argues that that Defendant has waived the
issue of Ms. Roach being qualified as an expert. We agree with the State.

                                       I. Motion to Suppress

       Defendant argues that that the trial court erred by denying the motion to suppress
because Defendant was arrested without probable cause, and the drugs and money
recovered were fruit of the poisonous tree. The State argues that the trial court properly
exercised its discretion in denying the motion to suppress.

        In reviewing a trial court’s ruling on a motion to suppress, this Court will uphold
the trial court’s findings of fact unless the evidence preponderates otherwise. State v.
Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing in the trial court is
afforded “the strongest legitimate view of the evidence and all reasonable and legitimate
inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864

        3
           The trial was bifurcated and the jury then heard proof on the gang related enhancement charge.
As it is not relevant to this appeal, we have not included those facts.
                                                  -3-
(Tenn. 1998). Questions concerning the “credibility of the witnesses, the weight and
value of the evidence, and resolution of conflicts in the evidence are matters entrusted to
the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. However, our review of the
trial court’s application of the law to the facts is de novo, with no presumption of
correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001).

        The Fourth Amendment to the United States Constitution and Article I, section 7
of the Tennessee Constitution guarantee protection from unreasonable searches and
seizures. State v. Nicholson, 188 S.W.3d 649, 656 (Tenn. 2006). “However, neither the
Fourth Amendment nor Article I, section 7 limit all contact between police and citizens.”
State v. Daniel, 12 S.W.3d 420, 424 (Tenn. 2000). There are three categories of police-
citizen interaction: (1) a full scale arrest which must be supported by probably cause; (2)
a brief investigatory detention which must be supported by reasonable suspicion; and (3)
brief police-citizen encounters which require no objective justification. Id. “While
arrests and investigatory stops are seizures implicating constitutional protections,
consensual encounters are not.” Nicholson, 188 S.W.3d at 656. The State bears the
burden of proving that a warrantless action was justified as a lawful investigatory stop or
under some other exception to the warrant requirement. Id. at 656-657. We apply the
totality of the circumstances analysis and the standard of whether a reasonable person
would believe that he was not free to leave. Id. at 658.

       When conducting an investigatory stop, an officer must be able to point to specific
and articulable facts that taken with rational inferences reasonably warrant the stop. Id. at
659. “Whether reasonable suspicion for an investigatory stop exists must be evaluated
under the totality of the circumstances known to the police at the time of the stop.” Id.
“Under the Tennessee Constitution, a seizure implicating constitutional protections
occurs only if, in view of all of the circumstances surrounding the encounter, a reasonable
person would have believed that he or she was not free to leave.” Id. at 657. Our
supreme court has stated

       whether a person has been physically restrained or has stopped or yielded to
       a show of authority by the police is not dispositive of whether there has
       been a seizure under the Tennessee Constitution. Instead, we apply the
       well-established totality of the circumstances analysis and the standard of
       whether a reasonable person would have believed that he or she was not
       free to leave.

Id.

      Probable cause is more than mere suspicion, but less than certainty. State v. Bell
429 S.W.3d 524, 530 (Tenn. 2014). Probable cause exists when “at the time of the arrest,
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the facts and circumstances within the knowledge of the officers, and of which they had
reasonably trustworthy information, are sufficient to warrant a prudent person in
believing that the defendant had committed or was committing an offense.” State v.
Echols, 382 S.W.3d 266, 277-78 (Tenn. 2012). “When determining whether probable
cause existed for a warrantless arrest, courts should consider the collective knowledge
that law enforcement possessed at the time of the arrest, provided that a sufficient nexus
of communication existed between the arresting officer and any other officer or officers
who possessed relevant information.” Bell, 429 S.W.3d at 530.

       At the motion to suppress hearing, Sergeant Lockmiller testified that he saw
Defendant at the Walter P. Taylor Homes at 2:30 a.m. Defendant was leaning in the
window of the passenger side of a parked vehicle interacting with the passengers in what
looked to Sergeant Lockmiller like a hand-to-hand transaction. Sergeant Lockmiller saw
some type of hand movement between the parties, and he and Officer P’Simer
approached. At that point, Sergeant Lockmiller’s goal was to engage Defendant to
ascertain whether he was a resident of the complex. As he was approached, Defendant
shifted his position and made “some sort of motion around his waistband.” Defendant
then backed away from the vehicle, turned to flee, and fell in the grass. Now the
circumstances had changed and Sergeant Lockmiller felt it was reasonable to detain
Defendant to establish whether Defendant was trespassing. Once Defendant had fallen,
Sergeant Lockmiller detained him, and Officer P’Simer retrieved a bag from the ground
in close proximity to Defendant that appeared to contain crack cocaine. Subsequently
Sergeant Lockmiller found between $900 to $1000 in cash on Defendant’s person. It was
determined that the occupants of the vehicle were not residents of the complex. Within a
short period of time it was discovered that Defendant was not a resident of the Walter P.
Taylor Homes, and he was listed on a no trespass list maintained by the property and the
Knoxville Police Department. After reviewing the evidence and applicable law, the trial
court denied the motion to suppress. The trial court found that the officers had
reasonable suspicion to stop Defendant. The trial court stated that

      It’s 2:30 in the morning, [Defendant is] in a high crime area, [Sergeant
      Lockmiller] sees a person at the window of a SUV, and there’s some sort of
      hand movement going on, as officers get closer to the vehicle the suspect
      begins to walk away from the vehicle and is doing something at his
      waistband, and then ultimately runs unwittingly into the arms of another
      police officer. [The trial court doesn’t] have a problem with reasonable
      suspicion. I think that’s clearly been shown.”


The trial court went on to explain that the question then becomes “was there enough
evidence there for a custodial arrest.” The trial ultimately court ruled that because the
                                          -5-
narcotics were found on the ground near Defendant, there was not a “constitutional
problem with the recovery of the drugs. [The trial court overruled] the motion.” The
$962 was discovered as part of a search incident to a lawful arrest.

        At the evidentiary hearing, the record does not show that Defendant had been
asked about his possible residency at the housing complex prior to Defendant turning to
flee. As distinguished from Nicholson, the police officers in Nicholson did not observe
the defendant committing an illegal act. 188 S.W.3d at 663. The defendant happened to
be walking through the same area as the group the police observed. Id. Here, the cause
for Defendant’s seizure was not simply that he was in the area that police officers were
patrolling, as in Nicholson. See id. at 660. Sergeant Miller testified that at 2:30 a.m. in a
parking lot of a housing complex, known to be a high crime area, he saw that Defendant
engaged in a hand-to-hand transaction and that Defendant turned and shielded his body
from Sergeant Lockmiller’s view while doing something at his waistband. Defendant
saw Sergeant Lockmiller, turned to flee, unexpectedly saw Officer P’Simer, and slipped
on the wet grass. Police had reasonable suspicion to conduct an investigation before
Defendant turned to flee. The investigation showed that Defendant was trespassing and
that Defendant possessed crack cocaine. Given the totality of all these circumstances, the
evidence does not preponderate against the findings of the trial court. Defendant is not
entitled to relief.

                                   II. Expert Testimony

      Defendant argues that the trial court erred in qualifying Ms. Roach as an expert.
The State argues that the trial court properly qualified Ms. Roach as an expert but
Defendant has waived the issue because it was not included in the motion for new trial.

       Tennessee Rule of Appellate Procedure 3(e) provides in part that

       in all cases tried by a jury, no issue presented for review shall be predicated
       upon error in the admission or exclusion of evidence, jury instructions
       granted or refused, misconduct of jurors, parties or counsel, or other action
       committed or occurring during the trial of the case, or other ground upon
       which a new trial is sought, unless the same was specifically stated in a
       motion for a new trial; otherwise such issues will be treated as waived.

Accordingly, this issue is waived. Defendant is not entitled to relief.

                                      III. KGIS Map



                                            -6-
       Defendant argues that the trial court erred in admitting the KGIS map. Defendant
argues that the map was not relevant or reliable. The State argues that the map was
properly admitted.

       The admissibility of evidence rests within the trial court’s sound discretion, and
this Court will not overturn a trial court’s decision regarding the admissibility of the
evidence absent an abuse of that discretion. State v. Clayton, 535 S.W.3d 829, 859
(Tenn. 2017) “A court abuses its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal standard, (2) reaching an
illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence.” State v. McCaleb, 582 S.W.3d 179, 186 (Tenn. 2019).
(quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)) (citations
omitted). “[R]eviewing courts should review a [trial] court’s discretionary decision to
determine (1) whether the factual basis for the decision is properly supported by evidence
in the record, (2) whether the [trial] court properly identified and applied the most
appropriate legal principles applicable to the decision, and (3) whether the [trial] court’s
decision was within the range of acceptable alternative dispositions. Id. “[T]he abuse of
discretion standard of review does not permit an appellate court to substitute its judgment
for that of the trial court.” Id. (quoting State v. Harbison, 539 S.W.3d 149, 159 (Tenn.
2018)).

        Evidence must be relevant to be admissible. Tenn. R. Evid. 402. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Tenn. R. Evid. 401. Tennessee courts have recognized that evidence can
be so unreliable as to render it irrelevant. State v. Pierce, 138 S.W.3d 820, 826 (Tenn.
2004).

        Here, the map contained a disclaimer which states “KGIS makes no representation
or warranty as to the accuracy of this map and its information nor its fitness for use.”
Defendant argues that this disclaimer makes the map unreliable, and therefore irrelevant.
However, the jury heard testimony from Ms. Roach that the map was accurate to within
one inch for every 100 feet. Given the accuracy as testified by Ms. Roach, the map was
relevant to establish Defendant was within 1000 feet of a drug free zone. This
uncontroverted rate of accuracy cannot be said to be so unreliable as to render the trial
court’s admittance of the relevant map an abuse of discretion. Defendant is not entitled
to relief.

                                        Conclusion

       For the foregoing reasons, the judgments of the trial conviction court are affirmed.
                                           -7-
 ____________________________________
 TIMOTHY L. EASTER, JUDGE




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