        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               February 12, 2013 Session

    STATE OF TENNESSEE v. STEPHEN BARTHOLOMEW GILLARD

                Appeal from the Criminal Court for Davidson County
                   No. 2010-D-3004    Cheryl Blackburn, Judge




                No. M2012-00910-CCA-R3-CD - Filed March 27, 2013


A Davidson County jury convicted the Defendant, Stephen Bartholomew Gillard, of
possession of a controlled substance, third offense. On appeal, the Defendant challenges the
prior conviction evidence introduced at trial to support the third offense classification for
possession of a controlled substance. After a thorough review of the record and applicable
law, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J ERRY L. S MITH
and J EFFREY S. B IVINS, JJ., joined.

Joy S. Kimbrough, Nashville, Tennessee, for the appellant, Stephen Gillard.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; Jeff Burks, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       This cases arises from a police interaction with the Defendant, which resulted in
recovery of marijuana from the Defendant’s person. As a result, a Davidson County grand
jury indicted the Defendant for possession of a controlled substance, possession of a firearm
with intent to employ it in the commission of an offense, and aggravated assault.

      On appeal, the Defendant challenges the sufficiency of the evidence of a prior
conviction for possession of a controlled substance. This evidence was presented in the
second phase of a bifurcated trial. We briefly summarize the evidence from the first phase
of trial as follows: The Defendant was at a Mapco gas station at 3:00 a.m. on August 12,
2010, with two other friends. While at the gas station, a police officer inquired about the
Defendant’s possession of a gun. After additional police officers arrived, the Defendant
agreed to a search of his person. During the search, police officers found 1.6 grams of
marijuana in the Defendant’s pocket. Based upon this evidence, the jury convicted the
Defendant of possession of a controlled substance

        The trial court then held the second phase of the trial, to determine whether the
Defendant’s prior convictions for simple possession or casual exchange justified
classification of the current offense as an E felony pursuant to Tennessee Code Annotated,
section 39-17-418(e). During this portion of the trial, the parties presented the following
evidence: Patti Goodman, an employee of the Davidson County Criminal Court Clerk’s
office, testified that the clerk’s office stores and maintains all Davidson County records for
criminal and general sessions court. Goodman explained that in Davidson County there are
eleven divisions of General Sessions Court and six divisions of Criminal Court. She said that
the general sessions courts can only dispose of misdemeanor cases and conduct preliminary
hearings on misdemeanor and felony cases to be bound over to the criminal courts.

        Goodman testified that she brought with her two files containing charges against the
Defendant for possession or casual exchange of a controlled substance. The first file
contained a state citation, SC753361, charging the Defendant with simple possession of a
controlled substance. This citation was projected on a screen for the jury to view. The
citation indicated that the Defendant signed a waiver of his right to a jury trial and entered
a guilty plea to the charge on April 24, 2007. Goodman explained that the general sessions
court took this guilty plea “under advisement” to allow the Defendant to complete a drug and
alcohol education program and return to court on July 2, 2007. On July 2, 2007, the
Defendant did not appear in court and had not completed the drug and alcohol education
program, so the general sessions court entered the Defendant’s guilty plea and placed a ten-
day sentence in effect by issuing a capias for the Defendant’s arrest. The citation reflected
the general sessions court judge’s signature, the date of July 2, 2007, and the ten-day
sentence for “failure to comply with court orders.”

       Goodman testified that the other file, GS358623, contained a warrant charging the
Defendant with possession or casual exchange of a controlled substance. Goodman said that
both the state citation and the warrant contained the Defendant’s birth date and social
security number. The warrant, GS358623, was disposed of on January 15, 2008, when the
Defendant pled guilty and was sentenced to a suspended sentence of six months, to be served
on probation. The General Sessions disposition of this charge bore both the judge’s and the
Defendant’s signatures. This document also was projected on a screen for the jury to view.

                                              2
       On cross-examination, Goodman testified that she was not in court on April 24, 2007,
when the Defendant entered a guilty plea on the state citation. She said that her testimony
was based upon her knowledge of the maintenance of the records. Goodman agreed that
above the Defendant’s signature on the state citation, neither of the boxes indicating guilty
or not guilty were marked.

       On redirect examination, Goodman clarified that the general sessions court had
substituted checking the boxes indicating guilty or not guilty for stamping the order of
service of ten days at the bottom of the citation.

       Lisa Cooper-Betts, a Davidson County Criminal Court docket clerk, testified that the
current case file against the Defendant indicated the same date of birth and social security
number as those listed on the general sessions files about which Goodman testified.

       Based upon this evidence, the jury convicted the Defendant of possession of a
controlled substance, third offense, a Class E felony. The trial court sentenced the Defendant
to one year as a Range I, standard offender, and placed the Defendant on two years
supervised probation. It is from this judgment that the Defendant now appeals.

                                         II. Analysis

       The Defendant contends that the State provided insufficient evidence that he had two
prior convictions to support enhancement of his conviction to possession of a controlled
substance, third offense. The State responds that the proof supports the jury ’s finding of the
Defendant’s guilt of possession of a controlled substance, third offense, beyond a reasonable
doubt. We agree with the State.

        When an accused challenges the sufficiency of the evidence, this Court’s standard of
review is whether, after considering 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) (emphasis in original); see
Tenn. R. App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State
v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and circumstantial
evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999) (citing
State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the absence of direct
evidence, a criminal offense may be established exclusively by circumstantial evidence.
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury decides the weight to be given

                                               3
to circumstantial evidence, and ‘[t]he inferences to be drawn from such evidence, and the
extent to which the circumstances are consistent with guilt and inconsistent with innocence,
are questions primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(quoting Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958)). “The standard of review [for
sufficiency of the evidence] ‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting
State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
Nor may this Court substitute its inferences for those drawn by the trier of fact from the
evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956)). “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
are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “‘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. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978) (quoting State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973)). The Tennessee 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, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d 523,
527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest legitimate
view of the evidence’” contained in the record, as well as “‘all reasonable and legitimate
inferences’” which may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (quoting
State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a
defendant removes the presumption of innocence and raises a presumption of guilt, the
convicted criminal defendant bears the burden of showing that the evidence was legally
insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.
2000).

      A conviction for possession of a controlled substance, as relevant to this case, requires
proof beyond a reasonable doubt that the defendant knowingly possessed or casually
exchanged a controlled substance not obtained through a valid prescription. T.C.A. § 39-17-

                                               4
418(a)(2006). Simple possession is usually a Class A misdemeanor. T.C.A. § 39-17-418(c).
In a case where the defendant has two or more prior convictions for possession, the offense
is a Class E felony. T.C.A. § 39-17-418(e)

       Tennessee Code Annotated section 40-35-203(3) provides:
       If the criminal offense for which the defendant is charged carries an enhanced
       punishment for a second or subsequent violation of the same offense, the
       indictment in a separate count shall specify and charge that fact. If the
       defendant is convicted of the offense, then the jury must find that beyond a
       reasonable doubt the defendant has been previously convicted the requisite
       number of times for the same offense. Upon such a finding, the defendant
       shall be subject to the authorized terms of imprisonment for the felonies and
       misdemeanors as set forth in § 40-35-111.

       The evidence, viewed in the light most favorable to the State, proves that the
Defendant had two prior misdemeanor convictions to which he pled guilty in general sessions
court. The State introduced into evidence a state citation and a warrant indicating that the
Defendant pled guilty to simple possession on April 24, 2007, and January 15, 2008,
respectively. Both the warrant and state citation confirmed the identity of the Defendant by
name, birth date, and social security number. This is sufficient evidence upon which a jury
could find beyond a reasonable doubt that the Defendant had two prior convictions.

        The Defendant specifically attacks the sufficiency of the state citation arguing that the
state citation is inadequate because the box indicating “Guilty” on the state citation was
unmarked. The Defendant cites State v. McJunkin, 815 S.W.2d 542 (Tenn. Crim. App. 1991)
in support of his contention that the state citation in this case is void and can not be used for
enhanced punishment. In McJunkin, this Court addressed a situation where the prior
judgment the State sought to introduce for sentence enhancement was not signed by the trial
court. This Court concluded “an unsigned judgment is void” and that the testimony of a
court clerk as to the trial judge’s normal practice was not enough to overcome the deficiency
of an unsigned judgment. Id. at 544. The Court reasoned that, “A judgment must be ‘full
and definite upon its face and not dependent upon extrinsic evidence for certainty or
completeness.’” Id. (citing Swanner v. State, 215 S.W.2d 784 (Tenn. 1948)). The Defendant
claims that, because the box indicating “Guilty” above the Defendant’s signature is
unchecked, the trial court failed to “clearly indicate” a disposition for the case.

        Under the circumstances of this case, we believe that the general sessions judgment
can be used as the basis for enhanced punishment based upon prior convictions. The state
citation contains a narrative of the offense. The Defendant’s signature, dated April 24, 2007,
is found under the waiver of rights to be tried by indictment or presentment. The trial court

                                               5
did not enter a judgment at that time and, as indicated on the citation, ordered the Defendant
to complete a drug and alcohol education course and return to court on July 2, 2007. At the
bottom of the citation it is noted that the Defendant failed to attend the July 2, 2007 court
date and failed to complete the required drug and alcohol education course. As a result, the
trial court entered the judgment against the Defendant for failure to comply, hand wrote in
the sentence of ten days, issued a capias for the Defendant’s arrest, and signed the judgment.

       Therefore, we believe that the omission of a check mark in the box next to “Guilty”
on the state citation above the Defendant’s signature, in light of the trial court’s stamped and
handwritten entry of the judgment and sentence, is not an omission of such nature as to make
the judgment void. It seems clear that the Defendant entered a conditional guilty plea on
April 24, 2007, and when he failed to comply with the next court appointment and the
requirement of the completion of a drug and alcohol education course, the trial court entered
the judgment against him and sentenced the Defendant to ten days.

       This case is distinguishable from McJunkin, where there was a clear omission of a
judge’s signature. Here, there is merely a substitution of the location of the disposition on
the judgment form. The citation in this case is “not dependent upon extrinsic evidence” for
completeness. Id. It merely requires one to look to the bottom of the document where the
disposition is stamped and the trial judge hand wrote the sentence length.

       The Defendant also asserts that McJunkin stands for the proposition that Tennessee
Rule of Criminal Procedure 32(e) is applicable to general sessions courts even though not
specifically enumerated in Tennessee Rule of Criminal Procedure 1. Because we have
concluded that the state citation is not void and did not omit any necessary information, we
do not reach this issue.

       Accordingly, we conclude that the certified copy of the state citation judgment is not
void and that there was sufficient evidence for a jury to find beyond a reasonable doubt that
the Defendant had two prior convictions which warranted enhanced punishment. The
Defendant is not entitled to relief.

                                       III. Conclusion

       After a thorough review of the record before this Court, we hold that the evidence is
sufficient to sustain the Defendant’s conviction. The judgment of the trial court is affirmed.

                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE



                                               6
