         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs January 8, 2008

          STATE OF TENNESSEE v. SHAMARCUS ANTWAN HUNT

                   Direct Appeal from the Circuit Court for Gibson County
                           No. 8288    Clayburn L. Peeples, Judge



                    No. W2007-01767-CCA-R3-CD - Filed March 24, 2008


The defendant, Shamarcus Antwan Hunt, was convicted of the sale of cocaine under .5 grams, a
Class C felony, and possession of cocaine over .5 grams with intent to manufacture, deliver, or sell,
a Class B felony. He was sentenced, respectively, to eight years and twelve years in the Department
of Correction, to be served consecutively. On appeal, he argues that the evidence was insufficient
to support his convictions and that the trial court should have declared a mistrial following allegedly
improper remarks by the prosecutor during closing arguments. Following our review, we affirm the
judgments of the trial court but remand for entry of corrected judgments to reflect that the
defendant’s sentences are to be served consecutively, rather than concurrently.

   Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed and
                      Remanded for Entry of Corrected Judgments

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and J.C. MCLIN ,
JJ., joined.

Tom W. Crider, District Public Defender, and Linda L. Moore, Assistant Public Defender, for the
appellant, Shamarcus Antwan Hunt.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Edward L. Hardister and Harold E. Dorsey,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                             OPINION

                                               FACTS

        At trial, Officer Terry Williams of the Humboldt Police Department testified that he was sent
by Officer Danny Lewis to West Side Drive on September 7, 2006, to purchase cocaine. He pulled
into the parking lot of a grocery store and approached the defendant, who was at a car wash located
in the parking lot. He asked the defendant if he had “anything,” and the defendant told him that he
had powder cocaine. Officer Williams purchased twenty dollars worth of cocaine from the defendant
and then asked him if he had any more. When the defendant replied affirmatively, Officer Williams
told him he wished to buy an additional one hundred dollars worth of cocaine and asked the
defendant to accompany him to an ATM to withdraw the money.

        Danny Lewis, the assistant special agent in charge of the Drug Task Force of the Twenty-
Eighth Judicial District, testified that on September 7, 2006, he was working on an undercover drug
purchase operation. Agent Lewis supplied Officer Williams with a car containing video and audio
equipment and a twenty-dollar bill with which to purchase drugs. He testified that after Officer
Williams asked the defendant to accompany him to the ATM, the defendant entered Officer
Williams’ car and Officer Williams drove to a “takedown” location where an arrest team was
waiting. Agent Lewis arrived at the takedown location as officers were removing the defendant from
the vehicle. He identified the twenty-dollar bill he gave to Officer Williams and said that the bill
was recovered from the defendant’s left front pants pocket after his arrest. He also identified two
bags of cocaine, a smaller bag given to him by Officer Williams after the defendant’s arrest and a
larger bag recovered from the defendant’s left front pants pocket.

        Tennessee Bureau of Investigation Agent Dana Parmenter, accepted by the trial court as an
expert in the field of drug chemistry, testified that she analyzed the two bags identified by Agent
Lewis and found that both bags contained powder cocaine in an aggregate amount of 2.5 grams. On
cross-examination, Agent Parmenter testified that the smaller bag contained .2 grams of cocaine, and
the larger bag contained 2.3 grams of cocaine.

        Following deliberations, the jury convicted the defendant of sale of cocaine under .5 grams
and possession of cocaine over .5 grams with intent to manufacture, deliver, or sell. The trial court
sentenced the defendant to eight years as a Range II, multiple offender on the sale conviction and to
twelve years as a Range I, standard offender on the possession conviction. The court found that the
defendant was an offender whose record of criminal activity was extensive and ordered his sentences
to be served consecutively.

                                           ANALYSIS

        The defendant argues that the evidence was insufficient to support his convictions and that
the prosecutor committed misconduct rising to the level of reversible error when he mistakenly stated
in closing arguments that defense counsel referred to the defendant as a “drug dealer” during opening
statements. The State argues that the evidence was sufficient to support the defendant’s convictions
and that the defendant waived the issue of prosecutorial misconduct by not objecting
contemporaneously or in his motion for new trial. As we will explain, we agree with the State.




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                                   I. Sufficiency of the Evidence

        Where sufficiency of the convicting evidence is challenged, the relevant question for 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, 99 S. Ct. 2781, 2789 (1979); see also
Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or 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. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

         Tennessee Code Annotated section 39-17-417 regulates trafficking in controlled substances.
It states, in part:

        (a) It is an offense for a defendant to knowingly:

                (1) Manufacture a controlled substance;

                (2) Deliver a controlled substance;

                (3) Sell a controlled substance; or


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              (4) Possess a controlled substance with intent to manufacture, deliver or sell
       the controlled substance.

               ....

       (c) A violation of subsection (a) with respect to:

              (1) Cocaine or methamphetamine is a Class B felony if the amount involved
       is point five (.5) grams or more of any substance containing cocaine or
       methamphetamine and, in addition, may be fined not more than one hundred
       thousand dollars ($100,000);

              (2)(A) Any other Schedule II controlled substance, including cocaine or
       methamphetamine in an amount of less than point five (.5) grams, is a Class C felony
       and, in addition, may be fined not more than one hundred thousand dollars
       ($100,000).

        The defendant argues that the evidence was insufficient to support his convictions for sale
and possession of cocaine and supported only convictions for casual exchange of a controlled
substance and simple possession of cocaine. However, the proof adduced at trial showed that the
defendant knowingly sold a bag containing .2 grams of cocaine to Officer Williams for twenty
dollars, offered to sell Officer Williams an additional one hundred dollars worth of cocaine, and
possessed a bag containing 2.3 grams of cocaine when he was arrested. This evidence was sufficient
to support the defendant’s convictions for sale of cocaine and possession of cocaine with intent to
sell. This assignment is without merit.

                                  II. Prosecutorial Misconduct

        The defendant also argues that the prosecutor engaged in misconduct constituting reversible
error when he stated in his closing argument that defense counsel had referred to the defendant as
a “drug dealer” during her opening statement. He contends that this statement was extremely
prejudicial and could have affected the jury’s verdict. However, the defendant concedes that he did
not lodge a contemporaneous objection to this statement, and the record reflects that he did not raise
this issue in his motion for new trial. Therefore, the defendant has waived this issue. The failure
to contemporaneously object to a prosecutor’s allegedly improper remarks waives plenary appellate
review of that issue. Tenn. R. App. P. 36(a); State v. Thornton, 10 S.W.3d 229, 234 (Tenn. Crim.
App. 1999). Furthermore, plain error analysis is inappropriate because the defendant concedes that
his decision not to object contemporaneously was “a tactical strategy.” See State v. Smith, 24
S.W.3d 274, 282-83 (Tenn. 2000) (before recognizing the existence of plain error, a reviewing court
must find, among other things, that the accused did not waive the issue for tactical reasons). The
defendant is not entitled to relief on this issue.




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                                 III. Clerical Error in Judgments

        Although not called to our attention by either party, our review of the appellate record reveals
that the judgments of conviction erroneously state that the defendant’s sentences are to be served
concurrently. The defendant was convicted in three indictments in addition to those which are the
subject of this appeal, which resulted in convictions on two counts, with all sentences to be served
consecutively. The transcript of the sentencing hearing reflects that the trial court ordered that the
defendant’s sentences run consecutively:

               With regard to the conviction for possession of cocaine for the purpose of sale
       in an amount of .5 grams or more, I find the Defendant to be a [s]tandard [o]ffender;
       however, I find that there are significant aggravating factors. I find that the defendant
       has an extensive record of criminal conduct. I find that there is a previous history of
       his inability or unwillingness to comply with any sort of measures – any measures
       short of incarceration and I find that these offenses having been committed within
       three months of his having previously been convicted of selling drugs were
       committed while he was on probation. I do not find any mitigating factors.

              I think a sentence of 12 years in the State Penitentiary is appropriate for that
       offense.

                With regard to the other conviction, that being an unlawful sale of cocaine in
       an amount of .5 grams or more, I do find that he is a multiple offender with regard
       to that and set his sentence at eight years in the State Penitentiary. I do not find that
       he is a professional criminal; however, I do find that he is an offender whose record
       of criminal activity is extensive and I, therefore, run the sentences consecutively.

       Thus, the judgments as to the two convictions resulting from this trial are in direct conflict
with the sentencing hearing transcript. Where the judgment of conviction and the transcript of the
proceeding conflict, the transcript controls. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App.
1991). Therefore, we remand to the trial court with instructions to amend the judgments in counts
2 and 3 to reflect that the defendant’s sentences are to be served consecutively.

                                          CONCLUSION

        Based on the foregoing authorities and reasoning, the judgments of the trial court are
affirmed, and the case is remanded to the trial court for entry of corrected judgments as set out
herein.

                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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