            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs October 25, 2005

                 STATE OF TENNESSEE v. JOE MAC PEARSON
                    Direct Appeal from the Circuit Court for Marshall County
                                 No. 15896 Charles Lee, Judge



                      No. M2004-03074-CCA-R3-CD - Filed January 5, 2006


The appellant, Joe Mac Pearson, was convicted by a jury in the Marshall County Circuit Court of
selling a Schedule II controlled substance, namely oxycodone, and he received a sentence of ten
years in the Tennessee Department of Correction. On appeal, the appellant challenges the
sufficiency of the evidence supporting his conviction and the sentence imposed. Upon our review
of the record and the parties’ briefs, we affirm the judgment of the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Andrew Jackson Dearing, III, Shelbyville, Tennessee, for the appellant, Joe Mac Pearson.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; W.
Michael McCown, District Attorney General; and Weakley E. Barnard, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                  OPINION

                                          I. Factual Background

        At trial, Shane George, an officer with the Shelbyville Police Department assigned as an
agent with the 17th District Drug Task Force, testified that for a period of eight months to a year, the
task force utilized the services of a confidential informant, Timothy Lee Little.1 Agent George stated
that Little was usually paid fifty or sixty dollars for each undercover drug purchase he made for the
task force. Approximately six months after Little began making undercover purchases for the task
force, Little gave police information indicating the appellant’s involvement in drugs. Accordingly,


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             Little was also known by the names “Tim Little” and “Tim Bone.” Little passed away several months
prior to trial.
the task force began a “targeting effort” to catch the appellant.

        At 5:30 p.m. or 6:00 p.m. on November 13, 2002, Little, Agent George, Agent Bill
Ostermann, and Agent Tim Miller met at the Industrial Park in Lewisburg to coordinate efforts to
purchase Oxycontin, a Schedule II drug, from the appellant. Agent George searched Little’s person
and his vehicle for money or contraband and found none. Because the audio equipment the task
force ordinarily used to record drug purchases was not working, Little was equipped with a
microcassette recorder. Additionally, Little was given sixty dollars of task force money. At that
time, Agent George was working in an undercover capacity, and the decision was made that he
would accompany Little during the purchase to help ensure that the purchase would be made safely.
Little and Agent George drove to 803 Marshall Street, the appellant’s address, with Agents
Ostermann and Miller following.

         Little and Agent George arrived at the residence. Agent George saw several cars parked at
the residence. Little and Agent George got out of the vehicle and walked to the front porch. Little
knocked on the front door, and the appellant answered the door. Little went into the residence first,
with Agent George immediately behind him. Two unidentified white males were in the residence,
sitting on the couch. Little asked the appellant to step outside, and all of the men followed.

         Once outside, the men walked toward Little’s vehicle. Little told the appellant that he had
been having problems with his car, and he asked for suggestions as to how to remedy the problems.
Little then asked the appellant “for four of those,” meaning Oxycontin pills. Agent George testified
that there was no conversation regarding the price of the pills; it was “understood” that the cost was
fifteen dollars per pill. All of the men returned inside the residence, and the appellant went to a
small table located beside a recliner in the living room. From the table, the appellant picked up a
medicine bottle, removed four yellow pills which appeared to be Oxycontin, and handed the pills to
Little. The appellant then looked at Agent George, who explained that “two of those are mine.”
Agent George looked at the pills and told Little that the pills looked good so he should pay the
appellant. Little pulled the sixty dollars of task force money from his pocket and handed it to the
appellant. Agent George saw the appellant take the money, but he did not see what the appellant did
with it. Little kept two of the pills and gave the other two pills to Agent George.

        Little told the appellant that he was concerned because his car had been overheating and
asked the appellant if he could borrow a water hose. The appellant showed Little where the water
hose was located. While Little went to take care of his vehicle, he handed his two Oxycontin pills
to Agent George. Agent George put the four pills into his pocket. The appellant, Little, and Agent
George went outside. After Little put water into his car, he and Agent George left the appellant’s
residence, followed by Agents Ostermann and Miller. Upon their arrival at the industrial park, Agent
George again searched Little. He found no money or contraband. Agent George took possession
of the microcassette recorder. Upon returning to task force headquarters, Agent George relinquished
custody of the four Oxycontin pills to Director Tim Lane.

       Agent Tim Miller was the next witness to testify. Agent Miller explained that he was


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employed by the Lincoln County Sheriff’s Department, but he was assigned to work as an agent with
the 17th District Drug Task Force. Agent Miller was the assistant director of the task force. Agent
Miller testified that Little had not been “working off charges”; instead, Little had approached police
about helping to make undercover drug purchases, and he was referred to Agent Miller.

       Agent Miller stated that he was present at the industrial park on November 13, 2002, on both
occasions when Agent George searched Little. Agent Miller opined that each search was thorough.
Agent Miller maintained that he followed Little and Agent George during the operation, and he kept
them in sight as much as possible.

        Agent Miller recalled that the appellant was arrested on October 1, 2003. On October 3,
2003, the appellant’s wife, Charlotte Pearson, called Agent Miller, stating that the appellant wanted
to talk with police. Agent Miller asked Agent Ostermann to accompany him to the jail to interview
the appellant. The agents arrived and sat down to talk with the appellant. Agent Miller asked the
appellant if he wanted to talk with police. The appellant replied affirmatively. Agent Miller advised
the appellant of his Miranda rights. The appellant stated that he understood his rights, then he signed
a written waiver of rights form. Agent Steve Mitchell came in, and he and Agent Ostermann signed
the waiver as witnesses. The waiver was executed at approximately 3:00 p.m.

         The appellant told Agent Miller that he had injured his back in 2000. As a result, the
appellant went to a “pain center” in Nashville where Dr. Chung prescribed Oxycontin pain killers.
The appellant told the agents that he became addicted to pain killers. The appellant said that in
January 2002, he began selling his Oxycontin pills to make money. The appellant gave the agents
a list of the people to whom he regularly sold pills in 2002.

        The appellant stated that in 2002, he primarily sold forty milligram Oxycontin pills for ten
dollars each. However, in 2003, the appellant began selling twenty and eighty milligram Oxycontin
pills. The appellant charged fifty dollars for each eighty milligram pill, twenty-five dollars for each
forty milligram pill, and twelve dollars for each twenty milligram pill. The appellant began to sell
regularly to more people, and he added their names to the list. The appellant estimated that he had
earned $40,000 to $50,000 profit from his drug sales since 2002.

         The appellant told the agents that he worked at H & H Small Engine Repair with Steve
Hargrove. He maintained that Hargrove was involved with him in the distribution of Lortab pills,
hydrocodone pills, and oxycontin pills; however, the bulk of their distribution was Oxycontin pills.
The appellant indicated that Hargrove had “a little higher” ranking than the appellant. Hargrove sold
the appellant the vehicle he was driving for $5,000. The appellant paid Hargrove $300 per month
from his drug sales for the vehicle. Additionally, Hargrove supplied the appellant with a cellular
telephone, but the appellant made the monthly payments for the use of the telephone. The appellant
stated that occasionally Hargrove gave him Lortab pills to sell, or Hargrove purchased Oxycontin
pills from the appellant at a discount to resell.

       Agent Bill Ostermann testified that he worked for the Marshall County Sheriff’s Department


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but was assigned to work as an agent for the 17th District Drug Task Force. Agent Ostermann stated
that on October 3, 2003, he accompanied Agent Miller to conduct an interview of the appellant. At
the beginning of the interview, Agent Miller advised the appellant of his Miranda rights, and the
appellant signed a written waiver of his rights.

        The appellant told the agents about his involvement in drug activity. The appellant recounted
that in 2000, he went to the Vanderbilt Pain Management Clinic where Dr. Chung prescribed
Oxycontin pills to treat pain relating to the appellant’s back injury. The appellant became addicted
to the pills. In January 2002, the appellant began selling forty milligram Oxycontin pills for ten
dollars each. He listed his customers for the agents. In 2003, the appellant began selling eighty
milligram Oxycontin pills for fifty dollars each, forty milligram Oxycontin pills for twenty-five
dollars each, and twenty milligram Oxycontin pills for twelve dollars each. The appellant opined
that he had made $40,000 to $50,000 profit from pill sales since 2002.

        The appellant also provided the names of the customers to whom he sold in 2003. Among
the names on the list were Little, Hargrove, and Robert Tankersley. The appellant told the agents
that he sold a forty milligram Oxycontin pill to Tankersley for twenty-five dollars cash just fifteen
minutes prior to his arrest. When the appellant was arrested, police discovered twenty-five dollars
in cash on his person. The appellant stated that Hargrove gave him money to help him purchase a
vehicle. The appellant was repaying Hargrove with money and pills.

        Donna Flowers, a forensic chemist with the TBI crime laboratory, testified that she received
four pills for forensic testing relating to the instant case. After testing, she determined that each pill
contained forty milligrams of oxycodone, brand name Oxycontin, a Schedule II controlled substance.
The pills were sustained release or time release tablets.

        The appellant testified that on November 13, 2002, he lived at 803 Marshall Street, and he
worked as a mechanic. He kept “junk” cars at his home to repair and then sell. Additionally, the
appellant received a Social Security disability check. In November 2003, the appellant was under
the care of Doctors Curtis Buchheit and Frederick Wade. Dr. Buchheit had prescribed Oxycontin,
Percocet, and Soma for the appellant.

       On November 13, Little and another man came to see the appellant. Two other men, Bob
Davis and Jim Reed, were already at the appellant’s residence. Little told the appellant that his car
had been overheating. The appellant went outside to look at Little’s vehicle. While the appellant
looked under the hood of Little’s vehicle, Little spoke with Davis. The appellant stated that no one
asked him for drugs, he did not give anyone drugs, and he did not see a drug exchange while Little
was at his residence.

       The appellant testified that a few days after he was arrested, he called his wife and asked if
she could arrange for him to receive his medication in jail. Shortly thereafter, Agents Miller and
Ostermann came to speak with the appellant. The appellant believed that his wife had called them
about his medication. The agents asked if the appellant would like to make a statement, and he


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declined, stating that he only wanted to talk about his medication. The appellant denied that he
confessed to selling drugs and further denied providing a list of his customer’s names.

        Based upon the foregoing evidence, the appellant was convicted of selling a Schedule II
controlled substance, oxycodone. He was designated a Range III persistent offender and received
a ten-year sentence. On appeal, the appellant challenges the sufficiency of the evidence and the
denial of probation.

                                             II. Analysis

                                   A. Sufficiency of the Evidence

        The appellant first complains that the evidence was insufficient to establish that he sold
oxycodone, specifically alleging that the proof against him was circumstantial and did not exclude
other possible theories except that of guilt. On appeal, a jury conviction removes the presumption
of the appellant’s innocence and replaces it with one of guilt, so that the appellant carries the burden
of demonstrating to this court why the evidence will not support the jury’s findings. See State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier
of fact could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

        Accordingly, on appeal, the State is entitled to the strongest legitimate view of the evidence
and all reasonable inferences which may be drawn therefrom. See State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983). In other words, questions concerning the credibility of witnesses and 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, and not the appellate courts. See State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1990).

        It is well-established that a guilty verdict can be based upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d
389, 292-93 (Tenn. Crim. App. 1999). Moreover, while a guilty verdict may result from purely
circumstantial evidence, in order to sustain the conviction the facts and circumstances of the offense
“must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
[appellant].” State v. Crawford, 470 S.W.2d 610, 612 (Tenn. 1971).

        Black’s Law Dictionary 577 (7th ed. 1999) defines direct evidence as “[e]vidence that is based
on personal knowledge or observation and that, if true, proves a fact without inference or
presumption.” Direct evidence is also considered to be “[a] witness’s statement that he or she
perceived a fact in issue by one of the five senses, or that the witness was in a particular physical or
mental state.” Id. at 579. Additionally, we note that mental states are most commonly proven by
circumstantial evidence, with the trier of fact making inferences from attendant circumstances. See
State v. Jeffrey Antwon Burns, No. M1999-01830-CCA-R3-CD, 2000 WL 1520261, at *3 (Tenn.
Crim. App. at Nashville, Oct. 13, 2000). On appeal, the appellant admits that the evidence against


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him is “partially circumstantial.” Yet, he argues that “the facts and circumstances of [his] mental
state are not so closely interwoven and connected that a conviction will stand.”

         The appellant was convicted of knowingly selling oxycodone, a controlled substance. See
Tenn. Code Ann. §§ 39-17-417(a)(3), -408(b)(1)(N) (2003). The evidence against the appellant at
trial was strong. Agent George, who was present during the offense, testified that he saw Little
request pills from the appellant. The appellant obtained the pill bottle, dispensed four pills, and
handed the pills to Little. Little gave the appellant sixty dollars for the pills, which money the
appellant accepted. Testing revealed that each of the pills contained forty milligrams of oxycodone,
a Schedule II controlled substance. From the foregoing, we conclude that a reasonable jury could
have determined that the appellant knowingly sold a controlled substance. Therefore, the evidence
is sufficient to sustain the appellant’s conviction.

                                                 B. Sentencing

        As his final issue, the appellant contends that the trial court erred in denying his request for
probation. Appellate review of the length, range or manner of service of a sentence is de novo.
See Tenn. Code Ann. § 40-35-401(d) (2003). In conducting its de novo review, this court considers
the following factors: (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; (5) evidence and information
offered by the parties on enhancement and mitigating factors; (6) any statement by the appellant in
his own behalf; and (7) the potential for rehabilitation or treatment. See Tenn. Code Ann. §§ 40-35-
102, -103, -210 (2003); see also State v. Ashby, 823 S.W.2d 166, 168 (Tenn. 1991). The burden is
on the appellant to demonstrate the impropriety of his sentence. See Tenn. Code Ann. § 40-35-401,
Sentencing Commission Comments. Moreover, if the record reveals that the trial court adequately
considered sentencing principles and all relevant facts and circumstances, this court will accord the
trial court’s determinations a presumption of correctness. Id. at (d); Ashby, 823 S.W.2d at 169.

         Initially, we note that while the appellant couches his argument in terms of the trial court’s
denial of his request for probation, we can find no such request in the record. Regardless, at the time
the appellant was sentenced, an offender was eligible for probation if the sentence actually imposed
was eight years or less. See Tenn. Code Ann. § 40-35-303(a) (2003).2 Moreover, an appellant who
is an especially mitigated or standard offender convicted of a Class C, D, or E felony is presumed
to be a favorable candidate for probation. See Tenn. Code Ann. § 40-35-102(6). The appellant was
sentenced as a Range III persistent offender to ten years. Therefore, he was not eligible for
probation. This issue is without merit.




         2
             In 2005, Tennessee Code Annotated section 40-35-303(a) was amended to provide that an offender is
eligible for probation if the sentence imposed is ten years or less. The amendment “shall apply to sentencing for
criminal offenses committed on or after June 7, 2005.” Id., Sentencing Commission Comments.

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                                 III. Conclusion

Finding no error, we affirm the judgment of the trial court.


                                              ___________________________________
                                              NORMA McGEE OGLE, JUDGE




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