        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 5, 2014

                    STATE OF TENNESSEE v. DARYL BOBO

                  Appeal from the Criminal Court for Shelby County
                         No. 11-03987   Chris Craft, Judge


                No. W2013-02008-CCA-R3-CD - Filed August 13, 2014


Appellant stands convicted of possession with intent to sell 0.5 grams or more of cocaine in
a drug-free school zone, a Class A felony, and possession with intent to sell 0.5 ounce or
more of marijuana in a drug-free school zone, a Class D felony. The trial court sentenced
appellant as a Range III, persistent offender to sixty years for his cocaine conviction and
twelve years for his marijuana conviction, to be served concurrently. On appeal, appellant
argues that the evidence at trial was insufficient to support his convictions. Following our
review of the briefs, the record, and the applicable law, we affirm the judgments of the trial
court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
A LAN E. G LENN, JJ., joined.

Claiborne Ferguson (on appeal); and Samuel Perkins (at trial), Memphis, Tennessee, for the
appellant, Daryl Bobo.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Rachel Russell, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       This case concerns the discovery of thirty-seven small bags of marijuana and six rocks
of crack cocaine in appellant’s possession while appellant was within 1000 feet of a school.
Appellant was indicted for possession with intent to sell 0.5 grams or more of cocaine in a
drug-free school zone (count 1), possession with intent to deliver 0.5 grams or more of
cocaine in a drug-free school zone (count 2), possession with intent to sell 0.5 ounce or more
of marijuana in a drug-free school zone (count 3), and possession with intent to deliver 0.5
ounce or more of marijuana in a drug-free school zone (count 4). Appellant’s trial began on
April 1, 2013.

                                           I. Facts

        Richard Phillips, a detective with the Memphis Police Department Organized Crime
Unit, testified that on March 4, 2010, he was patrolling a “hotspot” for crime and drug
transactions located between a BP station and a Burger King when he saw appellant talking
to two other males. Detective Phillips knew one of the other males due to prior interactions.
He observed appellant and one of the other individuals conduct a “hand-to-hand transaction,”
referring to a drug transaction. Detective Phillips explained that he pulled into the parking
lot of the BP station and approached the three men; however, appellant began walking away
from the other two men toward a nearby Kroger. While Detective Phillips spoke with the
two remaining men, he radioed other officers to inform them of the situation and described
appellant’s appearance. While Detective Phillips checked for arrest warrants and patted-
down the two men in his presence, appellant “circled wide around [Detective Phillips] and
went all the way behind [him], and then came back up over on the Burger King lot.”
Detective Phillips testified that he updated his partners regarding appellant’s location and that
the other officers arrived as appellant entered the Burger King. The other officers followed
appellant inside.

        Detective Phillips explained that he did not initially pursue appellant and instead
remained with the two other suspects because he wanted to wait for the other officers to
arrive in case appellant had a weapon or attempted to flee. Regarding his observation of the
hand-to-hand transaction, Detective Phillips stated that the key indicators that a drug
transaction was occurring were that appellant looked over his shoulder while he was talking
to the other two men, the men stood close together, and the two men exchanged something
in their hands. Detective Phillips testified that while he could not see exactly what was
exchanged, based on his fourteen years of experience, those actions were indicative of a drug
transaction. Detective Phillips explained that it was uncommon for officers to see the drugs
themselves during a transaction “on the street level,” meaning that the narcotics are being
sold to the final consumer or user.

       Detective Phillips testified that he saw the other officers bring appellant out of the
Burger King and that he saw the six rocks of crack cocaine and thirty-seven baggies of
marijuana confiscated from appellant. He stated that the items were inside a black bag.
Detective Phillips stated that based on his experience, drugs that are packaged for resale are
normally broken down into small amounts, like small rocks of crack cocaine or small baggies
of marijuana. Detective Phillips also explained that there was a pawn shop between the

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Burger King where appellant was apprehended and Northwest Prep Academy, a Memphis
city school.1

        During cross-examination, Detective Phillips agreed that when he first saw appellant,
appellant had his back to Detective Phillips. Detective Phillips conceded that he did not
arrest the other two individuals involved and that he did not know if they possessed any
drugs. Detective Phillips also conceded that he did not know if they bought drugs from or
sold drugs to appellant and that he had observed a transaction that he only suspected was a
narcotics transaction. Detective Phillips agreed that he did not know when appellant bought
the drugs in question.

        Gilbert Goodwin, a detective with Memphis Police Department Organized Crime
Team, stated that on March 4, 2010, he responded to Detective Phillips’ call regarding
appellant. Detective Goodwin explained that he and two other detectives arrived at the
Burger King and saw appellant enter the restaurant. They followed appellant inside.
Appellant immediately entered the restroom, and the detectives followed appellant into the
facility. Detective Goodwin explained that after entering the restroom, he observed appellant
pull a black plastic bag out of his right front pocket while standing at a urinal. One of the
other detectives confiscated the bag and handed it to Detective Goodwin. Detective
Goodwin stated that the odor of marijuana emanated from the bag, so he opened the bag and
saw marijuana inside. Detective Goodwin explained that he gave the bag to the other
detectives and handcuffed appellant before removing him from the restroom. The detectives
then radioed Detective Phillips to join them in the Burger King parking lot. After Detective
Phillips arrived, the detectives searched appellant, finding $376; placed the confiscated
narcotics on the hood of Detective Phillips’ car; and put appellant in the back seat of
Detective Phillips’ car. Detective Goodwin explained that the black bag taken from appellant
contained thirty-seven bags of marijuana and six rocks of crack cocaine.

       During cross-examination, Detective Goodwin conceded that he did not know
appellant personally and that he did not know from where the money in appellant’s
possession originated.

        Michael Gibbs, Jr., a patrolman with the Memphis Police Department, testified that
on March 4, 2010, he was working with the Organized Crime Unit and that he responded to
Detective Phillips’ broadcast regarding appellant. Officer Gibbs explained that he saw
appellant enter the Burger King and that he and the other two officers followed appellant into
the restaurant. They found appellant in the Burger King restroom standing next to a urinal.


         1
             Because chain of custody is not an issue on appeal, we have omitted all testimony regarding that
issue.

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As they watched appellant, appellant removed a black bag from his left pocket. 2 Officer
Gibbs stated that he then detained appellant to prevent appellant from disposing of any
evidence in the urinal. Officer Gibbs recalled that he handed the black bag to Officer
Goodwin and then placed appellant in handcuffs. Officer Gibbs testified that he and the
other two officers then escorted appellant outside, patted appellant down, seized $376 in
cash, and examined the contents of the black bag, finding thirty-seven bags of marijuana and
six rocks of crack cocaine.

       Officer Gibbs explained that there were often problems with drugs near Northwest
Prep Academy because “dealers like to sit right there and sell the dope to the kids as they
come out of school.” He stated that the drugs were usually “packaged proportionally for the
kids, small quantities, nothing large because the kids can’t afford that.” Officer Gibbs
explained that when he was working undercover buying drugs, he normally bought small
quantities during each transaction. He also stated that from his experience as an undercover
officer, it was uncommon for crack cocaine users to use both crack cocaine and marijuana
and that if crack cocaine users had marijuana, it was usually “seeds and residue, nothing.”
Officer Gibbs also asserted that it was uncommon for a crack cocaine user to possess both
crack and large amounts of money at the same time and that it was uncommon for a crack
user to possess multiple crack cocaine rocks at one time.

       During cross-examination, Officer Gibbs conceded that he never saw appellant speak
to anyone else prior to appellant’s arrest or participate in a narcotics transaction.

      John Scott, Jr., an agent with the Tennessee Bureau of Investigation Nashville Crime
Laboratory, testified that he examined and tested the narcotics found on appellant and
determined that the items were 1.2 grams of cocaine base, also referred to as crack cocaine,
and 33.5 grams of marijuana.

       Jeffrey Allen Garey, an officer with the Memphis Police Department Crime Scene
Investigation Unit, testified that he measured the distances between Northwest Prep Academy
and the relevant locations in this case. Officer Garey created a diagram of the numerous
measurements that he took at the scene, which was entered as an exhibit. Of particular
relevance to this case were the following measurements: (1) the distance from the corner of
Cleveland Street and Poplar Avenue, where the BP was located, to the entrance of the school
was approximately 700 feet and (2) the distance from the half-way point between Burger
King and the BP station, where the transaction occurred, to the entrance of the school was
approximately 680 feet.


        2
        We recognize that there is an inconsistency in the officers’ testimonies regarding the location from
which appellant retrieved the black bag.

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      Appellant and the State stipulated that Northwest Prep Academy was a public
secondary school pursuant to Tennessee Code Annotated section 39-17-432.

        After hearing the foregoing evidence, the jury convicted appellant as charged. The
trial court merged count one with count two and merged count three with count four;
therefore, appellant stands convicted of one count of possession with intent to sell 0.5 grams
or more of cocaine in a drug-free school zone, a Class A felony, and one count of possession
with intent to sell 0.5 ounce or more of marijuana in a drug-free school zone, a Class D
felony. The trial court sentenced appellant as a Range III, persistent offender to sixty years
for his cocaine conviction and twelve years for his marijuana conviction, to be served
concurrently.

                                         II. Analysis

        On appeal, appellant argues that the evidence at trial was insufficient to support his
convictions. Specifically, he argues that the officers’ testimonies were either too generalized
or were incorrect and that Detective Phillips’ testimony was based on mere suspicion. The
State responds that the evidence at trial was sufficient to sustain appellant’s convictions. We
agree with the State.

       The standard for appellate review of a claim challenging the sufficiency of the State’s
evidence 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 (1979) (citing Johnson
v. Louisiana, 406 U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354
S.W.3d 718, 729 (Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant
must demonstrate that no reasonable trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of
review is identical whether the conviction is predicated on direct or circumstantial evidence,
or a combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977).

       On appellate review, “‘we afford the prosecution the strongest legitimate view of the
evidence as well as all reasonable and legitimate inferences which may be drawn
therefrom.’” Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn.
2010)); State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d
832, 835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and
the weight and value to be given the evidence, as well as all factual disputes raised by the
evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

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has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

       To sustain a conviction for possession with intent to sell 0.5 grams or more of cocaine
in a drug-free school zone, the State must prove beyond a reasonable doubt that appellant
knowingly “[p]ossess[ed] a controlled substance with intent to . . . sell the controlled
substance.” Tenn. Code Ann. § 39-17-417(a)(4). In that regard, possession of cocaine “is
a Class B felony if the amount involved is point five (.5) grams or more.” Tenn. Code Ann.
§ 39-17-417(b)(1). However, when a defendant possesses cocaine with intent to sell 0.5
grams or more “on the grounds or facilities of any school or within one thousand feet (1,000')
of the real property that comprises a public or private . . . secondary school, . . . [the
defendant] shall be punished one (1) classification higher than is provided in §
39-17-417(b)-(i) for such violation.” Tenn. Code Ann. § 39-17-432(b)(1).

        To sustain a conviction for possession with intent to sell 0.5 ounces or more of
marijuana in a drug-free school zone, the State must prove beyond a reasonable doubt that
appellant knowingly “[p]ossess[ed] a controlled substance with intent to . . . sell the
controlled substance.” Tenn. Code Ann. § 39-17-417(a)(4). In that regard, possession of
marijuana “containing not less than one-half ( ½ ) ounce (14.175 grams) nor more than ten
pounds (10 lbs.) (4535 grams) of marijuana . . . is a Class E felony.” Tenn. Code Ann. § 39-
17-417(g)(1). However, when a defendant possesses marijuana with intent to sell 0.5 grams
or more “on the grounds or facilities of any school or within one thousand feet (1,000') of the
real property that comprises a public or private . . . secondary school, . . . [the defendant]
shall be punished one (1) classification higher than is provided in § 39-17-417(b)-(i) for such
violation.” Tenn. Code Ann. § 39-17-432(b)(1).

        Viewing the evidence in the light most favorable to the State, the evidence establised
that Detective Phillips observed appellant engage in a hand-to-hand transaction that was
indicative of a narcotics sale. Officer Gibbs and Detective Goodwin both testified that they
observed appellant enter the Burger King and observed appellant take a black bag from his
pants pocket while standing at a urinal in the Burger King restroom. All three officers
testified that the bag contained thirty-seven baggies of marijuana and six rocks of crack
cocaine. Officer Gibbs also explained that based on his experience, crack cocaine users did

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not usually possess multiple rocks of crack cocaine and did not normally possess large
amounts of marijuana when the narcotics were for personal use only. In addition to the
seized narcotics, appellant possessed $376 in cash. Finally, Officer Garey testified that the
location in which Detective Phillips originally observed appellant was approximately 680
feet from Northwest Prep Academy. Officer Gibbs testified that there were often problems
with drugs near Northwest Prep Academy because “dealers like to sit right there and sell the
dope to the kids as they come out of school.” Given this evidence, a rational jury could have
found the essential elements of possession with intent to sell 0.5 grams or more of cocaine
in a drug-free school zone and possession with intent to sell 0.5 ounce or more of marijuana
in a drug-free school zone beyond a reasonable doubt. See Jackson, 443 U.S. at 319 (citing
Johnson, 406 U.S. at 362).

        Appellant specifically argues that the officers’ testimonies were either too generalized
or were incorrect and that Detective Phillips’ testimony was based on mere suspicion. In
doing so, appellant essentially attacks the credibility and veracity of the officers. However,
in a jury trial, questions involving the credibility of witnesses and the weight and value to be
given the evidence, as well as all factual disputes raised by the evidence, are resolved by the
jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990). As such, we will not substitute our own inferences drawn
from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because there was sufficient evidence to support
appellant’s convictions, and he is without relief as to this issue.

                                       CONCLUSION

      Based on the parties’ briefs, the record, and the applicable law, we affirm the
judgments of the trial court.




                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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