        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE                        FILED
                                                              February 25, 2000
                       DECEMB ER SESSION, 1999
                                                              Cecil Crowson, Jr.
                                                             Appellate Court Clerk

STATE OF TENNESSEE,       )      C.C.A. NO. E1999-00924-CCA-R3-CD
                          )
     Appellee,            )
                          )
                          )      SULLIVAN COUNTY
VS.                       )
                          )      HON. PHYLLIS H. MILLER
JOSEPH JOHN HENRY MORRELL,)      JUDGE
                          )
           Appe llant.    )      (Direct Appe al - Posses sion of a
                                 Weapon in a Penal Institution)




FOR THE APPELLANT:               FOR THE APPELLEE:

GREGORY D. SMITH                 PAUL G. SUMMERS
One Public Sq., Ste. 321         Attorney General and Reporter
Clarksville, TN 37040
                                 ELIZABETH B. MARNEY
                                 Assistant Attorney General
                                 425 Fifth Avenu e North
                                 Nashville, TN 37243-0493

                                 GREELEY W ELLS
                                 District Attorney General

                                 ROBERT H. MONTGOMERY
                                 Assistant District Attorney
                                 P. O. Box 526
                                 Blountville, TN 37617



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION
                                            On July 29, 1998, Joseph John Henry

Morre ll, the defen dant an d appe llant, was convicted by a Sullivan County Jury of

possession of a wea pon in a p enal institutio n, and se ntence d as a R ange II

offender to serve nine (9) years in the Tennessee Department of Corrections. He

raises the follo wing is sues on ap peal.

               1. Wh ether the evidenc e was s ufficient to supp ort the d efend ant’s

               conviction; and

               2. Wh ether the trial court sente nced the de fendant correc tly.

After a thorough review of the record on appeal, we affirm the judgment of the

trial court.



                       FACTUAL BACKGROUND
       On the evening of December 13, 1997, the defendant was an inmate in the

Sullivan County Jail and was being kept alone in a cell that was known as “Tank

II.”. That n ight at arou nd 11:4 0 p.m., O fficer Doo ley of the S ullivan Co unty

Sher riff’s Department went to Tank II to prepare the defendant for a move to a

different cell in order to make space for additional incoming inmates. When

Officer Dooley entered the cell, he found a piece of metal lying on top of the

commode unit. The piece of meta l looked ide ntical to piec es of m etal used to

hold ceiling tiles in place in other pa rts of the jail, but these items were not used

in Tank II. Officer Dooley then searched the defendant’s personal belongings,

which were kept in a p lastic grocery bag , and found a nother similar piece of

metal. The se cond p iece of m etal, which appea red to be identical to the metal

outlet covers used in the jail, had been sharpened as if by filing. There were no

outlet covers in Tank II.        It is undisputed tha t the defendan t did not have

permis sion to ha ve either p iece of m etal in his ce ll.

       The defendant was charged with Possession of a Weapon in a Penal

Institution and, following a July 29, 1998 trial, was found guilty of the charge. At


                                            -2-
the sentencing hearing on September 8, 1998, the state sought to introduce two

prior conviction s in an effo rt to elevate th e defen dant’s se ntencing range. T he

defendant argued that the two convictions were not made final until after he had

committed the instant offense because, although he had pled guilty and been

sentenced for the prior felonies, the judgment forms were not entered until almost

one month after he possessed the weapon in jail. The trial judge rejected the

argume nt and sente nced the de fendant as a Range II m ultiple offender.



                                SUFFICIENCY
       The defendant claims that the state did not establish that the pieces of

metal were “weapons” within the meaning of the statute, and, alterna tively, that

the proof did not support the inference that he possessed the pieces o f metal.

When an appellant challenges the sufficiency of the e videnc e, this c ourt is

obliged to review that challenge according to certain w ell-settled pr inciples. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the Sta te's witnesse s and re solves all co nflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a presumption of innocence, a jury ve rdict rem oves th is

presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn . 1982). H ence, o n appe al, the burd en of pro of rests with Appella nt to

demo nstrate the insufficienc y of the con victing evide nce. Id.

       On appea l, the state is entitled to the strongest legitimate view of the

evidence as we ll as all reasonable and legitimate inferences that may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Where the

sufficiency of the evidence is contested, the relevant question for the reviewing

court is whether any rational trier of fact co uld have found the accused guilty of

every element of the offen se beyo nd a rea sonab le doub t. State v. Harris , 839

S.W.2d 54, 75 (Tenn. 1992); Tenn. R. App. P. 13(e).                In conducting our

evaluation of the convicting evidence, this Court is precluded from reweighing or


                                          -3-
reconsidering the evide nce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim.

App. 1996). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fa ct from circ umsta ntial eviden ce." State v. Matthews, 805

S.W .2d 776, 779 (Tenn. Crim . App. 1990 ).

      The defendant was convicted of section 39-16-201 of the Tennessee

Code. Section 39-16-201 provides:

             (a) It is unlawful for any person to:

             (1) Knowingly and with unlawful intent take, send or
      otherwise cause to be take n into any penal ins titution
      where prisoners are q uartered or u nder custodial
      supervision any weapo ns, amm unition, explosives,
      intoxicants, legend drugs, or any controlled substances
      found in chapter 17, part 4 of this title.

              (2) Knowingly p osse ss an y of the m aterials
      prohibited in subdivision (a)(1) while present in any penal
      institution where prisoners are quartered or under
      custodial supervision without the express written consent
      of the chief administrator of the institution.

             (b) A violation of this section is a Class C felon y.

Tenn. Code Ann. § 3 9-16-20 1. In this case, we find amp le evidence to su pport

the inference that at least the second piece of metal had been in the d efend ant's

possession. Officer Dooley testified that whe n he we nt to the de fendan t’s cell to

move him, the d efenda nt was a lone. The defen dant b ecam e visibly upset when

Officer Doole y told the defendant that he would be changing cells. Furthermore,

although the first piece of metal was found on the back of the commode unit, the

second, sharper piece of metal was found in the defendant’s possessions which

were wrappe d in a groc ery bag. Thus, we find that it is entirely reasonable for the

jury to have concluded that the evidence discovered by Officer Dooley had been

in the defen dant's po ssessio n. See State v. Holbrooks, 983 S.W.2d 697, 702

(Tenn. C rim. App. 199 8)

      W e also find that the jury could have found the piece of metal to be a

“weapon” within the meaning of the statute. There was evidence that the pieces

of metal were taken from other parts of the jail and a ltered to make the m sharpe r.

Indeed, we cannot imagine what purpose, other than as weapons, the pieces of


                                         -4-
metal could possibly have served. Although “weapon” is not specifically defined

in the statute or elsewhere, a commonly accepted definition of “weapon” is “[a]n

instrument of offensive or defen sive com bat . . . .” Black’s Law Dictionary 1593

(6 th ed. 1990). Furthermore, “weapon” is not a technical term which requires legal

research to determine its meaning; in this context, its meaning can be

ascertained by perso n of com mon in telligence . Cf. State v. Black, 745 S.W.2d

302, 30 4 (Ten n. Crim. A pp. 198 7).

This issu e is withou t merit.



                                 SENTENCING
       The defen dant a lso con tends that the trial court erroneously se ntenc ed him

as a Range II multiple offender. Although prior to the commission of the instant

offense the defen dant ha d pled gu ilty to two prior felonies and been sentenced

for those crimes, the judgment forms in the prior cases were not entered until

almost one month after the commission of the instant offense. Thus, argues the

defend ant, the charges were not final, and w ere therefore not “convictions” at the

time of the comm ission of the offense in this case .

       Range II multiple offender status requires a minimum of two but not more

than four prior felo ny convictions within the conviction class, a higher class, or

within the next two lower felony classes. Tenn. Code Ann. § 40-35-106 (a)(1).

The Tennessee Supreme Court determined that " 'prior conviction' means a

conviction that has been adjudicated prior to the commission of the more recent

offense for which sente nce is to be imp osed." State v. B louvett, 904 S.W.2d 111,

113 (Ten n. 1995)(em phasis add ed).

       In this case, the prior convictions used to elevate the defen dant’s

sentencing range had already b een adjudica ted before the defendant committed

the instant offense, because he pled guilty to the prior offenses and was

sentenced over one m onth be fore he c omm itted the insta nt offense .

“Adjudication” is not synonymous with the entry of judgment. Indeed, although

the defendant cites Rule 32(e) of the Tennessee Rules of Criminal Procedure as

authority, the rule provides “[a] judgment of conviction shall set forth the plea, the

verdict or findings, and the adjudication and se ntence .” Tenn . R. Crim . P.


                                         -5-
32(e)(emp hasis added). Thus, the rule itself makes clear that adjudication is

distinct from , and prior to , the entry o f judgm ent. 1

        Furthermore, the defendant’s reliance on State v. B louvett is misplaced.

In Blouvett , the convictions used to enhance the defendant's sentencing range

were part of the same crime spree as the conviction for which the defendant was

being senten ced. 904 S.W .2d at 112 . Both the enhancing convictions and the

conviction for which the defendant was being sentenced were adjudicated on the

same day. Id. Extending the Blouvett holding to apply in this case would thwart

the legislative purpose of section 40-35-106, “a recidivist provision designed to

punish persons who had been previously convicted and then commit new

crimes.” Tenn. Code Ann. § 40-35-106, Sentencing Comm ission Comments.

This issu e is withou t merit.

Accordingly, the judgment of the trial court is AFFIRMED.



                                            ____________________________________
                                            JERRY L. SMITH, JUDGE


CONCUR:



___________________________________
JOSEPH M. TIPTON, JUDGE


___________________________________
DAVID H. WELLES, JUDGE




   1

This court has previously held, in an unpublished opinion, that “”[a] guilty or Alford plea does not
constitute a conviction until the court enters a judgment upon it.” State v. Antoine L. Williams, No. 02-
C-01-9210-CR -00237, 1993 W L 295060, at *1 (Tenn. Crim . App., Jackson, Aug. 4, 1993). How ever,
the facts of that case are inapposite here. In that case, the defendant entered an Alford plea to
burglary. The trial court stated an intention to grant judicial diversion to the defendant, but deferred
the proceedings to await a sentencing report. During the interim, the defendant was indicted and
entered an Alford plea for a d ifferent crim e. The court ultim ately senten ced the defend ant on bo th
charge s, but, followin g a petition fo r a susp ended senten ce, gran ted the de fendan t judicial divers ion.
The s tate appe aled, argu ing that the firs t Alford plea constituted a prior conviction and thus rendered
the defe ndant ine ligible for pretrial dive rsion pur suant to s ection 40 -35-313 of the Te nness ee Co de. A
panel of this court disagreed and affirmed the trial court, because the terms of section 40-35-313
specifically allow the sentencing court to accept a guilty plea and defer the entry of judgment until the
defendant completes probation. Thus, this court reasoned that the section 40-35-313 did not
contemplate a plea without a judgment to be a “conviction” which would bar future diversion. The
statute in this case makes no such allowance.

                                                      -6-
