           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  Assigned on Briefs July 23, 2014

             STATE OF TENNESSEE v. ELMER HERBERT SIMPSON

                     Appeal from the Criminal Court for Hawkins County
                            No. 12CR3     John F. Dugger, Judge


                      No. E2013-02336-CCA-R3-CD - Filed August 5, 2014


The defendant, Elmer Herbert Simpson, appeals his Hawkins County Criminal Court jury
convictions of possession of a Schedule III drug with intent to deliver, see T.C.A. § 39-17-
417(a)(4), (d)(1), and maintaining a dwelling where controlled substances are kept or sold,
see id. § 53-11-401(a)(5), both Class D felonies. On appeal, the defendant challenges the
sufficiency of the convicting evidence and the propriety of his effective three-year sentence.
We affirm the judgments of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER, J., and J OE H. W ALKER, III, S P. J., joined.

John S. Anderson, Rogersville, Tennessee, for the appellant, Elmer Herbert Simpson.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; C. Berkeley Bell, Jr., District Attorney General; and Alex Pearson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

              At trial, Hawkins County Sheriff’s Department Detective Jeff Hilton testified
that on March 20, 2011, he received a call to assist Lieutenant Chad Gillenwater in an
investigation underway on Horton Lane1 in Church Hill. Detective Hilton found Lieutenant
Gillenwater talking with two individuals who were inside a parked vehicle. As a result of
that conversation, the officers went to the front door of the trailer home nearby and knocked.
The defendant came to the door, and the officers explained that they had received

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           The street was later referred to as “Hord Lane” in the transcript of the evidence.
information that “Loritabs” were being sold from the residence. Detective Hilton testified
that the defendant denied the allegation and that the defendant consented to the officers’
entering and searching the trailer. Detective Hilton found “Loritabs hidden in the freezer.”
The tablets were in bottles that bore no prescription labels.

                The officers arrested the defendant and transported him to the jail. After being
advised of his rights and signing a written waiver, the defendant provided a statement in
which he admitted that Roy Junior Gibson called the defendant to inquire about purchasing
Loritabs, that the defendant told Mr. Gibson that he had some Loritabs he would sell to Mr.
Gibson, and that Mr. Gibson subsequently came to the defendant’s home. In his statement,
the defendant said that he gave Mr. Gibson four Loritabs and that Mr. Gibson started to go
to his vehicle to get the purchase money from a passenger in Mr. Gibson’s vehicle, but when
Mr. Gibson opened the defendant’s front door, he saw the blue lights of the sheriff’s
vehicles. Mr. Gibson then put the pills the defendant had given him in the defendant’s
freezer. The defendant said that five minutes later an officer knocked on his door. He
admitted that he gave the officer permission to search his house. He further admitted that he
had stolen the Loritabs from his sister. The defendant said that when he took the pills from
his sister’s house, he had no intent to sell them; rather, he said, Mr. Gibson talked him into
selling some of them.

               The tablets obtained from the defendant’s freezer were sent to the Tennessee
Bureau of Investigation (“TBI”) for analysis. The defendant stipulated the admissibility of
the analysis report which showed that the 15 tablets submitted contained dihydrocodeinone,
a Schedule III controlled substance.

                Elizabeth Goan testified that, on March 20, 2011, she and her husband-to-be
went with Roy Gibson to the defendant’s trailer in Church Hill to “pick up some pills.”
When they arrived, she and her husband-to-be waited in the vehicle while Mr. Gibson went
into the trailer. While they waited, Lieutenant Gillenwater arrived, and Ms. Goan told him
what was occurring at the time.

               Hawkins County Sheriff’s Department Lieutenant Chad Gillenwater testified
that on March 20, 2011, he saw a “vehicle parked in the middle of the roadway on Hord
(phonetic) Lane trailer park . . . with the headlights on.” Lieutenant Gillenwater drove to the
vehicle and found passengers but no driver inside. As a result of conversation with the
passengers, he and Detective Hilton approached the defendant’s residence, knocked, and
were admitted into the residence by the defendant, who consented to the officers’ searching
the residence. Lieutenant Gillenwater saw Detective Hilton find and retrieve pill bottles from
the defendant’s freezer. Lieutenant Gillenwater testified that, after he and Detective Hilton
took the defendant to the sheriff’s office and obtained a waiver of rights from the defendant,

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the defendant gave an oral statement which the lieutenant transcribed and the defendant
signed.

             On cross-examination, Lieutenant Gillenwater said he was unaware that the
defendant had any difficulty reading and writing. The interview was not tape recorded.

              TBI Special Agent Forensic Scientist Michael Bleakley testified that the 15
tablets he received for analysis from the Hawkins County Sheriff’s Department in the
defendant’s case contained “Dihydrocodeinone, or Hydrocodone . . . Loritab is a brand
name.”

              The State rested.

                The defendant called as a witness on his behalf Loretta Brown who testified
that she is the defendant’s sister and that the Loritabs in question were originally hers before
the defendant “come [sic] in and stole them.” She said she was not at home when he stole
the pills but that he called her later and told her “when [she] got some gas [she] could come
back and get them.”

              The defendant testified that he took the pills from Ms. Brown but had no intent
to sell them. He said he took the pills to medicate his pain from his 2010 ankle and back
fractures.

               The defendant denied giving consent for the officers to search his residence on
March 20, 2011. He said he told them they could “walk through and look in plain sight.”
He denied making the statement that Detective Hilton read into evidence. He said he had
difficulty reading and writing and was unable to read the statement. The defendant testified
that he “did not say what’s in that statement.” He said he never had any intent to sell the
drugs and that he told “Junior Gibson [he] was not selling them to nobody, that [he] was
giving them back to [his] sister.” The defendant denied that Detective Hilton came into his
residence until after he was arrested, and he denied mentioning any money to the officers.
He stated that he had the Loritabs on his kitchen counter, and after the arrival of the deputies
was discovered, Mr. Gibson put the pills in the freezer.

              The defendant admitted that Mr. Gibson had called him on March 20, 2011,
and asked whether the defendant had any pills to sell. The defendant said he told Mr. Gibson
that the only pills he had were his sister’s and that he was returning them to her. The
defendant said that he thought Mr. Gibson was bringing some people to his trailer who might
offer to purchase the trailer, which was for sale. The defendant testified that, without his
knowledge, Mr. Gibson, after seeing the officers outside, put the pills in the freezer. The

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defendant said he did not know that Mr. Gibson had them in his possession and that Mr.
Gibson must have taken them from the counter, adding, “[H]e’s stole off me before.” The
defendant acknowledged that he signed a “form” after he was advised of his rights but denied
making the statement entered into evidence, saying, “The only statement I give [sic] them I
told them I was not selling no pills to nobody. I have not priced no pills because I don’t have
education and I don’t do that garbage.” The defendant said he signed the statement because
the officer “told [him] to.”

              Roy Junior Gibson testified for the State in rebuttal. He denied that he had ever
stolen from the defendant. He testified that when he went to the defendant’s residence on
March 20, 2011, they discussed the pills that the defendant had gotten from his sister and his
niece, and the defendant went to his truck to retrieve the pills. The defendant asked Mr.
Gibson whether “the people [Mr. Gibson] was with would buy them off of him.” Mr. Gibson
responded that the defendant would have to ask the people, and when Mr. Gibson started out
the door of the trailer, he saw the police and informed the defendant of their presence. Mr.
Gibson denied having or hiding the pills.

               On cross-examination, Mr. Gibson testified that he went to the defendant’s
trailer because the defendant was a friend of his; Mr. Gibson intended to ask the defendant
to allow him to stay the night at the trailer. Mr. Gibson said the defendant denied this
request. Mr. Gibson said that, at first, he told the defendant that Mr. Gibson’s passengers
were interested in buying the defendant’s trailer, which was for sale at the time. He stated
that no one gave the defendant money and that the defendant did not give any pills to him.

              On re-direct examination, Mr. Gibson admitted that the purpose in going to the
defendant’s residence was to get pills and that the defendant was aware of that. On re-cross
examination, Mr. Gibson testified that the defendant had told him on the telephone “that he
had some pills that he wanted to get rid of, that he needed some gas.” Mr. Gibson stated that
he did not remember whether he had told Lieutenant Gillenwater in advance that he would
be at the defendant’s trailer at a certain time.

               The defendant took the stand again and denied conversing with Mr. Gibson
about selling pills. He denied any intent to sell pills. On cross-examination, he branded Mr.
Gibson “a liar. He’s been a liar all his life.”

                                I. Sufficiency of the Evidence

               In the defendant’s first issue, he challenges the sufficiency of the evidence. He
includes in this issue a claim that the trial court erred by denying his motion for judgment of
acquittal made following the close of the State’s case-in-chief; however, he is procedurally

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barred from framing the sufficiency issue in this manner. Following the close of the State’s
proof, the defendant moved for a judgment of acquittal which the trial court denied. The
defendant then offered proof. In this situation, the defendant has waived his right to appeal
the denial of this motion. See State v. Mathis, 590 S.W.2d 449, 453 (Tenn. 1979); see also
State v. Johnson, 762 S.W.2d 110, 121 (Tenn. 1988); State v. Ball, 973 S.W.2d 288, 292
(Tenn. Crim. App. 1998). That being clarified, we now review the sufficiency of all the
evidence presented in the case.

                When an accused challenges the sufficiency of the evidence, the appellate court
considers the evidence in the light most favorable to the prosecution to determine whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt, Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979),
regardless whether the conviction is based upon direct evidence, circumstantial evidence, or
a combination of direct and circumstantial evidence, State v. Winters, 137 S.W.3d 641,
654-55 (Tenn. Crim. App. 2003). Especially inimical to the defendant’s claim is the
well-rooted axiom that the appellate court neither re-weighs the evidence nor substitutes its
inferences for those drawn by the trier of fact. Winters, 137 S.W.3d at 655. Also, the
credibility of the witnesses, the weight and value of the evidence, and all other factual issues
raised by the evidence are resolved by the trier of fact. State v. Cabbage, 571 S.W.2d 832,
835 (Tenn.1978). In reviewing the sufficiency of the evidence, the appellate court affords
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.
Id.

              “It is an offense for a defendant to knowingly . . . [p]ossess a controlled
substance with intent to . . . deliver . . . the controlled substance.” T.C.A. § 39-17-417(a)(4).
Additionally, “[i]t is unlawful for any person . . . [k]nowingly to keep or maintain any . . .
dwelling, building, . . . [,] or other structure or place that is . . . used for keeping or selling
[controlled substances].” T.C.A. § 53-11-401(a)(5).

               In the present case, the defendant is much aggrieved that he was charged with
and convicted of these two offenses. He maintained in his trial testimony that he did not
intend to sell any controlled substances, and he vigorously challenged the credibility of the
State’s witnesses who contradicted this claim. As such, he put his case before the jury, but
when the evidence believed by the jury is sufficient to establish the elements of the offenses,
the appellate court may not disturb the jury’s findings. Such is the case here.

               The evidence as accredited by the jury established that the defendant acquired
the pills – Schedule III controlled substances – by stealing them from his sister and that he
proposed selling some of them to Mr. Gibson and/or his associates as a means of raising gas

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money. Through this evidence, the Stated showed that the defendant knowingly (1)
possessed the contraband with intent to deliver the same and (2) maintained a dwelling that
is used for keeping or selling controlled substances. Thus, the evidence supports the
convictions in this case.

                                     II. Sentence Length

              In his next issue, the defendant challenges the concurrent three-year sentences
imposed for both of his Class D felony convictions. He claims that the trial court erroneously
enhanced the sentence in the absence of any prior felony convictions and that the court
neglected to apply mitigating factors.

                In the sentencing hearing, the defendant argued that his sentence should be
mitigated because the “defendant’s criminal conduct neither caused nor threatened serious
bodily injury”; because “substantial grounds exist tending to excuse or justify the defendant’s
criminal conduct, though failing to establish a defense” based upon the defendant’s serious
prior injuries and the pain associated therewith; because the “defendant was motivated by a
desire to provide necessities for” himself, based upon the defendant’s having no gas for his
vehicle and his possession of only four dollars at the time of his arrest; and because the
“defendant, although guilty of the crime, committed the offense under such unusual
circumstances that it is unlikely that a sustained intent to violate the law motivated the
criminal conduct,” based upon the conviction offenses’ being the defendant’s only felony
convictions; and because of the defendant’s coronary illness. See T.C.A. § 40-35-113 (1),
(3), (7), (11), (13).

               The court recited and reviewed the principles of and considerations for
sentencing. The court reviewed the presentence report; noted the defendant’s prior
convictions, including two for driving under the influence, two for passing worthless checks,
and one for public intoxication; and found that the defendant’s sentence should be enhanced
because he had “a previous history of criminal convictions or criminal behavior, in addition
to those necessary to establish the appropriate range.” See id. § 40-35-114(1). The court also
applied as an enhancement factor that the defendant was a leader in the commission of the
offense. See id. § 40-35-114(2). The trial court declined to apply any mitigating factors.
The court’s findings resulted in a mid-range sentence of three years on each count to be
served in incarceration.

             Our standard of review of the trial court’s sentencing determinations in this
case is whether the trial court abused its discretion, but we apply a “presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of the
purposes and principles of our Sentencing Act.” State v. Bise, 380 S.W.3d 682, 707 (Tenn.

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2012).

               Trial courts must still consider the principles of sentencing enumerated in
Tennessee Code Annotated section 40-35-210(b), see id., 380 S.W.3d at 698 n.33 (citing
T.C.A. § 40-35-210(b)), and must, as required by statute, consider “[t]he potential or lack of
potential for the rehabilitation or treatment of the defendant . . . in determining the sentence
alternative or length of a term to be imposed,” T.C.A. § 40-35-103(5). Despite the wide
discretion afforded the trial court under the current Sentencing Act, trial courts are still
required to “place on the record, either orally or in writing, what enhancement or mitigating
factors were considered, if any, as well as the reasons for the sentence, in order to ensure fair
and consistent sentencing.” Bise at 706 n.41 (citing T.C.A. § 40-35-210(e)).

             In the present case in which the defendant is a Range I offender, the range of
punishment for both convictions is not less than two years and not more than four years.
T.C.A. § 40-35-112(a)(4).

              The presumption of reasonableness holds in the present case. The court
emphasized the sentencing principles and considerations. The enhancement factor for the
defendant’s previous history of criminal convictions or behavior alone justifies the one-year
enhancement for both sentences.2 Contrary to the defendant’s claim, the use of factor (1) is
not dependent upon the previous criminal history’s being composed of felonies;
misdemeanors may suffice. State v. Carter, 908 S.W.2d 410, 413 (Tenn. Crim. App. 1995).
Nothing in the trial court’s findings that led to its rejection of mitigating factors undercuts
the presumption of reasonableness.

                                             III. Conclusion

                As a consequence of our review, we affirm the judgments of the trial court.




         2
          The defendant did not challenge the applicability of factor (2), that the defendant was a leader in
the commission of the offense “involving two (2) or more criminal actors,” see T.C.A. § 40-35-114(2), and
the parties did not brief the applicability of factor (2). We simply observe, without holding either way, that
the “offense” being sanctioned was for “possession” and that the defendant was the only actor in possession
of the contraband. As such, one may reasonably question whether this offense involved two or more criminal
actors. The resolution of the issue is unnecessary because, under the current sentencing regime, “a trial
court’s misapplication of an enhancement or mitigating factor does not remove the presumption of
reasonableness from its sentencing decision,” Bise, 380 S.W.3d at 709, and as we have noted, the use of
factor (1) amply undergirds the enhancement of the sentences to three years.

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      _________________________________
      JAMES CURWOOD WITT, JR, JUDGE




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