         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                       Assigned on Briefs October 18, 2000 Session

                   STATE OF TENNESSEE v. ERNEST E. PRIDE

              Appeal as of Right from the Criminal Court for Davidson County
                           No. 99-A-331     Seth Norman, Judge



                    No. M2000-00319-CCA-R3-CD - Filed January 11, 2001


The appellant, Ernest E. Pride, was convicted by a jury in the Davidson County Criminal Court of
one count of tampering with evidence, a class C felony; one count of possession of less than .5 grams
of cocaine with the intent to sell, a class C felony; one count of simple possession of marijuana, a
class A misdemeanor; one count of criminal trespass, a class C misdemeanor; one count of resisting
arrest, a class B misdemeanor; and one count of unlawful possession of drug paraphernalia, a class
A misdemeanor. The trial court sentenced the appellant, as a Range II offender, to the following
terms of incarceration in the Tennessee Department of Correction: eight years for the tampering with
evidence conviction, eight years for the possession of cocaine with intent to sell conviction, eleven
months and twenty-nine days for the possession of marijuana conviction, thirty days for the criminal
trespass conviction, and six months for the resisting arrest conviction. Additionally, the trial court
ordered the appellant to serve all of the sentences concurrently. The trial court entered a verdict of
not guilty for the possession of drug paraphernalia. The appellant raises the following issues for our
review: (1) whether the evidence contained in the record is sufficient to support a finding by a
rational trier of fact that the appellant is guilty beyond a reasonable doubt of possession of less than
.5 grams of cocaine with intent to sell and tampering with the evidence as charged in the indictment;
and (2) whether the trial court imposed excessive sentences for the convictions of tampering with
evidence and possession of less than .5 grams of cocaine with intent to sell. Based 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 Criminal Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which THOMAS T. WOODALL , and
ROBERT W. WEDEMEYER , JJ., joined.

Ralph Newman and Jeffrey A. DeVasher, Nashville, Tennessee, for the appellant, Ernest E. Pride.

Paul G. Summers, Attorney General and Reporter, Russell S. Baldwin, Assistant Attorney General,
and Pamela Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION
                                       I. Factual Background
                On October 31, 1998, at 6:30 a.m., Officer Brian Tomblin and Sergeant Brion DeLap
noticed the appellant, Ernest E. Pride, and three other individuals gathered around the appellant’s
car at the Edgehill housing project in Nashville. The officers were responding to several complaints
about drug trafficking in the area. There were “no trespassing” signs around the area where the
group was gathered. Officer Tomblin had worked in the area for three years and knew that none of
the individuals lived in Edgehill. When the four individuals saw the officers, they immediately
drove away.

                 The officers pursued the group and signaled to the appellant to pull his vehicle over
to the side of the road. The appellant complied. Sgt. DeLap approached the vehicle on the driver’s
side and Office Tomblin approached on the passenger side. Sgt. DeLap asked the appellant for proof
of driver’s license and registration. The appellant reached for the glove compartment where, he
stated, his driver’s license was located. Both of the officers noticed that the appellant kept three of
the fingers of his right hand closed in a fist, but he extended his thumb and index finger in order to
open the glove compartment. When the appellant did so, the officers noticed several white, rock-like
substances that appeared to be crack cocaine in the appellant’s right hand.

                Sgt. DeLap asked the appellant what was in his hand. The appellant put his hand to
his mouth and shoved into his mouth all but one of the “rocks” contained in his hand. One of the
“rocks” fell to the floor of the car. The officers pulled the appellant from the vehicle and ordered
the appellant to spit out the substance. The appellant refused and kept his mouth closed. At some
point, the appellant managed to swallow the rocks. The appellant struggled with the officers and
submitted to arrest only after being subjected to pepper spray.

                Officer Tomblin retrieved the fallen “rock” from the vehicle. He field tested a small
portion of the substance and it tested positive for cocaine. Donna Flowers, a forensic chemist with
the Tennessee Bureau of Investigation, confirmed that the substance was a .05 gram rock of crack
cocaine.

                A jury in the Davidson County Criminal Court convicted the appellant of one count
of tampering with evidence, a class C felony; one count of possession of less than .5 grams of
cocaine with the intent to sell, a class C felony; one count of simple possession of marijuana, a class
A misdemeanor; one count of criminal trespass, a class C misdemeanor; one count of resisting arrest,
a class B misdemeanor; and one count of unlawful possession of drug paraphernalia, a class A
misdemeanor. The trial court sentenced the appellant, as a Range II offender, to the following terms
of incarceration in the Tennessee Department of Correction: eight years for the tampering with
evidence conviction, eight years for the possession of cocaine with intent to sell conviction, eleven
months and twenty-nine days for the possession of marijuana conviction, thirty days for the criminal
trespass conviction, and six months for the resisting arrest conviction. Additionally, the trial court
ordered the appellant to serve all of the sentences concurrently. The trial court entered a verdict of
not guilty for the possession of drug paraphernalia. On appeal, the appellant raises the following
issues for our review: (1) whether the evidence contained in the record is sufficient to support a


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finding by a rational trier of fact that the appellant is guilty beyond a reasonable doubt of possession
of less than .5 grams of cocaine with intent to sell and tampering with the evidence as charged in the
indictment; and (2) whether the trial court erred by imposing excessive sentences for the appellant’s
convictions of tampering with evidence and possession of less than .5 grams of cocaine with intent
to sell.1

                                              II. Analysis
                                    A. Sufficiency of the Evidence
                Initially, we note that the jury, as the trier of fact, resolves all questions concerning
witness credibility and the weight and value to be given the evidence, as well as all factual issues
raised by the evidence; this court makes no such determinations. State v. Pruett,788 S.W.2d 559,
561 (Tenn. 1990). Accordingly, appellate courts will grant the State the strongest legitimate view
of the evidence and all reasonable inferences which may be drawn therefrom. State v. Williams, 657
S.W.2d 405, 410 (Tenn. 1983). Moreover, we will not reweigh or reevaluate the evidence presented
at trial. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). In contrast to the
presumption of innocence an accused enjoys at trial, an appellant bears a presumption of guilt on
appeal. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Therefore, the appellant carries the
burden of demonstrating why the evidence adduced at trial is insufficient to support the jury’s
findings. Id.

               To uphold the appellant’s convictions, we must determine if any reasonable trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). Additionally, a
jury may convict an accused based upon direct evidence, circumstantial evidence, or a combination
of direct and circumstantial evidence. State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App.
1990), overruled on other grounds by State v. Hooper, 29 S.W.3d 1, 9 (Tenn. 2000). However, when
a guilty verdict results from purely circumstantial evidence, 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).

                 In order to sustain a conviction of possession of crack cocaine with intent to sell, the
State needed to prove that the appellant knowingly possessed a controlled substance, in this case
crack cocaine, with the intent to sell that controlled substance. Tenn. Code Ann. § 39-17-
417(a)(4)(1997). The State adduced proof at trial that the appellant did not live in the Edgehill
housing projects. Nonetheless, the police observed the appellant and three others “hanging out” in
the Edgehill area at 6:30 a.m. It was obvious to the police that the individuals were not there on any
legitimate business. See State v. Head, No. 01C01-9806-CC-00263, 1999 WL 343910, at *3 (Tenn.
Crim. App. at Nashville, June 1, 1999). Additionally, the police officers testified that Edgehill is a
high drug trafficking area that the police had targeted because of complaints by neighbors. See State
v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995). Also, the appellant and the other individuals


        1
            The appellant does not contest his convictions for simple possession of marijuana, criminal trespass, or
resisting arrest, nor does he contest his sentences for those convictions.

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left the area as soon as they noticed the police. Moreover, the police noticed six to ten white “rocks”
in the appellant’s hand. Furthermore, Officer Tomblin testified that all of the rocks, which appeared
to be roughly the same size as the rock recovered, could be broken down into two or three additional
rocks for resale. See Head, No.01C01-9806-CC-00263, 1999 WL 343910, at *3. Accordingly, the
appellant had approximately .5 grams of crack cocaine in his hand before he swallowed some of the
other rocks. Id. Also, no evidence of drug paraphernalia for the appellant’s personal use of crack
rocks was introduced at trial. See Brown, 915 S.W.2d at 8.2

                However, the appellant argues that State v. Jones, No. 02C01-9601-CC-00030, 1996
WL 629199, at *3 (Tenn. Crim. App. at Jackson, October 31, 1996), is controlling in this instance.
We disagree. Jones is distinguishable from the present case. In Jones, the defendant tried to
swallow cocaine but was forced by the police to spit out the substance. This court opined that,
because there was no evidence adduced at trial as to the significance of the amount of cocaine
retrieved or testimony stating whether the amount seized would be appropriate solely for personal
use or more likely for resale, the number of uses in the amount seized, or its worth, the defendant
could not be convicted of possession of cocaine with intent to sell. Id. However, in the present case,
Officer Tomblin testified that each of the rocks in the appellant’s hand appeared to be a $20 rock.
Additionally, Officer Tomblin testified that each rock could be cut into two or three smaller rocks
for resale. Based upon all of the foregoing evidence, we conclude that a jury could reasonably find
that the appellant possessed the crack cocaine with intent to sell. This issue is without merit.

                 Additionally, to convict the appellant of tampering with evidence, the State needed
to establish that the appellant, knowing that an investigation or official proceeding was pending or
in progress, altered, destroyed, or concealed any record, document, or thing with the intent to impair
its verity, legibility, or availability as evidence in the investigation or official proceeding. Tenn.
Code Ann. § 39-16-503(a)(1)(1997). This court has stated, “[f]or something to be destroyed within
the context of [Tenn. Code Ann.] § 39-16-503, its evidentiary value must be ruined.” State v. Logan,
973 S.W.2d 279, 282 (Tenn. Crim. App. 1998). Officer Tomblin testified that all the rocks in the
appellant’s hand appeared to be approximately the same size, shape, and color. Furthermore, the
officers stated that the substance appeared to be rocks of crack cocaine. In response to Sgt. DeLap’s
question regarding what was in the appellant’s hand, the appellant quickly put his hand to his mouth,
shoved all but one of the rocks inside, and would not open his mouth for the police. Both officers
testified that the appellant’s swallowing of the evidence hampered their investigation. Therefore,
the jury could have reasonably found the appellant guilty of tampering with evidence.

                                          B. Sentencing
              Our review of the length of the appellant’s sentence is de novo. Tenn. Code Ann. §
40-35-401(d) (1997). However, if the record reveals that the trial court adequately considered
sentencing principles and all relevant facts and circumstances, we will grant the trial court’s
determinations a presumption of correctness. Id.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn.
1991). We consider the following factors in conducting our de novo review: (1) the evidence, if any,


       2
           The appellant was ind icted for the possession of rolling pap ers, used in the rolling of marijuana cigarettes.

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received at the trial and the sentencing hearing; (2) the pre-sentence 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 defendant in his own behalf; and (7) the potential for
rehabilitation or treatment. Tenn. Code Ann. § 40-35-102,-103,-210 (1997). See also Ashby, 823
S.W.2d at 168. The appellant bears the burden of demonstrating the impropriety of his sentence(s).
Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

                 The appellant challenges the length of his sentences for possession of cocaine with
intent to sell and tampering with evidence. We note that the trial court sentenced the appellant as
a Range II multiple offender, and the appellant does not challenge the trial court’s finding regarding
the appropriate range. Because the record reveals that the appellant possesses two prior felony
convictions, we conclude that the trial court properly sentenced the appellant as a Range II offender.
Tenn. Code Ann. § 40-35-106(a)(1) & (c)(1997). As to the length of the sentences, both possession
of cocaine with intent to sell and tampering with evidence are class C felonies. Tenn. Code Ann.
§ 39-17-417(c)(2), 39-16-503(b). Accordingly, the applicable sentencing range in this case was six
to ten years. Tenn. Code Ann. § 40-35-112(b)(3)(1997). The trial court sentenced the appellant to
eight years incarceration for possession of cocaine with intent to sell and eight years incarceration
for tampering with evidence. Thus, the trial court sentenced the appellant at the midpoint of the
applicable range.

                In sentencing the appellant, the trial court conclusively applied the following
enhancement factors: (1) the appellant has a previous history of criminal convictions or criminal
behavior in addition to those necessary to establish the appropriate range; (8) the appellant has a
previous history of unwillingness to comply with the conditions of a sentence involving release in
the community; and (13) the felony was committed while on any of the following forms of release
status if such release is from a prior felony conviction: (A) bail, if the appellant is ultimately
convicted of such prior felony; (B) parole; (C) probation; (D) work release; (E) any other type of
release into the community under the direct or indirect supervision of the Department of Correction
or local governmental authority. Tenn. Code Ann. § 40-35-114(1997).3 Because the trial court made
no findings of fact supporting his application of the enhancement factors, we will review the
appellant’s sentence de novo without a presumption of correctness. See State v. Carter, No.
M1998-00798-CCA-R3-CD, 2000 WL 515930, at *10 (Tenn. Crim. App. at Nashville, April 27,
2000).

                 The appellant does not dispute the application of enhancement factor (1) or
enhancement factor (13). Because the record reflects that the appellant has several misdemeanor
convictions in addition to the two felony convictions placing him within Range II, we agree that the
trial court correctly applied enhancement factor (1). Tenn. Code Ann. § 40-35-114. Additionally,


         3
           The trial court made no specific findings on the record regarding why the enhan cement facto rs apply to the
appellant. The trial c ourt simply state d, with regard to possessio n of cocaine with intent to sell and tampering w ith
evidence , “The co urt finds that enha ncement fac tors 1, 8, and 13 [app ly].”

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because the appellant admitted during the sentencing hearing that he committed the present offenses
while on parole, we agree that enhancement factor (13) applies to the appellant. Id. However, the
appellant argues that the trial court misapplied enhancement factor (8). The appellant maintains that
he had no previous history of unwillingness to comply with the conditions of a sentence involving
release in the community simply because he committed the present offense while on parole. We
agree.

                 This court has stated that a violation of parole resulting in the current conviction is
not evidence of a previous history of unwillingness to comply with the terms of release into the
community. State v. Hayes, 899 S.W.2d 175, 186 (Tenn. Crim. App. 1995). However, the appellant
admitted at the sentencing hearing to using cocaine while on parole. See State v. Miller, No. 03C01-
9606-CR-00241, 1997 WL 585749, at *3 (Tenn. Crim. App. at Knoxville, September 23, 1997).
Moreover, the appellant admitted at the sentencing hearing that he had previously possessed cocaine
while on bond for murder charges. See State v. Strickland, 885 S.W.2d 85, 89 (Tenn. Crim. App.
1993). These facts are sufficient to constitute a previous history of unwillingness. We conclude that
the trial court correctly sentenced the appellant to eight years incarceration for his convictions of
possession of cocaine with intent to sell and tampering with evidence. This issue is without merit.

                                       III. Conclusion
               Based upon the foregoing, we affirm the judgment of the trial court.




                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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