         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs April 10, 2002

       STATE OF TENNESSEE v. ANTONIO RICO WALLS, aka RICO

                Direct Appeal from the Circuit Court for Montgomery County
                         No. 39076 John H. Gasaway, III, Judge



                     No. M1998-00358-CCA-R3-CD - Filed June 20, 2002


The defendant, Antonio Rico Walls, was convicted of the sale of over .5 grams of cocaine within
1000 feet of a school, in violation of the Drug-Free School Zone Act, and appealed the conviction.
Subsequently, he pled guilty to three additional counts of the indictment alleging the same offense,
and was sentenced to concurrent fifteen-year sentences for each offense. The pleas of guilty
purported to reserve, as a certified question, the claim that the Drug-Free School Zone Act is
unconstitutional. We conclude that it is not, and, further, that the evidence at the defendant’s trial
was sufficient to support his conviction. Accordingly, we affirm the judgments of the trial court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and NORMA MCGEE
OGLE, JJ., joined.

Roger Eric Nell, District Public Defender, and Collier W. Goodlett, Assistant Public Defender, for
the appellant, Antonio Rico Walls.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, Assistant Attorney General;
John Wesley Carney, Jr., District Attorney General; and Lance A. Baker, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                   PROCEDURAL HISTORY

       We have been unable to divine exactly what was intended to be appealed in this matter. To
explain, as best we can, the problem, we will set out the facts as gleaned from the record on appeal.

       The defendant was charged, in indictment 39076, returned on August 4, 1997, with eight
counts of violation of Tennessee Code Annotated section 39-17-417, the sale or delivery of over .5
grams of cocaine on four separate occasions, with the further allegations that the transactions
occurred within 1000 feet of a school.

         On May 5, 1998, defense counsel filed a motion to dismiss, arguing that the indictment
against the defendant was “so vague, indistinct and indefinite as to mislead the Accused and
embarrass him in the preparation of his defense and to expose him after conviction or acquittal to
substantial danger of a new prosecution for the same offense.” Additionally, the motion claimed that
the indictment, as well as Tennessee Code Annotated sections 39-17-417 and 39-17-432 failed to
“define the terms ‘public or private elementary school, middle school or secondary school,’” and that
section 39-17-417 required a “knowing” violation.1 The motion referred to a supporting
memorandum which alleged that sections 39-17-417 and 39-17-432 were unconstitutional, vague,
and overbroad and constituted cruel and unusual punishment. According to the brief, these statutes
violate the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and Article
I, sections 8 and 9 of the Tennessee Constitution.

        On June 12, 1998, a hearing was held on the defendant’s motion. The hearing consisted of
the arguments of counsel, with counsel for the defendant contending that the 1000-foot range was
vague as to how it was to be measured and, apparently, that the punishment for a violation of the Act
was cruel and unusual. The trial court, in its oral ruling at the conclusion of the hearing, disagreed
that the statute was vague as to how the measurement was to be made or that the punishment was
cruel and unusual.

        The defendant was tried and convicted of count 1, sale of over .5 grams of cocaine within
1000 feet of a school. According to the transcript, the trial was held on September 22, 1998. The
judgment for count 1, dated November 5, 1998, reflects that the trial court sentenced him to fifteen
years. A motion for new trial was filed on November 10, 1998. An order overruling the motion for
new trial was entered on March 24, 1999. A handwritten, pro se notice of appeal for this conviction
is contained in the appellate record and recites that the defendant appealed the November 5, 1998,
judgment of the court. That notice bears the circuit court clerk’s date stamp of December 11, 1998.
Subsequently, a notice of appeal, bearing the stamped date of March 18, 1999, was filed by counsel.
That notice recites that appeal is being taken “from the final judgment entered in this action on the
11th of March, 1999.” This second notice bears a typed docket number different from that of this
case. However, that docket number was marked over, as was a second handwritten docket number
which, also, is a different number from that assigned to this case. The third docket number on the
notice is not marked out and is the number assigned to this case. Accordingly, we presume that the
intent of that notice was to appeal the conviction from the jury trial, although it was filed before the
trial court had entered the order overruling the motion for new trial.

         Subsequently, the defendant entered pleas of guilty to counts 3, 5, and 7, receiving sentences
of fifteen years in each count, with all sentences to be served concurrently. The judgments bear the


         1
           W e assume that, by this claim, the defendant was referring to the contention in his supporting memorandum
that the State w ould have to plead and p rove that h e knew the tran saction s occurred w ithin 1000 feet of a school.

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handwritten date of April 23, 1999, and the circuit court clerk stamped date of “99 DEC-1 PM 1:04.”
As a “special condition,” the judgments recite: “The Defendant reserves the right to take up the
constitutionality of the Drug Free School Zone Act.” An order accepting the pleas of guilty recites
“certified question of law reserved pursuant to Rule 37(b)(2)(I), Tennessee Rules of Criminal
Procedure.”

        The record on appeal also includes an order, signed on April 23, 1999, although bearing the
court clerk’s stamped date of April 30, 1999, stating that the trial court accepted the defendant’s
guilty pleas to counts 3, 5, and 7 of the indictment. The order, apparently created to set out the
certified question, also contains the following language:

                       With the consent of the Court and the consent of the District
                Attorney General, the Accused’s plea explicitly reserves the right to
                appeal a certified question of law that is dispositive of the case, to-
                wit:

                        That on the ___ day of ____________, 19__, the Accused
                filed a motion [to] declare that T.C.A. § 39-17-432 was
                unconstitutional in that it is vague, overbroad, does not put a person
                of reasonable intelligence on notice as to how to measure the distance
                between the offense locale and the school property, is violative of due
                process, is violative of the equal protection clause of the Fourteenth
                Amendment of the United States Constitution and Article I Section
                8 of the Tennessee Constitution, the enforcement of T.C.A. § 39-17-
                417 and T.C.A. § 39-[17]-432 is not a valid exercise of the police
                power, and is violative [of] Article I, Section 13 of the Tennessee
                Constitution and the Eighth Amendment of the United States
                Constitution. That on the ___ day of ___________, 19 __, the Court
                denied the motion finding T.C.A § 39-[17]-432 constitutional. The
                certified question concerns the constitutionality of [T.C.A.] § 39-17-
                432 on its face and as applied to this defendant.

        Although the judgments reflecting the defendant’s pleas of guilty to counts 3, 5, and 7 are
contained in the appellate record, there is no notice of appeal for these judgments or presenting the
certified question purported reserved for appeal. Therefore, the situation presented appears to be that
the defendant filed an appeal as to count 1, for which he was tried and convicted, but did not appeal
his pleas of guilty to counts 3, 5, and 7, which attempted to present a certified question to this court.
His brief is directed solely to the certified question issue. Having made this observation, we now
will consider the issues, as we see them.




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                                             ANALYSIS

                                       I. Certified Question

        Although the State has not questioned whether the certified question is properly before this
court, Tennessee Rule of Appellate Procedure 13(b) requires that we “shall” determine whether we
have jurisdiction. This court has jurisdiction of a matter upon the filing of a notice of appeal, which
must be done within thirty days after entry of the judgment from which the appeal is being taken:

                RULE 4. APPEAL AS OF RIGHT:                    TIME FOR FILING
                NOTICE OF APPEAL.

                        (a) Generally. In an appeal as of right to the Supreme Court,
                Court of Appeals or Court of Criminal Appeals, the notice of appeal
                required by Rule 3 shall be filed with and received by the clerk of the
                trial court within 30 days after the date of entry of the judgment
                appealed from; however, in all criminal cases the "notice of appeal"
                document is not jurisdictional and the filing of such document may
                be waived in the interest of justice. The appropriate appellate court
                shall be the court that determines whether such a waiver is in the
                interest of justice. Any party may serve notice of entry of an
                appealable judgment in the manner provided in Rule 20 for the
                service of papers.

        As we have set out, the trial court’s ruling on the motion to dismiss was not appealed.
Therefore, the issue of whether the trial court erred is not properly before this court. However, we
will waive filing of a notice of appeal in the interest of justice. Likewise, in order to reach a
determination as to this matter, we will consider the certified question as properly before this court,
although the better practice is for the judgment to incorporate by reference the document setting out
the certified question, rather than, as occurred here, for the judgment simply to recite that a certified
question is being reserved and, then, set out the question on another document in the record which
may or may not have been executed the same day as the judgments of conviction referring to a
certified question. We note that the order setting out the question was signed by counsel for both
sides, as well as the trial court, and recited that the certified question was dispositive.

       During the pendency of this appeal, this court considered, via a certified question, and
determined to be without merit, the identical constitutional attacks made by this defendant against
the Drug-Free School Zone Act, including that the Act:

                (a) is vague, overbroad and does not put a person of reasonable
                    intelligence on notice as to how to measure the distance between
                    the offense locale and the school property;



                                                  -4-
               (b) is violative of due process;

               (c) is violative of the equal protection clause of the Fourteenth
                   Amendment of the United States Constitution;

               (d) is violative of Article I Section 8 of the Tennessee Constitution;

               (e) is not a valid exercise of the police power;

               (f) is violative of Article I Section 13 of the Tennessee Constitution;

               (g) is violative of the Eighth Amendment of the United States
                   Constitution.

State v. Jenkins, 15 S.W.3d 914, 916 (Tenn. Crim. App. 1999), perm. to appeal denied (Tenn. 2000).

       Accordingly, we conclude that the claims presented by the defendant’s certified question are
without merit.

                                        II. Direct Appeal

        The defendant filed a timely motion for new trial, arguing that the evidence was insufficient
to support the conviction under count 1 and that the trial court erred in sentencing him to fifteen
years imprisonment. The new trial motion was denied on March 11, 1999, with the order reflecting
the denial being entered on March 24, 1999. The defendant had filed a notice of appeal on March
18, 1999. Subsequent orders of this court over the next period of months addressed the fact that,
although the appellate record had been filed on December 8, 1999, a transcript of the sentencing
hearing was not included in that record. By order of March 5, 2001, this court advised defense
counsel that the direct appeal of the conviction would proceed on the record then before the court,
and ordered that defense counsel file his appellate brief. Subsequently, that brief was filed, but it
addresses the certified question rather than the defendant’s conviction under count 1. Since the
record on appeal now contains the trial transcript, we will consider the defendant’s direct appeal of
his conviction under count 1.

        The defendant was tried on count 1 of the indictment, which alleged that he sold over .5
grams of cocaine to an undercover agent on or about November 20, 1996, within 1000 feet of a
school, in violation of Tennessee Code Annotated section 39-17-417.

       Only three witnesses testified at the trial, all for the prosecution.

        Maxey Gilleland, a special agent of the Tennessee Bureau of Investigation (“TBI”), testified
that, on November 20, 1996, in Apartment A-15 of the Lincoln Homes housing project in
Clarksville, while engaged in an undercover drug operation, he witnessed the defendant sell what


                                                  -5-
was supposed to be an ounce of crack cocaine to TBI Special Agent Charles Rountree. When
weighed, in the presence of the defendant, the weight was less than one ounce, so the sale price was
renegotiated from $1200 to $1000. The resident of the apartment, who was working for the TBI,
tested the substance while the defendant was still in the apartment, but out of his presence, and
determined that, according to the field test, the substance was cocaine. Agent Gilleland said that,
at the time of the transaction, he knew the defendant as “Rico.”

        Agent Charles Rountree, testifying as the next witness, related how he had purchased crack
cocaine from the defendant on November 20, 1996. He narrated a secretly recorded videotape of the
transaction, as it was shown to the jury.

         The final witness was TBI Special Agent Forensic Scientist William H. Stanton, Jr., who
testified that he had received and weighed the substance purchased from the defendant, and
determined that it weighed 22.8 grams. He tested the substance and determined that it was cocaine
base, which is crack cocaine.

         The State then rested its case, and the defense rested without presenting any evidence. After
the jury had convicted the defendant of violating Tennessee Code Annotated section 39-17-417, the
trial then proceeded as to whether the sale had occurred within 1000 feet of a school. Monroe
Elliott, an employee of the Montgomery County Highway Department, testified that he was a
registered land surveyor. Using a land plat, he testified that Apartment A-15 of the Lincoln Homes
was 686.97 feet from the grounds of Burt Elementary School and 763.37 feet from the school
building.

      The State’s second and last witness was Malyn Irene Gudgeon, the principal of Burt
Elementary School, who testified that it was a public elementary school.

        Following its deliberations, the jury determined that the drug sale had occurred within 1000
feet of a school. The defendant’s bond was then revoked, and he was taken into custody.

        In considering the sufficiency of the proof, we apply the familiar rule that where sufficiency
of the convicting evidence is challenged, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). See also State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim.
App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of
guilt beyond a reasonable doubt.”). All questions involving the credibility of witnesses, the weight
and value to be given the evidence, and all factual issues are resolved by the trier of fact. See State
v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved
by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflicts in



                                                   -6-
favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). Our supreme
court stated the rationale for this rule:

                     This well-settled rule rests on a sound foundation. The trial
                judge and the jury see the witnesses face to face, hear their testimony
                and observe their demeanor on the stand. Thus the trial judge and
                jury are the primary instrumentality of justice to determine the weight
                and credibility to be given to the testimony of witnesses. In the trial
                forum alone is there human atmosphere and the totality of the
                evidence cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). A jury conviction removes the presumption of innocence with which a
defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).

       In the trial of this matter, two TBI agents testified that the defendant had sold crack cocaine
to one of them. A TBI forensic scientist then testified that the substance sold was crack cocaine
weighing 22.8 grams. A surveyor, using a land plat, testified that the apartment where the sale had
occurred was less than 1000 feet from a school, and the principal of the school testified that it was
a public school.

      The defendant was convicted on this proof, and there was no evidence to the contrary.
Accordingly, we find that the evidence is sufficient to support the defendant’s conviction.

        In his motion for new trial, the defendant also argued that he was improperly sentenced.
However, we have no explanation as to what was improper about the sentencing. We note that the
defendant was sentenced to fifteen years, the minimum punishment for selling over .5 grams of
cocaine within 1000 feet of a school. An appellant must make certain that the record includes all
evidence relevant to the issues on appeal. Tenn. R. App. P. 24(b). “In the absence of an adequate
record on appeal, this court must [conclusively] presume that the trial court’s rulings were supported
by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see State v.
Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). Accordingly, we conclude that the defendant
was properly sentenced.

                                          CONCLUSION

         Based upon the foregoing authorities and reasoning, we affirm the judgments of the trial
court.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE

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