        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 27, 2016


      STATE OF TENNESSEE v. WILLIAM JERMAINE STRIPLING

                  Appeal from the Criminal Court for Knox County
                        No. 102315    G. Scott Green, Judge




                 No. E2015-01554-CCA-R3-CD – Filed June 16, 2016
                        _____________________________

William Jermaine Stripling (“the Defendant”) was convicted of two counts of sale of less
than .5 grams of cocaine in a drug-free zone and two counts of delivery of less than .5
grams of cocaine in a drug-free zone. His convictions merged, leaving him with one
conviction for sale of less than .5 grams of cocaine in a drug-free zone. In a bifurcated
proceeding, the Defendant‟s sentence was enhanced pursuant to the criminal gang
offenses enhancement statute, Tennessee Code Annotated section 40-35-121. On appeal,
the Defendant argues that the criminal gang offenses enhancement statute is facially
unconstitutional. Specifically, the Defendant contends that the criminal gang offenses
enhancement statute violates due process because it is overly broad and void for
vagueness and that it violates his First Amendment right to free association and
expression. Additionally, the Defendant argues there was insufficient evidence to
support his convictions. Upon review, we conclude that the criminal gang offenses
enhancement statute is unconstitutional because it violates substantive due process.
However, we hold that the evidence was sufficient to support the Defendant‟s convictions
of sale and delivery of less than .5 grams of cocaine within a drug-free zone. The
judgments of the trial court are affirmed in part, modified in part, and reversed in part.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
            in Part, Modified in Part, Reversed in Part, and Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., J., joined, and JAMES CURWOOD WITT, JR., filed a separate concurring
opinion.

Jonathan S. Wood, Knoxville, Tennessee, for the appellant, William Stripling.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Charme Allen, District Attorney General; and Ta Kisha Fitzgerald, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                                OPINION

                             I. Factual and Procedural Background

                                              a. Guilt Phase

        The Defendant was charged, via presentment, with one count of sale of less than .5
grams of cocaine in a drug-free zone (school), one count of delivery of less than .5 grams
of cocaine in a drug-free zone (school), one count of sale of less than .5 grams of cocaine
in a drug-free zone (daycare center), and one count of delivery of less than .5 grams of
cocaine in a drug-free zone (daycare center), (Counts 1-4). Additionally, Count 5 of the
indictment alleged that the Defendant was a gang member and gave the Defendant notice
that the State sought enhanced punishment under the criminal gang offenses enhancement
statute, specifically Tennessee Code Annotated sections 40-35-121(b), (g), and (h)(1)(A).

       At trial, Knoxville Police Department Officer Terry Pate testified that he was
conducting an undercover patrol of the “Magnolia area” on August 26, 2010. Officer
Pate was driving a pickup truck with a four-wheeler in the back, and he parked his truck
in front of the “Gas House” on Magnolia Avenue. The Defendant approached Officer
Pate‟s truck and made a comment about the four-wheeler, and Officer Pate informed the
Defendant that the four-wheeler was inoperable. Officer Pate then told the Defendant
that he was “looking for something.” The Defendant told Officer Pate to “pull around
onto Linden”—a nearby street—and wait. Officer Pate complied.

       After Officer Pate moved his truck, the Defendant again approached the vehicle,
and Officer Pate told him that he was looking for “a [twenty].” Officer Pate explained
that looking for “a [twenty]” meant that he was looking for twenty dollars‟ worth of crack
cocaine. The Defendant reached into his pants, withdrew a plastic bag containing crack
cocaine, and handed Officer Pate “a piece of it.” “Almost simultaneously” with the
Defendant‟s giving Officer Pate the drug, Officer Pate gave the Defendant a twenty dollar
bill. The Defendant told Officer Pate to be careful and made a few more comments about
the four-wheeler, and Officer Pate then drove away.

       Officer Pate drove to another location where he met Officer Jinks.1 He sealed the
substance he received from the Defendant in a plastic bag and gave the bag to Officer

      1
          Officer Jinks‟s first name is not included in the record.
                                                    -2-
Jinks. Later, Officer Pate conducted a field test of the substance, which tested positive
for “cocaine base.” Officer Pate testified that the transaction with the Defendant took
place within 1,000 feet of Knoxville Baptist Christian School and Kidz Inkorporated
Preschool.

       Officer Pate noted that his truck was equipped with a hidden camera that was
pointed at the driver‟s side door and that it captured video of the transaction with the
Defendant. However, there was no audio recording of the transaction. The video was
played for the jury. The video showed a male, whom Officer Pate identified as the
Defendant, approach the driver‟s side window. Officer Pate spoke to the Defendant and
then drove to another location and parked his truck. Shortly thereafter, the Defendant
again approached Officer Pate‟s car and looked into the back of Officer Pate‟s truck. The
Defendant then placed his hand inside Officer Pate‟s truck, and Officer Pate drove away.
Officer Pate testified that the video captured the transaction between himself and the
Defendant.

        Special Agent Ashley Cummings of the Tennessee Bureau of Investigation
testified that she received a sealed envelope with a “rock-like substance” in connection
with this case. Her test of the “rock-like substance” revealed that it contained .08 grams
of cocaine base. She stated the substance is commonly referred to as crack or crack
cocaine.

       Robert Evans, an employee of Knoxville Baptist Christian School, testified that
the school was located on Magnolia Avenue and that it was in existence on the date of the
offense. Erica Williams, an employee of the Department of Human Services, Childcare
and Adult Care Licensing, testified that Kidz Inkorporated Preschool was located on East
Magnolia and that it was in existence on the date of the offense. Donna Roach of the
Knoxville Utility Board Geographic Information Systems testified that the transaction
between the Defendant and Officer Pate took place within 1,000 feet of Knoxville Baptist
Christian School and Kidz Inkorporated Preschool.

       The Defendant admitted that he was the person who approached Officer Pate‟s
truck on the video. The Defendant recalled that he saw Officer Pate‟s truck pull into the
parking lot and that Officer Pate “flagged [the Defendant] down.” Officer Pate told the
Defendant that he needed twenty dollars‟ worth of “crack.” The Defendant told Officer
Pate that he had spent “the last [five dollars] he had” on cocaine for his personal use. The
Defendant also directed Officer Pate “to pull around back” so that his truck was not
blocking access to the parking lot. Once Officer Pate moved his truck, the Defendant
approached him again and gave Officer Pate the drugs he had previously purchased for
himself and told Officer Pate to “go ahead and get started off of what I have.” Officer
Pate then gave the Defendant twenty dollars and told the Defendant to go find enough
crack cocaine for the both of them. Officer Pate then drove away, and the Defendant
                                             -3-
understood that he would return fifteen minutes later so that they could get high together.
However, Officer Pate never returned, so the Defendant spent the twenty dollars “on
cigarettes, alcohol[,] and enough crack to get [him] through the night.” The Defendant
said he did not know whether the substance he gave Officer Pate “was real or not.” The
Defendant said he did not intend to sell drugs to Officer Pate.

       On cross-examination, the Defendant denied asking Officer Pate about the four-
wheeler. The Defendant also stated that he had the drugs in his hand, and he denied
reaching into his pants to retrieve the drugs. The Defendant agreed that he handed drugs
to Officer Pate, but he did not agree that he delivered drugs to Officer Pate. Further, the
Defendant agreed that Officer Pate gave him money, but he said that it was not
immediately after he handed Officer Pate the drugs.

        The State called Officer Pate as a rebuttal witness. Officer Pate said he never
discussed smoking crack cocaine with the Defendant. Officer Pate further stated that the
Defendant pulled the drugs from “the inside of the front of his pants” before giving it to
Officer Pate. Officer Pate observed that the Defendant had a bag containing more than
one piece of crack cocaine in his pants but that the Defendant only gave Officer Pate one
piece of crack cocaine. Based on Officer Pate‟s experience, he understood that
possessing that amount of drugs to be consistent with someone who sells drugs. Officer
Pate explained that someone addicted to crack cocaine would not keep a reserve on hand
but, instead, would use the drug as soon as they obtained it. Officer Pate also testified
that the exchange of drugs and money was “almost together”; there was no delay between
the Defendant‟s giving Officer Pate the drugs and the officer‟s paying the Defendant.

       The jury convicted the Defendant as charged in the first four counts of the
indictment. The trial court later merged Counts 2, 3, and 4 with Count 1.

                           b. Gang Enhancement Proceedings

        In a bifurcated proceeding, Detective Tom Walker, of the Knox County Sheriff‟s
Office (“KCSO”), testified that he was a member of the KCSO‟s Gang Intelligence Unit,
which keeps track of gang members in the “east Tennessee area.” Detective Walker was
accepted as an expert in gang identification. Detective Walker stated that the Gang
Intelligence Unit utilized a “check-off sheet” to determine whether an individual was a
gang member. Such considerations included whether the individual: admitted to gang
membership, was certified as a gang member from another law enforcement agency,
wore specific gang tattoos, had an ongoing association with known gang members,
showed gang-specific hand signs, wore gang colors, or displayed gang graffiti in his jail
cell. Each factor was given a point value, and if an individual achieved ten points on the
check list, he was considered a gang member.

                                           -4-
        Detective Walker explained that the Rolling 60s Crips was a splinter group that
broke off from the West Side Crips in Los Angeles, California. The group had been
present in Knoxville for approximately ten years, and the KCSO‟s Gang Intelligence Unit
had identified forty-two members of the group in the Knoxville area. Antwain Holliday,
Larry Winton, and Thomas Agnew were identified as members of the Rolling 60s Crips.
Further, Detective Walker stated that the Defendant was identified as a member of the
Rolling 60s Crips due to the fact that Rolling 60s Crips graffiti was found inside his jail
cell; he had a book on the history of the Rolling 60s Crips in his cell; he had written
letters to and received letters from other known gang members; he had been “arrested on
a violent crime”; he had “a weapons arrest”; and he had a gang-specific tattoo. Detective
Walker also noted that the Defendant had admitted to gang involvement in the letters that
he sent from jail. Detective Walker interpreted the graffiti found in the Defendant‟s cell
to say “Rich Rollin for Life,” meaning the Defendant was going to be a member of the
Rolling 60s Crips for life. Additionally, the graffiti said, “OGC,” or “Original Gangster
Crips,” meaning the Defendant claimed to be one of the original gang members in the
Knoxville branch of the Rolling 60s Crips.

        On cross-examination, Detective Walker acknowledged that inmates were housed
in two-man cells. However, he explained that, when officers search an inmate‟s cell, they
only “count” items found in the inmate‟s personal property box as evidence that the
inmate is a member of a gang—they do not use items found lose in the cell to calculate
the points against an inmate. Detective Walker noted that the inmate‟s cellmate could
ostensibly gain access to an inmate‟s box, but he opined that such occurrence was “pretty
slim” because the inmates were possessive of their property boxes. Detective Walker
said he was “[ninety-nine] percent” sure the graffiti found in the Defendant‟s cell
belonged to the Defendant. Detective Walker also noted that the Defendant‟s tattoo said
“L.A.,” which Detective Walker understood to mean either “Linden Avenue” or “Los
Angeles.” Both locations were associated with the Rolling 60s Crips. Detective Walker
confirmed that the Defendant had not admitted to being a gang member or to having any
affiliation with Antwain Holliday, Larry Winton, or Thomas Agnew.

       Knox County Criminal Court Clerk, Richard Major, testified that he had certified
copies of the following judgments: Larry Winton for felony sale of cocaine (offense date
October 7, 2008); Thomas Agnew for six separate convictions for felony sale of cocaine
(offense dates ranging from August 2, 2007, to October 7, 2008); Antwain Holliday for
three counts of felony sale of cocaine (offense dates August 2, 2007, and August 20,
2007) and one count of felony attempted sale of cocaine (offense date August 10, 2007).
The judgments of conviction were entered into evidence.

       The Defendant testified that he got his “L.A.” tattoo when he was twelve years old
and that it symbolized “Linden Avenue” because he had always lived on that street. The

                                           -5-
Defendant further stated that he did not have a lid on his personal property box in his cell,
and he claimed that the documents with the graffiti did not belong to him. The Defendant
opined that another inmate could have sent a letter using an envelope with the
Defendant‟s identification number and signing the Defendant‟s name so that the contents
of the letter would have been attributed to the Defendant. The Defendant denied being a
gang member. On cross-examination, the Defendant denied writing any of the letters that
were introduced during the instant proceeding. The Defendant said that, even though he
had lived on Linden Avenue his entire life, he first heard of the Crips when he went to
jail.

        After deliberation, the jury found that the gang enhancement statute applied to the
Defendant. Specifically, the jury found that the Defendant was guilty of a criminal gang
offense. Further, the jury found that the Defendant was a criminal gang member because
(1) the Defendant resided in or frequented a particular criminal gang‟s area, adopted their
style or dress, their use of hand signs or their tattoos, and associated with known criminal
gang members; and (2) the Defendant was identified as a criminal gang member by
physical evidence such as photographs or other documentation. Finally, the jury found
that the Defendant was not a leader in the criminal gang.

                                   c. Sentencing Hearing

        At the subsequent sentencing hearing, the Defendant argued that the gang
enhancement statute was unconstitutional on the grounds that it violated due process
because it was overly broad and void for vagueness and that it violated the Defendant‟s
First Amendment right to free association. The trial court found that the statute was
constitutional, stating that it did not punish mere association with a gang. Instead, the
trial court reasoned that the statute enhanced punishment for offenses committed by gang
members in association with other gang members. The trial court sentenced the
Defendant to eighteen years‟ incarceration, the first fifteen years to be served at one
hundred percent and the remaining three years to be served at thirty percent. The
Defendant‟s motion for new trial was denied, and this timely appeal followed.

                                        II. Analysis

            Constitutionality of Criminal Gang Offenses Enhancement Statute

                                         a. Waiver

       Preliminarily, we note that there is no indication that the Defendant filed a pre-trial
motion challenging the constitutionality of Tennessee Code Annotated section 40-35-121.
According to the record, the Defendant raised the issue for the first time at the sentencing
hearing, and he later raised the issue in his motion for new trial. This court has
                                            -6-
previously stated that the failure to raise a constitutional challenge to a statute in a pre-
trial motion results in a waiver of the issue on appeal. State v. Rhoden, 739 S.W.2d 6, 10
(Tenn. Crim. App. 1987); see also Tenn. R. Crim. P. 16(b)(2); State v. Farmer, 675
S.W.2d 212, 214 (Tenn. Crim. App. 1984). However, we also note that the State did not
raise the issue of waiver when the Defendant argued the constitutionality of the statute at
the sentencing hearing, and the State does not argue waiver on appeal. Accordingly, we
will address the merits of the Defendant‟s claim. See State v. Smith, 48 S.W.3d 159, 162
n.1 (Tenn. Crim. App. 2000), perm. app. denied (Tenn. Dec. 27, 2000).

                                      b. Due Process

       The Defendant argues that Tennessee Code Annotated section 40-35-121 is
overbroad, and facially unconstitutional, because the statute requires no connection
between the underlying crime and alleged gang membership in order for the enhancement
to apply. He further asserts that the statute is void for vagueness because it fails to
provide adequate notice of what conduct is prohibited by the statute. The State argues
that the statute is constitutional because the sentencing enhancement can only apply to
“criminal gang offenses” as defined in Tennessee Code Annotated section 40-35-
121(a)(3).

       Under Tennessee Code Annotated section 40-35-121(b), “[a] criminal gang
offense committed by a defendant who was a criminal gang member at the time of the
offense shall be punished one (1) classification higher than the classification established
by the specific statute creating the offense committed.” Tenn. Code Ann. § 40-35-121(b)
(2014). As applicable to this case, “criminal gang offense” is defined as follows:

       A criminal offense committed prior to July 1, 2013 that:

       (i) During the perpetration of which the defendant knowingly causes or
       threatens to cause death or bodily injury to another person or persons and
       specifically includes rape of a child, aggravated rape and rape; or

       (ii) Results, or was intended to result, in the defendant‟s receiving income,
       benefit, property, money or anything of value from the illegal sale, delivery
       or manufacture of a controlled substance, controlled substance analogue, or
       firearm[.]

Tenn. Code Ann. § 40-35-121(a)(3)(A) (2014). As defined in the statute,

       “Criminal gang” means a formal or informal ongoing organization,
       association or group consisting of three (3) or more persons that has: (A)
       [a]s one (1) of its activities the commission of criminal acts; and (B) [t]wo

                                            -7-
      (2) or more members who, individually or collectively, engage in or have
      engaged in a pattern of criminal gang activity.

Tenn. Code Ann. § 40-35-121(a)(1) (2014). The statute defines “pattern of criminal gang
activity” as “prior convictions for the commission or attempted commission of,
facilitation of, solicitation of, or conspiracy to commit” the following:

      (i) Two (2) or more criminal gang offenses that are classified as felonies; or

      (ii) Three (3) or more criminal gang offenses that are classified as
      misdemeanors; or

      (iii) One (1) or more criminal gang offenses that are classified as felonies
      and two (2) or more criminal gang offenses that are classified as
      misdemeanors; and

      (iv) The criminal gang offenses are committed on separate occasions; and

      (v) The criminal gang offenses are committed within a five-year period[.]

Tenn. Code Ann. § 40-35-121(a)(4)(A) (2014).

      A “criminal gang member” is defined as follows:

      [A] person who is a member of a criminal gang, as defined in subdivision
      (a)(1), who meets two (2) or more of the following criteria:

      (A) Admits to criminal gang involvement;

      (B) Is identified as a criminal gang member by a parent or guardian;

      (C) Is identified as a criminal gang member by a documented reliable
      informant;

      (D) Resides in or frequents a particular gang‟s area, adopts their style or
      dress, their use of hand signs or their tattoos and associates with known
      criminal gang members;

      (E) Is identified as a criminal gang member by an informant or previously
      untested reliability and the identification is corroborated by independent
      information;



                                           -8-
       (F) Has been arrested more than once in the company of identified criminal
       gang members for offenses that are consistent with usual criminal gang
       activity.

       (G) Is identified as a criminal gang member by physical evidence such as
       photographs or other documentation[.]

Tenn. Code Ann. § 40-35-121(a)(2) (2014).

       Our courts are charged with upholding the constitutionality of statutes whenever
possible. State v. Pickett, 211 S.W.3d 696, 700 (Tenn. 2007). When analyzing the
constitutionality of a statute, we begin with the presumption that the statute is
constitutional. Id. (citing Gallaher v. Elam, 104 S.W.3d 455, 459 (Tenn. 2003)). The
constitutional interpretation of a statute is a question of law which we review de novo.
Waters v. Farr, 291 S.W.3d 873, 882 (Tenn. 2009).

       We first address the Defendant‟s assertion that the statute is vague. “A statute
may be void for vagueness if it is not „sufficiently precise to put an individual on notice
of prohibited activities.‟” State v. Burkhart, 58 S.W.3d 694, 697 (Tenn. 2001) (quoting
State v. Wilkins, 655 S.W.2d 914, 915 (Tenn. 1983)). Criminal statutes are construed
according to the fair import of their terms. Id. “Due process requires that a statute
provide „fair warning‟ and prohibits holding an individual criminally liable for conduct
that a person of common intelligence would not have reasonably understood to be
proscribed.” Id.

        As stated above, section 40-35-121(b) provides that “[a] criminal gang offense
committed by a defendant who is a criminal gang member at the time of the offense shall
be punished by one (1) classification higher than the classification established by the
specific statute creating the offense committed.” Pertinent to this case, a “criminal gang
offense” is defined as “[a] criminal offense committed prior to July 1, 2013 that . . .
[r]esults, or was intended to result, in the defendant‟s receiving income, benefit, property,
money or anything of value from the illegal sale, delivery, or manufacture of a controlled
substance, controlled substance analogue, or firearm[.]” Tenn. Code Ann. § 40-35-
121(a)(3)(A) (2014). The terms used in the statute are defined in the code or are capable
of ready understanding. A “criminal offense” is conduct that “is defined as an offense by
statute, municipal ordinance, or rule authorized by and lawfully adopted under a statute.”
Tenn. Code Ann. § 39-11-102(a) (2014). The remaining terms of the statute are defined
elsewhere in the code. See Tenn. Code Ann. §§ 39-11-106(a)(1) (defining “benefit”), -
106(a)(11) (defining “firearm”), -106(a)(28) (defining “property”); see also Tenn. Code
Ann. §§ 39-17-402(4) (defining “controlled substance”), -402(6) (defining “deliver”), -
402(15) (defining “manufacture”); Tenn. Code Ann. § 39-17-454(a) (defining “controlled

                                            -9-
substance analogue”). “Income” is not defined in the criminal code, but the term is
capable of ready understanding.

       Upon review, we conclude that the statute is sufficiently precise to provide fair
warning as to conduct that is covered by the statute. In short, the statute applies to a gang
member who sells, delivers, or manufactures a controlled substance and where the
transaction results, or was intended to result, in the defendant‟s receiving some sort of
compensation for that service. A person of common intelligence would be able to
understand the plain meaning of the statute, and it is not void for vagueness.

        Next the Defendant argues that the statute is unconstitutionally overbroad because
it requires no nexus between the criminal activity and the Defendant‟s gang membership
in order for the enhancement to apply. The Fourteenth Amendment to the United States
Constitution guarantees that no “State [shall] deprive any person of life, liberty, or
property, without due process of law[.]” U.S. Const. amend. XIV, § 1. Article I, section
8 of the Tennessee Constitution “has consistently been interpreted as conferring identical
due process protections as its federal counterparts.” Mansell v. Bridgestone Firestone
North American Tire, LLC, 417 S.W.3d 393, 407 (Tenn. 2013). Due process
encompasses both procedural and substantive protections. Id. “The most basic principle
underpinning procedural due process is that individuals be given an opportunity to have
their legal claims heard at a meaningful time and in a meaningful manner.” Id. (quoting
Lynch v. City of Jellico, 205 S.W.3d 384, 391 (Tenn. 2006)) (internal quotation marks
omitted). In contrast, “substantive due process bars oppressive government action
regardless of the fairness of the procedures used to implement the action.” Id. at 409.
“Unless a fundamental right is involved, the test for determining whether a statute
comports with substantive due process is whether the legislation bears „a reasonable
relation to a proper legislative purpose‟ and is „neither arbitrary nor discriminatory.‟”
Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994) (quoting Nebbia v. New York, 291
U.S. 502, 537 (1934)).

       This court has previously examined the constitutionality of Tennessee Code
Annotated section 40-35-121 in State v. Devonte Bonds, No. E2014-00495-CCA-R3-CD,
2016 WL 1403286 (Tenn. Crim. App. Apr. 7, 2016). In that case, this court noted that
the General Assembly clearly had the authority to enact laws proscribing the harmful
effect of criminal gangs. Devonte Bonds, 2016 WL 1403286, at *25. However, the court
concluded that Tennessee Code Annotated section 40-35-121(b) was not reasonably
related to that purpose and therefore did not satisfy the requirements of substantive due
process. Id. As stated by this court,

       . . . It simply cannot be maintained that a statute ostensibly intended to
       deter gang-related criminal conduct through enhanced sentencing is
       reasonably related to that purpose where the statute in question is
                                          - 10 -
      completely devoid of language requiring that the underlying offense be
      somehow gang-related before the sentencing enhancement is applied.
      Without a nexus requirement, Section 40-35-121(b) directly advances only
      the objective of harsher treatment of criminal offenders who also happen to
      members of a criminal gang. Because Section 40-35-121(b) fails to even
      obtusely target gang-related criminal activity, it lacks a reasonable
      relationship to achieving the legitimate legislative purpose of deterring
      criminal gang activity and therefore violates the principles of substantive
      due process.

Id. This court also concluded that the statute violated substantive due process principles
because it “imposes mandatory punishment on an eligible defendant by imputing to him
responsibility for the criminal activity of the gang as a collective without requiring the
defendant‟s knowledge of and intent to promote such activity.” Id. at *26; see also
Scales v. United States, 367 U.S. 203, 224-25 (1961) (“In our jurisprudence guilt is
personal, and when the imposition of punishment on a status or on conduct can only be
justified by reference to the relationship of that status or conduct to other concededly
criminal activity . . . that relationship must be sufficiently substantial to satisfy the
concept of personal guilt in order to withstand attack under the Due Process Clause.”)

       Upon review, we agree that Tennessee Code Annotated section 40-35-121(b)
violates substantive due process principles. Without a requirement that the offense be
related to the Defendant‟s criminal gang membership, we fail to comprehend how
Tennessee Code Annotated section 40-35-121(b) is reasonably related to the goal of
deterring criminal gang activity. The statute unconstitutionally abridges substantive due
process.

                                   c. First Amendment

       Next, the Defendant argues that Tennessee Code Annotated section 40-35-121 is
overbroad and violates his First Amendment rights to freedom of expression and
association. The Defendant contends that, because Tennessee Code Annotated section
40-35-121(b) “without showing that the charged crime is in any way related to the
defendant‟s alleged gang affiliations[,]” the statute “criminalizes associations protected
by the First Amendment by creating a penalty for exercising these constitutional rights.”
The State argues that the statute does not punish a criminal defendant simply for
exercising his constitutional freedom of association. Instead, the State asserts that the
statute punishes defendants who are members of a gang and commit a “criminal gang
offense” as defined in the statute.

       “A statute may be challenged as overbroad when it reaches a substantial amount of
constitutionally protected conduct.” Burkhart, 58 S.W.3d at 700 (citing Village of
                                          - 11 -
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982)). “A
statute may be invalid on its face if it inhibits the exercise of First Amendment rights and
if the „impermissible applications of the law are substantial when judged in relation to the
statute‟s plainly legitimate sweep.‟” Id. (quoting City of Chicago v. Morales, 527 U.S.
41, 55 (1999)) (internal quotation marks omitted). In order to show that a statute is
overbroad, a defendant must first show that the statute involves constitutionally protected
conduct. Id. “If the statute reaches a substantial amount of constitutionally protected
conduct, a defendant must then „demonstrate from the text of the law and actual fact that
there as a substantial number of instances where the law cannot be applied
constitutionally.‟” Id. (quoting State v. Lyons, 802 S.W.2d 590, 593 (Tenn. 1990)).

       The United States Supreme Court has recognized the “freedom of association” in
two distinct lines of cases. Roberts v. United States Jaycees, 468 U.S. 609, 617 (1984).
The first line of cases refers to a right of “intimate association.” Id. at 618. “Intimate
association” is the “choice to enter into and maintain certain intimate human
relationships . . . .” Id. at 617-18. In the second line of cases, the United States Supreme
Court recognized “expressive association” or “the right to association for the purpose of
engaging in those activities protected by the First Amendment—speech, assembly,
petition for redress of grievances, and the exercise of religion.” Id. at 618. However, the
right to associate for expressive purposes is not absolute, and the government may
infringe upon that right by way of “justifiable regulations adopted to serve compelling
state interests, unrelated to the suppression of ideas, that cannot be achieved through
means significantly less restrictive associational freedoms.” Id. at 623.

        Turning to this case, contrary to the Defendant‟s assertions, Tennessee Code
Annotated section 40-35-121 does not prohibit an individual from exercising his or her
right of expressive association by joining a gang. Indeed, by the plain language of the
statute, it cannot be applied to a defendant simply because the defendant was a member
of a gang. Instead, the statute creates an enhanced punishment for defendants who
commit one of the defined “criminal gang offenses” and who were also a member of a
gang. Committing a criminal gang offense is not constitutionally protected conduct. See
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916 (1982) (“The First Amendment
does not protect violence.”); United States v. Chaidez, 916 F.2d 563, 564 (9th Cir. 1990)
(drug trafficking is “not even arguably constitutionally protected.”). Therefore, the
statute does not reach a substantial amount of constitutionally protected conduct.

      To the extent that the Defendant argues that the statute is overbroad because it
does not require “showing that the charged crime is in any way related to the
[D]efendant‟s alleged gang affiliations[,]” that argument is addressed above under the
due process analysis. However, the Defendant‟s claim that Tennessee Code Annotated


                                           - 12 -
section 40-35-121 violates his First Amendment rights to association and expression is
without merit.

                                Sufficiency of the Evidence

       Next the Defendant argues that there was insufficient evidence to support his
convictions for sale and delivery of less than .5 grams of cocaine in a drug-free zone
because the video of the drug transaction did not clearly show the intent of the parties
involved. He contends that Officer Pate gave him twenty dollars in order to buy cocaine
and that he intended to return with the drugs in order to smoke with Officer Pate. The
Defendant asserts that this explanation of the transaction was “just as likely to have
occurred” as the State‟s theory that the Defendant sold drugs to Officer Pate. The State
contends that there is sufficient evidence to support the Defendant‟s convictions. We
agree with the State.

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

        Tennessee Code Annotated section 39-17-417(a) states, in pertinent part, “It is an
offense for a defendant to knowingly . . . (2) [d]eliver a controlled substance; [or] (3)
[s]ell a controlled substance.” Cocaine is a Schedule II controlled substance. See Tenn.
Code Ann. § 39-17-408(b)(4) (2010). The drug-free zone statute states:

       A violation of § 39-17-417 . . . that occurs 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 elementary school, middle school, secondary
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       school, preschool, child care agency, or public library, recreational center
       or park shall be punished one (1) classification higher than is provided in §
       39-17-471(b)-(i) for such violation.

Tenn. Code Ann. § 39-17-432(b)(1) (2010).

        In this case, the Defendant essentially asks us to make a credibility determination
between his version of the transaction and Officer Pate‟s. Such credibility determinations
are left to the trier of fact, and we will not reweigh or reevaluate the evidence on appeal.
See Bland, 958 S.W.2d at 659. Further, the evidence presented at trial, viewed in a light
most favorable to the State, shows that the Defendant approached Officer Pate‟s vehicle
and learned that Officer Pate wanted twenty dollars‟ worth of crack cocaine. The
Defendant then instructed Officer Pate to move to another location. The Defendant again
approached Officer Pate‟s car, removed .08 grams of crack cocaine from a bag concealed
in his pants, gave the cocaine to Officer Pate, took twenty dollars from Officer Pate, and
walked away. This transaction took place within 1,000 feet of Knoxville Baptist
Christian School and Kidz Inkorporated Preschool. The evidence was sufficient to
support the Defendant‟s convictions for sale and delivery of less than .5 grams of cocaine
within a drug-free zone.

        However, we note that the record only contains judgments for Counts 1 and 5.
The judgment for Count 1 includes a note in the “Special Conditions” box that “Counts 2,
3, and 4 merge into the conviction for Count 1.” However, the record does not contain
judgments for Counts 2, 3, and 4, and no sentences were imposed for those counts. Our
supreme court has recently provided guidance as to the proper procedure for recording
judgments of merged convictions. See State v. Marquize Berry, No. W2014-00785-SC-
R11-CD, slip op. at 5 (Tenn. Nov. 16, 2015) (order granting Tenn. R. App. P. 11
application for appeal). On remand in this case, the trial court should impose sentences
for Counts 2, 3, and 4 and enter judgments for each conviction. Then, the trial court
should note in the “Special Conditions” box on the lesser (or merged) conviction that the
conviction merges with the greater offense. Id. Additionally, the merger should be noted
in the “Special Conditions” box of the greater conviction. Id.

                                     III. Conclusion

       As the Defendant has not identified any error in the guilt phase of his trial, the
Defendant‟s underlying convictions for sale and delivery of cocaine within a drug-free
zone are affirmed. Further, we conclude that the Defendant has failed to show that
Tennessee Code Annotated section 40-35-121 violates his rights to free association and
expression under the First Amendment. However, because Tennessee Code Annotated
section 40-35-121(b) violates substantive due process for lack of a nexus between the
underlying offense and the Defendant‟s gang affiliation, the judgment in Count 5 is
                                           - 14 -
reversed and dismissed, the judgment in Count 1 is modified to reflect a conviction for a
Class B felony and to remove reference to the gang enhancement statute, and the
Defendant‟s enhanced sentence for Count 1 is vacated. The case is remanded to the trial
court for resentencing in Court 1 and for sentencing and entry of judgments in Counts 2,
3, and 4.


                                                  _________________________________
                                                  ROBERT L. HOLLOWAY, JR., JUDGE




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