        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 3, 2014

         STATE OF TENNESSEE v. JOE TRAVIS NORTHERN, JR.

                 Appeal from the Criminal Court for Madison County
                     No. 13-405     Roy B. Morgan, Jr., Judge


               No. W2013-02757-CCA-R3-CD - Filed December 3, 2014


The defendant, Joe Travis Northern, Jr., was convicted by a Madison County Criminal Court
jury of possession of more than one-half ounce of marijuana with the intent to sell or deliver,
a Class E felony; possession of a firearm during the commission of a dangerous felony with
a prior felony, a Class D felony; possession of a firearm by a convicted felon, a Class E
felony; tampering with evidence, a Class D felony; and possession of drug paraphernalia, a
Class A misdemeanor, and was sentenced by the trial court as a Range II, multiple offender
to an effective term of eighteen years in the Department of Correction. On appeal, the
defendant challenges the sufficiency of the evidence in support of his convictions and argues
that the trial court imposed an excessive sentence. Following our review, we affirm the
judgments of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OBERT L. H OLLOWAY, J R., JJ., joined.

George Morton Googe, District Public Defender; and Jeremy B. Epperson, Assistant Public
Defender, for the appellant, Joe Travis Northern, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       On January 9, 2013, Jackson police officers executed a search warrant at the
defendant’s residence, where the defendant and a second man, Desmond Jones, were
present. Inside the home, the officers found loose marijuana floating in a just-flushed toilet,
plastic baggies containing marijuana, a box of plastic sandwich bags, two sets of digital
scales with marijuana residue, a marijuana grinder, a marijuana blunt, a police scanner, and
a 9- millimeter handgun. The defendant admitted to the officers that the marijuana, digital
scales, and police scanner belonged to him but claimed that he used them for his own
personal consumption and not for resale. He denied that the weapon was his. The defendant
was subsequently charged in a nine-count indictment with two counts of possession of more
than one-half ounce of marijuana with the intent to sell/deliver, four counts relating to the
possession of a firearm during the commission/attempt to commit a dangerous felony;
possession of a firearm by a convicted felon; tampering with evidence; and possession of
drug paraphernalia.

        At trial, Captain Christopher Wiser of the Jackson Police Department’s Gang
Enforcement Unit testified that he found in the home a loaded 9-millimeter Ruger P95
handgun in the kitchen in the space between the wall and a kitchen countertop and a set of
digital scales, an open box of sandwich bags, a marijuana grinder, a marijuana blunt, and a
bag of loose marijuana on the coffee table in the living room. On cross-examination, he
agreed that it would not be uncommon for someone who consumed marijuana to have a
marijuana grinder or a marijuana blunt in his or her home.

       Investigator Rodney Anderson of the Jackson Police Department’s Gang Enforcement
Unit testified that he found a police scanner in the living room of the home. He said that
police scanners can be used by drug dealers both to listen to “police traffic” and to possibly
pick up transmissions between the police and a confidential informant who is wearing a
“body wire.” On cross-examination, he testified that the police scanner was turned off when
they arrived to execute their search but that they turned it on and the device was working.

        Lieutenant Phillip Kemper of the Jackson Police Department’s Gang Enforcement
Unit testified that he found a set of black digital scales with marijuana residue under the
couch in the living room of the home. He said that digital scales are commonly used by both
sellers and buyers of narcotics to ensure that the amount being sold is accurate.

        Investigator Sam Gilley of the Jackson Police Department’s Gang Enforcement Unit,
the case officer in charge of the search, testified he entered the residence to hear a toilet
running in a bathroom near the area in which the SWAT Team had just detained the
defendant. He said he looked inside, saw marijuana floating on top of the water, and fished
it out of the bowl with the net he carried for such purposes. He also saw either a half-gallon
or a gallon-sized ziplock bag, with some remnants of marijuana still inside, lying on the floor
of the bathroom. Investigator Gilley explained that lower level street dealers typically

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purchase their supplies of marijuana in either a half-gallon bag, which will hold
approximately one-half pound, or in a gallon bag, which will hold approximately one pound.
He further testified that he and his officers pulled the toilet off the floor and were able to
“plainly see that the marijuana was flushed down the toilet also.” They were not, however,
able to retrieve the flushed marijuana from the sewer line.

       Investigator Gilley testified that he found approximately seven “twisted off baggies”
on the coffee table in the living room. He explained that these were common in the drug
trade:

       [I]f you’re selling somebody some marijuana and say they want to buy like a
       quarter ounce, you’d measure out three and a half, four or five grams of
       marijuana. You normally throw it on the scale in front of them, throw it on a
       baggie, tie the baggie up and put it in a little–you know, twist it around in the
       corner and tie a knot, or whatever you do.

Investigator Gilley testified that the portions of the baggies that he found on the coffee table
were consistent with someone selling, rather than buying, marijuana. He explained that if
one were a user or a buyer, he would have the cut off corner of the baggie that contained the
drugs rather than the remaining portion from which the corner had been cut off: “If you were
just a user, you would have the corner where the drugs are. There would be no reason for
that [the twisted off portion ] to be laying around your house unless you were selling drugs.”

       Investigator Gilley testified that the 9-millimeter Ruger handgun recovered from the
kitchen of the home was loaded with a clip containing ten bullets. He said that a handgun
is commonly used in the drug trade “for defense.” He agreed that the other items found in
the house, including the police scanner, digital scales, marijuana grinder, and plastic bags
were “consistent with the sale or delivery of marijuana” and that items consistent with the
smoking or consumption of marijuana, such as rolling papers or pipes, were not found in the
home. Finally, he identified the statement that the defendant gave in which he denied that
he sold drugs, disavowed any knowledge of the gun found in his home, and claimed that the
drugs and drug paraphernalia were items he used in his personal consumption of marijuana.
The defendant’s statement reads in pertinent part:

       Des [Desmond Jones] come to my house about a hour ago. He did not bring
       any drugs or weapons inside of my house. Des did not bring anything illegal
       inside of my house. The marijuana inside of that house is mine. I did not have
       any other drugs inside the house other than marijuana. The marijuana on the
       living room coffee table and the marijuana inside the toilet is all that I had. I
       did not have any guns inside of my house or on my property. I do not sell

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       marijuana, I only smoke marijuana. I only keep marijuana to smoke,
       depending on how much money I have. The scales and police scanner are
       mine. The other guy here does not have anything to do with what’s in my
       house.

       On cross-examination, Investigator Gilley acknowledged that, despite his direct
examination testimony that there were no items consistent with the consumption of marijuana
in the home, the home contained a blunt, “roaches” in an ash tray, and some “cigarillo”
packaging in the trash.

       Tennessee Bureau of Investigator Special Agent Shelandis Garrett, a forensic scientist
in the drug chemistry unit of the Memphis Laboratory, testified that the three samples
submitted for her analysis in the case consisted of a marijuana cigar, 2.07 grams of
marijuana, and 29.57 grams of marijuana. On cross-examination, she agreed that the total
weight of the marijuana in the two separate samples was 31.5 grams, which was just over one
ounce.

       Desmond Jones testified that he arrived at the defendant’s house moments before the
police officers arrived to execute the search warrant and that he did not bring any drugs or
weapons into the home. He stated that the defendant was in a back room when the officers
arrived. On cross-examination, he testified that he did not see the defendant with any drugs
or weapons.

       Eric Muhammad testified in the defendant’s behalf that, unbeknownst to the
defendant, he hid his 9-millimeter P60 Ruger pistol in the defendant’s kitchen when he left
for a quick trip to the store while visiting the defendant on the morning of the search. He
said that when he returned from the store and saw the drug task force at the defendant’s
home, he continued to his own home without stopping. On cross-examination, he testified
that he was somewhat familiar with handguns but would not be surprised to learn that the
pistol was a P95 rather than a P60 Ruger. He acknowledged that he and the defendant were
close friends and testified that he showed the pistol to the defendant when he arrived at his
home because he thought the defendant might purchase it. He was unable to explain why he
had felt it necessary to hide the pistol in the kitchen when he left for the store.

        The defendant elected not to testify and rested his case without presenting any further
proof. Following deliberations, the jury first convicted him of possession of more than one-
half ounce of marijuana with the intent to sell and with the intent to deliver, possession of
a firearm during the commission of or attempt to commit possession of marijuana with the
intent to sell and with the intent to deliver, tampering with evidence, and possession of drug
paraphernalia. After the State had presented evidence of the defendant’s criminal record in

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the second phase of the trial, the jury deliberated and convicted the defendant of the three
additional counts of the indictment relating to his having a prior conviction for aggravated
assault, including possession of a firearm by a convicted felon having been previously
convicted of the felony of aggravated assault. At the sentencing hearing, the trial court
merged the sale and delivery convictions in counts one and two and the firearm possession
convictions in counts three through six. The court found three applicable enhancement
factors: (1) the defendant’s previous history of criminal convictions or criminal behavior in
addition to those necessary to establish his range; (8) the defendant’s history of failure to
comply with the conditions of a sentence involving release into the community; and the
defendant’s history of having been adjudicated to have committed a delinquent act or acts
as a juvenile that would constitute a felony if committed by an adult. See Tenn. Code Ann.
§ 40-35-114(1), (8), (16) (2012). The trial court found no applicable mitigating factors.
Accordingly, the court sentenced the defendant as a Range II, multiple offender to three years
for the possession of marijuana with the intent to sell or deliver conviction, seven years for
the possession of a firearm during the commission of a dangerous felony conviction, seven
years for the possession of a firearm by a convicted felon conviction, eight years for the
tampering with evidence conviction, and eleven months, twenty-nine days for the
misdemeanor possession of drug paraphernalia conviction. The trial court ordered the seven-
year sentences to be served consecutively to the eight-year tampering with evidence sentence
and to the three-year possession with the intent to sell or deliver sentence, for an effective
term of eighteen years in the Department of Correction.

                                         ANALYSIS

                               I. Sufficiency of the Evidence

       The defendant first challenges the sufficiency of the evidence in support of his
convictions, arguing that the facts, while undisputed, do not support a finding that he was
anything other than a consumer of marijuana. When the sufficiency of the 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 (1979); see also 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.”); 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). 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

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all conflicts in 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.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       In support of his argument that the evidence is insufficient to show that he was
anything other than a consumer of marijuana, the defendant points to the officers’
acknowledgment that digital scales, plastic baggies, and a marijuana grinder are items
commonly used by both drug sellers and users. He also asserts that the police scanner was
“not functioning” when the officers arrived to execute the warrant and points out that his
friend acknowledged that the weapon was his. Finally, he argues that there was no evidence
that he “knew that officers were conducting an investigation for him to be found guilty of
[t]ampering with [e]vidence.” We respectfully disagree.

       When viewed in the light most favorable to the State, the evidence showed that the
defendant, who was no doubt surprised by the arrival of the officers, managed to flush a bag
of marijuana down the toilet just before the SWAT team made entry into his house. Inside
the home were items that were not only consistent with either the sale or consumption of
marijuana but also items that would commonly be found in the residence of someone who
was selling, rather than merely using, the drug. These included the remnants of the plastic
bags from which the corners that would contain a small amount of marijuana for resale had
been twisted or cut off, as well as the police scanner, which, according to Investigator
Anderson, was functioning, albeit not turned on, at the time the officers arrived to execute
the search. As for the loaded handgun the officers found hidden in the defendant’s kitchen,
it was within the province of the jury to disbelieve the defendant’s close friend, who claimed
ownership of the weapon, and to instead conclude that it belonged to the defendant. In sum,
we conclude that the evidence was sufficient for a rational jury to find the defendant guilty
of the offenses beyond a reasonable doubt.

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                                        II. Sentencing

        The defendant also contends that the trial court imposed an excessive sentence by
“fail[ing] to properly apply mitigating factors.” Specifically, he argues that mitigating factors
(1) and (13) should have been applied and resulted in the minimum sentences for the
offenses. We, again, respectfully disagree.

       Under the 2005 amendments to the sentencing act, a trial court is to consider the
following when determining a defendant’s sentence and the appropriate combination of
sentencing alternatives:

       (1) The evidence, if any, received at the trial and the sentencing hearing;

       (2) The presentence 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 the mitigating and
       enhancement factors set out in §§ 40-35-113 and 40-35-114;

       (6) Any statistical information provided by the administrative office of the
       courts as to sentencing practices for similar offenses in Tennessee; and

       (7) Any statement the defendant wishes to make in the defendant’s own behalf
       about sentencing.

Tenn. Code Ann. § 40-35-210(b).

       The trial court is granted broad discretion to impose a sentence anywhere within the
applicable range, regardless of the presence or absence of enhancement or mitigating factors,
and “sentences should be upheld so long as the statutory purposes and principles, along with
any enhancement and mitigating factors, have been properly addressed.” State v. Bise, 380
S.W.3d 682, 706 (Tenn. 2012). Accordingly, we review a trial court’s sentencing
determinations under an abuse of discretion standard, “granting a presumption of
reasonableness to within-range sentencing decisions that reflect a proper application of the
purposes and principles of our Sentencing Act.” Id. at 707.

       The record reflects that the trial court imposed the sentences after proper consideration

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of the purposes and principles of our sentencing act and consideration of both the State’s
proposed enhancement factors, as well as the defendant’s proposed mitigating factors and
the “catchall” mitigating factor, finding that no mitigating factors were applicable in the case.
We conclude, therefore, that the trial court did not abuse its discretion in sentencing the
defendant.

                                       CONCLUSION

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


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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