        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 10, 2009

                  STATE OF TENNESSEE v. TITUS A. MILLER

              Direct Appeal from the Circuit Court for Madison County
                       No. 07-676    Donald H. Allen, Judge




                  No. W2009-00458-CCA-R3-CD - Filed May 27, 2010


A Madison County jury convicted the defendant, Titus A. Miller, of simple possession of
marijuana and evading arrest, both Class A misdemeanors. The trial court sentenced the
defendant to eleven months, twenty-nine days for each conviction, to be served consecutively
to each other and to a sixty-month federal sentence. The court ordered the defendant to serve
the sentences in the county jail, with a release eligibility percentage of seventy-five percent.
On appeal, the defendant argues that the evidence was insufficient to support his convictions
and that the trial court erred by ordering him to serve his sentences consecutively. After
reviewing the record, the parties’ briefs, and applicable law, we affirm the judgments of the
Madison County Circuit Court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which JOHN E VERETT W ILLIAMS and
R OBERT W. W EDEMEYER, JJ. joined.

Gregory D. Gookin, Jackson, Tennessee, for the appellant, Titus A. Miller.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Shaun A. Brown, Alfred Earls and
Brian Gilliam, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                          Background
        In December 2007, a Madison County grand jury indicted the defendant on six counts:
(1) possession of marijuana with intent to sell or deliver; (2) aggravated assault; (3) evading
arrest; (4) resisting arrest; (5) driving while under the influence of an intoxicant; and (6)
violation of the seat belt law. The parties presented the following evidence at a jury trial on
October 1, 2008.

       State’s Proof. Officer Samuel Gilley, of the Jackson Police Department, testified that
around 7:30 p.m. on June 20, 2007, he observed the defendant driving on Highland Avenue
without wearing a seat belt. Officer Gilley initiated his emergency equipment, and the
defendant pulled over at the next side street. A second person, Michael Aldrich, was in the
front passenger seat. Officer Gilley asked for the defendant’s license and registration and
noticed that the defendant’s eyes were bloodshot, a smell of marijuana was coming from the
defendant’s person and the vehicle, and the defendant’s speech was slurred. Officer Gilley
believed the defendant was intoxicated and asked him to step out of the vehicle “to perform
some field sobriety tests on him.” The defendant complied.

         Officer Robertson arrived on the scene in a separate patrol car and stayed on the
passenger’s side of the car to watch Mr. Aldrich while Officer Gilley took the defendant to
the rear of the car, on the driver’s side. Officer Gilley testified that the defendant “began to
act a little funny, reaching around in his pants, reaching for his waistband and stuff like that.”
Officer Gilley asked the defendant to place his hands on his head and began to frisk him for
a weapon. The defendant became tense and started shaking. Officer Gilley “told him to
relax . . . and he began at that time to try to run and get away from me.” He grabbed the
defendant around the waist, and they “struggled a little bit . . . .” They ran by the partially
opened driver’s side door, and the defendant grabbed the door. The door hit Officer Gilley
in the face, and he “momentarily blacked out.” Officer Gilley testified that “what [he]
remember[ed] after that is being on the ground with him tussling” and he “struck [the
defendant] a couple of times . . . in the facial area.”

       As a result of the altercation, Officer Gilley had a knot above his right eye and was
bleeding from his eye socket. He received treatment at Convenient Care. His vision was
blurry, and he continued to have problems with his vision, resulting in the need to wear
eyeglasses. The defendant suffered injury to his mouth and received treatment at Jackson-
Madison County General Hospital.

       Officer Robertson helped Officer Gilley handcuff the defendant. When Officer Gilley
walked to the passenger-side of the car to get Mr. Aldrich “under control,” the defendant
began running away with Officer Robertson chasing him. Officer Gilley called for back-up.

       When other officers arrived on the scene, Officer Gilley requested that Officer Trey
Trull assist him in searching the vehicle because he “was a little bit disoriented and dizzy.”
They discovered a bag containing several smaller bags of marijuana in the car. Officer
Gilley testified that the packaging was consistent with the way marijuana is packaged for
resale. They did not find any drug paraphernalia. Officer Robertson recovered a small bag

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of marijuana that the defendant had dropped during the chase. The bag from the car
amounted to 13.9 grams of marijuana, and the bag dropped by the defendant weighed 5.5
grams of marijuana. The passenger, Mr. Aldrich, eventually pled guilty to possession of
marijuana.

        On cross-examination, Officer Gilley testified that in June 2007, his patrol car was
equipped with a video camera, but the camera was not operating due to a malfunction.
Officer Gilley said he saw the defendant “riding up and down Highland Avenue that day .
. . .” The first time Officer Gilley saw him, the defendant was wearing a seat belt, but fifteen
minutes later, he was not wearing it. Officer Gilley pulled him over because of the seat belt;
however, he did not follow the defendant long enough to determine his driving ability. The
defendant already had his license and registration ready to give to Officer Gilley by the time
he reached the defendant’s car. The defendant did not stumble or fall when he exited the car.
Officer Gilley said he smelled burning marijuana on the defendant and in the defendant’s car
but did not find anything in the car that would indicate that the occupants had recently
smoked marijuana. The bag of marijuana found by the officers in the car was stuffed
between the console and the passenger seat.

       Prior to pulling the defendant over, Officer Gilley had taken a break. He parked his
patrol car alongside Officer Robertson’s patrol car in the Software City parking lot. He
recalled that he testified at the preliminary hearing that he and Officer Robertson might have
discussed the defendant while they were on break, and one of them said, “Let’s go do
something.” Officer Robertson arrived on the scene soon after Officer Gilley pulled the
defendant over because he was in the area and heard Officer Gilley over the radio; Officer
Gilley denied that they had previously orchestrated Officer Robertson’s arrival.

       Officer Gilley agreed that he punched the defendant even though he had a baton and
pepper spray. He denied hitting the defendant as hard as he could and suggested that the
defendant’s injury might have come from hitting the ground during their struggle. Officer
Robertson did not strike the defendant in Officer Gilley’s presence. He agreed that the
defendant went to the Regional Medical Center in Memphis after he went to Jackson-
Madison County General Hospital. Officer Gilley did not ask the defendant to submit to
blood tests, nor did he obtain samples of the defendant’s blood from the hospital for testing.

       Officer Ashley Robertson, of the Jackson Police Department, testified that on June 20,
2007, he and Officer Gilley took a break together, and soon after they went back to work, he
heard Officer Gilley say over the radio that he was making a traffic stop on Hicks Street.
Officer Robertson was close to that location, so he went to Hicks Street to back up Officer
Gilley. He went to the passenger side of the car and tried to get identification from Michael
Aldrich. He heard Officer Gilley tell the defendant that he was going to frisk him for
weapons. Officer Robertson then heard a bang and saw Officer Gilley and the defendant

                                              -3-
struggling on the ground. By the time he got to them, the defendant was on his feet, so
Officer Robertson tackled him, and Officer Gilley handcuffed him. At that time, the
defendant complained that his jaw was broken. Officer Robertson was attempting to perform
a search of the defendant when the defendant ran away. As the defendant was running,
Officer Robertson saw him reach into his pants and then “something [fell] out of his pants.”
The defendant eventually ran into a structure at 112 Hicks Street, which is where Officer
Robertson caught up to him. Officer Robertson had another officer backtrack the chase, and
that officer found a bag of marijuana. Officer Robertson testified that the bag was consistent
with what he saw fall out of the defendant’s pants. He further testified that the defendant did
not strike him at any point. He did not transport the defendant to the hospital.

        On cross-examination, Officer Robertson said that Officer Gilley had seen the
defendant about fifteen minutes prior to the traffic stop, during their break. He agreed that
one of them said either “Let’s go to work” or “Let’s go do something” at the end of their
break. Officer Robertson testified that his patrol car did not have a video camera that day
because the department was in the process of replacing it. He denied punching the
defendant. He said the defendant was “spitting out big puddles of blood” and was injured
either from Officer Gilley punching him or Officer Robertson falling on him. He did not see
Officer Gilley punch the defendant and did not recall telling him that he had gone too far.
Officer Robertson said that the defendant dropped marijuana during the chase but not inside
his vehicle.

        Officer Trey Trull, of the Jackson Police Department, testified that on June 20, 2007,
he responded to a call either for assistance or that there was a foot pursuit. When he arrived
at the scene, he observed Officer Gilley leaning against a white Crown Victoria car. He
appeared dazed and asked Officer Trull for assistance in searching the car. Officer Trull
pointed out the bag of marijuana, which Officer Gilley recovered. Officer Trull was present
when Officer Robertson led the defendant back to the vehicle. He was unable to tell what
condition the defendant was in at that time.

       Special Agent Tarsha Bond, a forensic scientist with the Tennessee Bureau of
Investigation, testified that she tested substances related to this case. She determined that the
substances in both the bag containing smaller bags and the individual bag were marijuana.
The total weight of the marijuana in both bags was 15.6 grams.

       Defense Proof. Renarda Ford testified that on June 20, 2007, she lived at 320 East
Forest Avenue, near Highland Avenue. On that day, she witnessed the traffic stop on Hicks
Street. She testified that she

       saw [the defendant] getting out of the car and an officer taking one hand and
       putting it behind his back and putting him on the ground and the officer then

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       placed his knee on the back of his neck. After that, another officer came from
       the passenger side of the car around and started punching [the defendant].

She did not see the defendant provoke the officers or hit one of the officers with a car door.
When Ms. Ford saw the incident, she did not recognize the defendant, whom she knows
through a friend, but she learned later that he was involved.

       On cross-examination, Ms. Ford testified that she was behind the two patrol cars
during the incident and was far enough away that she could not identify the faces of those
involved. She did not report the incident to authorities.

        The defendant testified that on June 20, 2007, he was wearing his seat belt when
Officer Gilley pulled him over. He was not under the influence of any drugs and had not
been smoking marijuana. When he stepped out of his car, he was nervous, and he told the
officer that he had pulled him over for no reason. Officer Gilley became “irate” and threw
the defendant to the ground. Officer Robertson came from the other side of the car and
began punching him, seven to eight times. The officers handcuffed him while he was lying
on the ground and walked several feet away. He heard Officer Gilley tell Officer Robertson
that he had gone too far. The defendant said that the officers’ conversation made him afraid
for his life because he thought they might plant evidence on him and then kill him. He got
up and went to a yard on Hicks Street where people were outside and “laid down in the grass
so that someone would be witnessing what was going on . . . .”

       The defendant said that Officer Robertson took him to Jackson-Madison County
General Hospital. The defendant told the nurses that the police had beaten him. After thirty
minutes, Officer Robertson uncuffed him and left. The attending doctor told him that the
hospital would transfer him to the Regional Medical Center in Memphis, where an oral
surgeon would repair his jaw. The defendant testified that his mouth was wired shut for ten
weeks. He identified pictures that he took of other injuries he sustained on June 20,
including scrapes on the left side of his face, his shoulder, and his knees. He denied hitting
Officer Gilley with a car door and denied that the small bag of marijuana was his.

       On cross-examination, the defendant said that he had used marijuana in the past. He
recalled that Officer Robertson slid on his knees, on hard pavement, when he came to the
driver’s side of the car and began punching him. The defendant said that Michael Aldrich
witnessed everything and testified on his behalf at the preliminary hearing. Mr. Aldrich had
since pled guilty to possession of the marijuana in the car. The defendant said that the
marijuana in the car was solely Mr. Aldrich’s. When asked why the officers would beat him,
the defendant said he believed the officers’ conduct was racially-motivated, and they had
planned to give “a nice little beat down on somebody” while their patrol car cameras were
not working.

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        After deliberations, the jury found the defendant not guilty of aggravated assault,
resisting arrest, driving while intoxicated, and violation of the seat belt law. The jury found
him guilty of evading arrest and the lesser-included offense of simple possession of
marijuana.

        The trial court held a sentencing hearing on October 24, 2008. At the hearing, the
defendant testified that he was incarcerated in West Virginia on a felony firearm conviction.
The federal judge sentenced him to sixty months. The defendant asked for concurrent
sentences based on the fact that the jury acquitted him of four of the charged offenses. He
testified that he was twenty-seven years old and had a two-year-old daughter, who lived in
West Virginia with her mother.

        The trial court found that the defendant had an extensive criminal history. The court
did not consider the defendant’s minor traffic offenses for enhancement purposes. The court
considered the defendant’s convictions from Haywood County, which were unlawful
possession of drug paraphernalia, evading arrest, and possession of marijuana; his conviction
in Shelby County for possession of drugs; his convictions in Madison County for possession
of marijuana with intent to sell, possession of a deadly weapon with intent to employ in the
commission of a felony, unlawful possession of drug paraphernalia, simple possession of
marijuana (twice), evading arrest, and violation of the seat belt law; his conviction in
Hardeman County for selling drugs; and his federal firearms conviction. In total, the
defendant had two Class E felonies, ten misdemeanor convictions, and a federal felony
conviction. The court found that the defendant had a history of unwillingness to comply with
the conditions of probation because he committed several offenses while on probation and
had his probation revoked once. The court did not find any mitigating factors. The court
sentenced the defendant to eleven months, twenty-nine days for evading arrest and eleven
months, twenty-nine days for simple possession. The court ordered the defendant to serve
the sentences consecutively because of his extensive criminal history. The court further
ordered that the sentences be consecutive to the federal sentence because the defendant was
out on bond on state charges1 when he committed the instant offenses. The defendant then
filed this timely appeal.

                                                 Analysis

        On appeal, the defendant alleges that the evidence was insufficient to support his
convictions of evading arrest and simple possession of marijuana. He further challenges the
trial court’s imposition of consecutive sentencing, arguing that his criminal history was not
so extensive as to merit consecutive sentences.

        1
          The state dismissed the charges when the defendant pled guilty in federal court because the federal
and state charges were based on the same offense.

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                                   Sufficiency of the Evidence
        Our review begins with the well-established rule that once a jury finds a defendant
guilty, his or her presumption of innocence is removed and replaced with a presumption of
guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the
convicted defendant has the burden of demonstrating to this court why the evidence will not
support the jury’s verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). To meet this burden, the defendant must
establish that no “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); State v. Evans,
108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In contrast, the jury’s verdict
approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor
of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the
strongest legitimate view of the evidence and all reasonable inferences which may be drawn
from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value
to be given the evidence, and all factual issues raised by the evidence are resolved by the trier
of fact and not this court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not
attempt to re-weigh or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn.
2002); Bland, 958 S.W.2d at 659. Likewise, we do not replace the jury’s inferences drawn
from the circumstantial evidence with our own inferences. See State v. Elkins, 102 S.W.3d
581, 582 (Tenn. 2003); Reid, 91 S.W.3d at 277.

        To sustain the defendant’s conviction for simple possession of marijuana, the state had
to prove beyond a reasonable doubt that the defendant knowingly possessed a controlled
substance, unless the substance was obtained via a prescription of a practitioner. See Tenn.
Code Ann. § 39-17-418(a). As for the defendant’s conviction for evading arrest, the state
had to prove beyond a reasonable doubt that the defendant intentionally fled, by any means
of locomotion, from anyone that the defendant knew to be law enforcement if the defendant
either knew the officer was attempting to arrest him or the officer had arrested him, and the
arrest was lawful. See Tenn. Code Ann. §39-16-603.

        Viewing the evidence in the light most favorable to the state, we conclude that the
evidence was sufficient to support the defendant’s convictions. In this matter, Officer
Robertson testified that the defendant dropped a bag while he was running from the officer.
Another officer recovered the bag, and a forensic scientist determined that the substance in
the bag was marijuana. Additionally, the defendant testified that he ran from the officers
after he had been handcuffed. Officer Gilley testified that he stopped the defendant because
the defendant was not wearing a seat belt, initiated a frisk because the defendant was
agitated, and handcuffed the defendant after the defendant’s first attempt to flee. The jury’s
verdict accredited the state’s witnesses and resolved any conflicts in favor of the state.


                                               -7-
Harris, 839 S.W.2d at 75. The state proved that the defendant possessed a bag of marijuana
that he dropped while fleeing, in handcuffs, from law enforcement. Therefore, the evidence
is sufficient to support the defendant’s convictions for evading arrest and possession of
marijuana. The defendant is without relief as to this issue.

                                    Consecutive Sentencing
       An appellate court’s review of a challenged sentence is de novo on the record with a
presumption that the trial court’s determinations are correct. Tenn. Code Ann. § 40-35-
401(d). The Sentencing Commission Comments to this section of the statute indicate the
defendant bears the burden of establishing that the sentence is improper. When the trial court
follows the statutory sentencing procedure and gives due consideration to the factors and
principles relevant to sentencing, this court may not disturb the sentence. State v. Carter, 254
S.W.3d 335, 344-45 (Tenn. 2008).

       A trial court is allowed greater flexibility in setting misdemeanor sentences than
felony sentences. State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999). No
separate sentencing hearing is required, though the court must give the defendant a
reasonable opportunity to be heard regarding the length and manner of service of the
sentence. Tenn. Code Ann. § 40-35-302(a). There is no presumption of a minimum
sentence. State v. Humphreys, 70 S.W.3d 752, 768 (Tenn. Crim. App. 2001).

        The sentence must be specific and in accordance with the principles, purposes, and
goals of the Sentencing Act. Tenn. Code Ann. § 40-35-302(b); State v. Palmer, 902 S.W.2d
391, 393 (Tenn. 1995). A determinate sentence should be set with a percentage of not
greater than 75 percent to be served in confinement. Tenn. Code Ann. § 40-35-302(d). The
trial court should consider the enhancement and mitigating factors when calculating the
percentage of the sentence to be served in confinement. Id.; State v. Troutman, 979 S.W.2d
271, 274 (Tenn. 1998). The trial court is authorized to place the misdemeanant on probation
either immediately or after a term of confinement. Tenn. Code Ann. § 40-35-302(e).

       A court may order sentences to run consecutively if the court finds by a preponderance
of the evidence that:

       (1) [t]he defendant is a professional criminal who has knowingly devoted such
       defendant’s life to criminal acts as a major source of livelihood;

       (2) [t]he defendant is an offender whose record of criminal activity is
       extensive;




                                              -8-
       (3) [t]he defendant is a dangerous mentally abnormal person so declared by a
       competent psychiatrist who concludes as a result of an investigation prior to
       sentencing that the defendant’s criminal conduct has been characterized by a
       pattern of repetitive or compulsive behavior with heedless indifference to
       consequences;

       (4) [t]he defendant is a dangerous offender whose behavior indicates little or
       no regard for human life, and no hesitation about committing a crime in which
       the risk to human life is high;

       (5) [t]he defendant is convicted of two (2) or more statutory offenses involving
       sexual abuse of a minor with consideration of the aggravating circumstances
       arising from the relationship between the defendant and victim or victims, the
       time span of defendant’s undetected sexual activity, the nature and scope of the
       sexual acts and the extent of the residual, physical and mental damage to the
       victim or victims;

       (6) [t]he defendant is sentenced for an offense committed while on probation;
       or

       (7) [t]he defendant is sentenced for criminal contempt.

Tenn. Code Ann. § 40-35-115(b); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).
The general principles of sentencing require that the length of sentence be “justly deserved
in relation to the seriousness of the offense” and “be no greater than that deserved for the
offense committed.” State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002) (citing Tenn. Code
Ann. §§ 40-35-102(1) and -103(2)).

        The defendant admits that he has more than ten misdemeanor convictions, two state
felony convictions, and a federal felony conviction. He argues, however, that the trial court
should not have considered traffic violations when determining the extent of the defendant’s
criminal history. The trial court specifically gave no weight to the numerous traffic
violations on the defendant’s record. In fact, of the ten misdemeanors considered by the trial
court, only one - a seat belt violation that the defendant committed while on probation - was
a traffic violation. The other nine misdemeanors were related to either marijuana possession
or evading arrest, the exact offenses for which the jury convicted the defendant of in this
matter. The defendant also has a total of three felony convictions. We find the defendant’s
argument that he does not have an extensive criminal history to be unpersuasive. We
conclude that the trial court did not err in imposing consecutive sentences. The defendant
is, therefore, without relief as to this issue.


                                             -9-
                                Conclusion

Based on the foregoing reasons, we affirm the judgments of the trial court.




                                           ___________________________________
                                           J.C. McLIN, JUDGE




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