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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
May 18, 2010 Session STATE OF TENNESSEE v. ARTURO JAIMES-GARCIA

Direct Appeal from the Criminal Court for Davidson County No. 2006-D-3175 Mark J. Fishburn, Judge

No. M2009-00891-CCA-R3-CD - Filed December 22, 2010

A Davidson County jury convicted the Defendant, Arturo Jaimes-Garcia, of multiple drug offenses relating to three different drug sales, and the trial court imposed an effective sentence of eighteen years in the Tennessee Department of Correction. On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his convictions; (2) the DrugFree School Zone statute is unconstitutionally vague and unconstitutional as applied to the facts of this case; (3) the trial court improperly enhanced his punishment because the State did not give him adequate notice of its intent to seek an enhanced sentence; (4) the State committed prosecutorial misconduct during its closing argument; and (5) three of the Judgment of Conviction forms contain errors. The State contends that this appeal should be dismissed because the Defendant's amended motion for new trial was not timely filed, and he failed to file a timely notice of appeal. After a thorough review of the record and applicable authorities, we conclude that the trial court improperly permitted the Defendant to file an amended motion for new trial. Therefore, we review the issue properly preserved by his original motion for new trial, the sufficiency of the evidence, and conclude that the evidence is sufficient to sustain all of his convictions. We conclude, however, that two of those convictions violate his double jeopardy protections. Those convictions are, therefore, merged or dismissed in accordance with the reasoning below. Further, we have reviewed for plain error the issues the Defendant failed to properly preserve but hold that the Defendant is not entitled to relief on any of those issues. This case is remanded for the entry of corrected judgments in accordance with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in part, Reversed in Part and Remanded R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D AVID H. W ELLES and J ERRY L. S MITH, JJ., joined.

Chance Deason, Henderson, Tennessee (at trial) and Peter D. Heil (on appeal), Nashville, Tennessee, for the Appellant, Arturo Jaimes-Garcia a/k/a Antonio James. Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; John Zimmerman and Kristen Menke, Assistant District Attorneys General, for the Appellee, State of Tennessee. OPINION I. Facts This case arises from the Defendant's sale of cocaine in a school zone to a confidential informant on three occasions. For these offenses, a Davidson County grand jury indicted the Defendant for: one count of conspiracy to sell 300 grams or more of cocaine within 1000 feet of a school; two counts of sale of 26 grams or more of cocaine; one count of possession with intent to deliver 300 grams or more of cocaine within 1000 feet of a school; one count of sale of 300 grams or more of cocaine; and one count of possession with intent to sell over 0.5 grams of cocaine. At the Defendant's trial, the State presented the following evidence: Several officers, including James McWright, an officer with the Nashville Metro Police Department's 20th Judicial District drug task force, testified about the investigation that led to the arrest of the Defendant, his wife, his nephew, and his nephew's girlfriend. The investigation began when officers arrested Walter Sawyers, who agreed to cooperate with police and told police that a man named "Juan" supplied him with drugs. In cooperation with police, Sawyers arranged to purchase drugs from his supplier, "Juan," in a series of three transactions. Sawyers informed officers that "Juan's Uncle" sometimes assisted in the drug transactions. Before the first drug transaction on August 3, 2006, officers knew only that Sawyers's supplier's name was "Juan" and that Juan and his uncle both participated in selling Sawyers drugs. Sawyers, who said he did not know where Juan or his uncle lived, contacted Juan by telephone and arranged the purchase of two ounces of cocaine for $1200. Officers gave Sawyers money to purchase the drugs. At the arranged time, Juan's uncle, who officers then determined was the Defendant, arrived and conducted the drug sale. Officers then followed the Defendant to apartment C-3 in the Holly Hills apartment complex, where the Defendant entered with a key, and the officers then began surveillance of his residence. Officer McWright followed the Defendant to multiple gas stations and apartment complexes that day before he terminated his surveillance. The officers intermittently conducted surveillance of the apartment they saw the Defendant enter, and they discovered that the Defendant also used apartment D-8 in the same apartment complex. Officers identified "Juan" as Juan JeminezJaimes. Officer McWright obtained electric company records, which indicated that the electric bill for apartment C-3 was listed in the name Betsy Elizabeth Martinez, who he later learned was Jeminez-Jaimes's girlfriend, and the electric bill for apartment D-8 was listed in the Defendant's name.

In the second drug transaction, which occurred on August 8, 2006, Sawyers attempted to arrange a purchase of two ounces of cocaine from Jaminez-Jaimes for $1200. When Sawyers arrived, with $1200 of police drug buy money, he was met by the Defendant, who informed him that he thought Sawyers wanted to purchase two kilos of cocaine. Sawyers explained the mix-up, and Jeminez-Jaimes arrived and stayed with Sawyers while the Defendant returned to apartment D-8 with the two kilos of cocaine. The Defendant returned with a different amount of cocaine and inadvertently Sawyers ended up with eight ounces of cocaine, for which he had paid only $1200. After Sawyers left, Jeminez-Jaimes called Sawyers and asked him to return the drugs he had received in error. Sawyers told JeminezJaimes that he would purchase another half kilo the following day, and also pay JeminezJaimes for the extra drugs that he had received. Sawyers agreed to give the Defendant $12,800 for the half-kilo of cocaine and the extra cocaine he had received in error. In the third drug transaction, which occurred on August 9, 2006, Officer McWright along with other officers set up surveillance of apartments C-3 and D-8. Officers were following both the Defendant and Juan Jeminez-Jaimes and communicating with each other via police radio. Shortly after noon, Officer McWright saw the Defendant, Betzy Martinez, Martinez's younger sister, and a child exit apartment C-3. The Defendant entered apartment D-8, and the other three people left the complex in a SUV. Officer McWright then saw Jeminez-Jaimes exit apartment C-3 and leave the complex in a different SUV. Officer McWright followed Jeminez-Jaimes to Nashville Auto Sales, which is two to three miles from the apartments. Later that day Officer McWright conducted surveillance of apartment D-8 based upon Sawyers's arrangement to purchase a half-kilo of cocaine from Jeminez-Jaimes The officer observed the Defendant arrive at the apartments and speak to his wife, Antonia Diaz-Reyes. Diaz-Reyes went into apartment D-8, and the Defendant entered apartment C-3 using a key. The Defendant then left the apartment complex. Police officer Herbert Kajihara followed as the Defendant traveled on a road adjacent to Paragon Mill Elementary School on his way to another apartment complex. Officer Kajihara saw the Defendant stop at a three-way intersection, which dead-ended into the school. At that stop sign, where the Defendant stopped, he was within twenty-five feet of the school. The Defendant then turned left and drove past the school and traveled on to the apartment complex. When the Defendant arrived at the complex, he parked his car, opened the hood and the trunk, and stood near his car. It was the location of this drug sale that the State alleged was within a 1000 feet of a school zone. After Sawyers arrived at the apartment complex parking lot, the Defendant took a bag of cocaine out of his trunk and gave Sawyers the cocaine. Sawyers gave the Defendant the money, which the Defendant "tossed" into the back seat of the Defendant's car. At that point, pursuant to Officer McWright's instructions, officers arrested the Defendant, who was still in possession of the $12,800 that Sawyers paid him. Officers retrieved the bag of

cocaine from Sawyers and arrested Jeminez-Jaimes, as well. Upon arrest, Jeminez-Jaimes gave police a false identity, and he was found in possession of false identification. He carried $6139 in cash and one cell phone, and officers found another cell phone in his Tahoe. Officers identified the telephone numbers of these cell phones and determined that multiple calls had been placed between these phones and the Defendant's phone on the day of the drug sale. Phone records also indicated that calls were placed between the phone Jeminez-Jamines carried and the phone belonging to Sawyers. Officers examined the paper money found on Jeminez-Jaimes, and some of the money matched the photocopies they had of the drug buy money used by Sawyers to purchase drugs during the second drug buy. Officer McWright testified that he had previously obtained search warrants for both apartments C-3 and D-8, and that, after arresting the Defendant and Jeminez-Jaimes, he went to the apartments in anticipation of executing those warrants. The officer, however, had to wait for other officers to become available to assist him, so he set up surveillance. During this surveillance, he saw Reyes exiting apartment D-8 carrying a trash bag, so he asked another officer to take her into custody and to seize the trash bag. Betzy Martinez came back to the apartment, and officers arrested her before she entered the apartment. Officers then executed search warrants on both apartments. In apartment C-3, officers, assisted by K-9 officers, found a half-kilo of cocaine in a purple bag, which was inside a Christmas tree box. They also found baggies, Inositol powder, which is used to cut cocaine, photographs and paper work. In apartment D-8, officers found two small bags of cocaine inside a box of zip baggies, a digital scale, baggies, and $700 in cash. In D-8, officers also found the Defendant's ID cards, a pay stub from past employment in another State, and family photographs. Upon searching Martinez's SUV, officers determined that the SUV had been purchased by Jeminez-Jaimes. On cross-examination, Officers McWright, Thomas, and Rigsby each testified that he never personally observed the Defendant within 1000 feet of a school zone during the August 9 drug sale. The officers said that the investigation revealed that Martinez listed her employer as Nashville Auto Sales. During the cross-examination of the other officers who testified, the officers testified that Inositol, which is used as a cutting agent for cocaine, is sold legally as a baby laxative or vitamin supplement. The officers agreed children were sometimes at the apartment, and the Inositol could have been for the children. On redirect, however, one officer noted that he saw no items belonging to a baby when he searched the apartment. The State introduced audio recordings of the telephone calls between Sawyers and Jeminez-Jaimes setting up the drug buys. The State also introduced booking forms completed by the Defendant in which he listed his residence as apartment D-8 and did not

offer any employment information. Walter Sawyers, the confidential informant, testified that the State offered him a plea deal in part because of his cooperation with police during this investigation. Sawyers recalled the events leading to his arrest, stating that he and his wife were arrested shortly after delivering twenty pounds of marijuana and, after searching his home, police found more marijuana and over $100,000. Sawyers agreed to plead guilty to conspiracy to deliver over seventy pounds of marijuana, a Class B felony, in exchange for a split confinement sentence of eight years with one year served in prison and the remainder on probation. His wife also reached an agreement with the State in which she would plead to a Class C felony and serve a suspended three-year sentence. After his arrest, Sawyers cooperated with police by disclosing the name of his supplier, Jeminez-Jaimes, and placing a call to Jeminez-Jaimes asking to purchase one hundred pounds of marijuana, a transaction the two had earlier arranged. Because JeminezJaimes did not have any marijuana, Sawyers called him and asked to purchase two ounces of cocaine. The two agreed to a price of $600 per ounce and a meeting place to exchange the money for the drugs. All of Sawyers telephone conversations with Jeminez-Jaimes were recorded and played for the jury. Sawyers said that, shortly after he arrived at the agreed meeting place, the Defendant brought him the drugs, and Sawyers gave the money to the Defendant. Immediately following the transaction, Sawyers went to the police precinct to give the purchased drugs to the police. Sawyers testified that he called Jeminez-Jaimes to arrange the second drug transaction for two ounces of cocaine. Jeminez-Jaimes told him to go to the same meeting place. Jeminez-Jaimes arrived at the agreed upon location shortly after the Defendant and told Sawyers that the Defendant had brought two kilos, rather than the previously agreed upon two ounces. Jeminez-Jaimes said the Defendant was going to "go back" and "fix it." Sawyers said he and Jeminez-Jaimes stayed and talked while they waited for the Defendant to return. The Defendant arrived a short time later and handed Sawyers the cocaine wrapped in a red towel. Sawyers paid the Defendant and returned to the police precinct where he discovered he had received more cocaine than he paid for. Jeminez-Jaimes called him and asked him to return the extra drugs. Sawyers relayed this information to police, who told him to ask Jeminez-Jaimes if he could pay him for the extra drugs, and also purchase an additional half of a kilo the following day. Jeminez-Jaimes agreed. The following day, the third drug transaction occurred, and Sawyers went to the agreed upon meeting place in the parking lot of an apartment complex. When Sawyers arrived, the Defendant was already present. The two exchanged money for drugs after which Sawyers went to the police precinct and gave police the drugs. Sawyers admitted he had several previous convictions, which included: possession

of under .5 grams of cocaine, misdemeanor theft, misdemeanor criminal impersonation, possession of drug paraphernalia, resisting arrest, and escape. On cross-examination, Sawyers agreed he did not offer to cooperate with police until he was arrested on drug charges. The State offered several witnesses who testified about Paragon Mills Elementary School. David Kline of the Metro Planning Department introduced a map he created that depicted the school with a 1000-foot ring around the school. Steve Keel with Metro Nashville Public Schools testified that Paragon Mills Elementary School had been in existence since 1965 and was open for enrollment on August 9, 2006, and that students likely were present at the school for registration at the time of the drug transaction. Keel agreed during cross-examination that none of the acts for which the Defendants were on trial endangered the children present at the school that day. The State presented the testimony of two agents from the Tennessee Bureau of Investigations ("TBI") who testified about the substances received during the drug buys or as a result of the police search of apartments C-3 and D-8. Agent Dunlap testified that the substance received during the first drug buy was cocaine weighing a total of 55.5 grams. Agent Glenn said that the substance received during the second drug buy was cocaine weighing a total of 248.9 grams. Agent Glenn testified that he determined the substance received during the third drug buy was also cocaine that weighed 502.9 grams. Agent Glenn tested the substance found inside apartment C-3 and determined that it also was cocaine that weighed 251.6 grams. Agent Glenn tested the substance found inside apartment D-8 and determined it was cocaine packaged in two separate baggies, one weighing 8.9 grams and the other weighing 7 grams. The Defendant testified, through an interpreter, that he traveled from his apartment complex to another apartment complex, on August 9, 2006, but he said he took a different route than the one described by the officers who had testified. The route he described was not within the school zone. The Defendant said that, when he arrived at the second apartment complex, he conducted the "transaction" with the informant. The Defendant did not deny meeting Sawyers. On cross-examination, the Defendant testified he had lived in Nashville for three or four months before he was arrested in this case. During that time, he looked for work but was unable to secure employment based upon his lack of a social security number. The Defendant said he conducted the three drug transactions with Sawyers and that Jeminez-Jaimes told him to deliver the drugs to Sawyers. The Defendant said another person gave the cocaine to him, which he then placed in apartment C-3, but he said he did not "really know them." He said he got the cocaine from apartment C-3 and took it to be delivered. The Defendant said that, after each buy, he gave the money he received to Jeminez-Jaimes. The Defendant agreed that he did not speak English and that Sawyers did not speak Spanish,

so they need Jeminez-Jaimes, who spoke both, to interpret for them. Jeminez-Jaimes testified that he was married and his "main residence" was with his wife in a location different from the apartments involved in this case. The Defendant, his uncle, sometimes borrowed money from him and he sometimes borrowed money from the Defendant. The two spoke on the phone frequently and spent the holidays together. Jeminez-Jaimes conceded that Betzy Martinez was his girlfriend with whom he rented apartment C-3. Jeminez-Jaimes said that, while the two shared an apartment, he visited Martinez usually twice a day but never spent the night in the apartment, instead returning to the home he shared with his wife. Jeminez-Jaimes denied any knowledge of the cocaine found in the apartment. Jeminez-Jaimes said that he was employed part-time with a landscaping company, and he also bought, fixed up, and resold cars, which was, he said, quite profitable. JeminezJaimes recalled that, around the time of these drug transactions, the Defendant told him that he needed his assistance communicating with another person. The Defendant gave him a telephone and told him to answer it and tell him what the person said. The Defendant told him that he did not have to deliver or touch "it," so there was not going to be a problem. Jeminez-Jaimes said he felt obligated to help his uncle because his uncle needed money and did not understand English. Jeminez-Jaimes maintained that he only translated for the Defendant, who told him what to say to Sawyers and where to tell Sawyers to meet. The Defendant asked Jeminez-Jaimes to tell him what Sawyers said in response. Jeminez-Jaimes explained that Sawyers told Jeminez-Jaimes that he could not hear him on the cell phone he was using, and Jeminez-Jaimes opined that this was perhaps because he was using a prepaid cell phone. He then gave Sawyers his personal cell phone number, which he used to communicate with Sawyers. Jeminez-Jaimes testified that the Defendant was in charge of the drug deals, and Jeminez-Jaimes's role was simply to facilitate communication. Jeminez-Jaimes explained that he was carrying a large amount of money when he was arrested because he was on his way to Nashville Auto Sales to purchase two cars. He had borrowed $1000 from the Defendant and the remaining $5000 belonged to him. He said he did not share in the proceeds from these drug sales. On cross-examination, Jeminez-Jaimes testified that he knew when he was interpreting that he was interpreting for purposes of a drug transaction. Based upon this evidence, the Defendant was convicted of several offenses: Count One: conspiracy to sell 300 grams or more of cocaine within 1000 feet of a school zone, a Class A felony; Count Two: sale of 26 grams or more of cocaine, a Class B felony; Count Three: sale of 26 grams or more of cocaine, a Class B felony; Count Four: possession with intent to deliver 300 grams or more of cocaine within 1000 feet of a school zone, a Class A

felony; Count Five: sale of 300 grams or more of cocaine, a Class B felony; and Count Seven: possession with intent to sell or deliver 26 grams or more of cocaine. The trial court merged Count Five with Count Four and, after ordering all his sentences be served concurrently, sentenced the Defendant to an effective sentence of eighteen years. II. Analysis On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his convictions; (2) the Drug-Free School Zone statute is unconstitutionally vague and unconstitutional as applied to the facts of this case; (3) the trial court improperly enhanced his punishment because the State did not give him adequate notice of its intent to seek an enhanced sentence; (4) the State committed prosecutorial misconduct during its closing argument; and (5) three of the Judgment of Conviction forms contain errors and must be corrected. A. Motion for New Trial After the verdict in this case, the Defendant's counsel expressed concern that the jury had convicted the Defendant of conspiracy to sell 300 grams or more of cocaine in a school zone but had only convicted Jeminez-Jaimes of conspiracy to sell 300 grams or more of cocaine, omitting the school zone enhancement. The parties posited to the court that it should delete the drug-free school zone enhancement from the judgment. The trial court agreed, and entered a judgment of conviction omitting the school zone enhancement. The trial court entered the final judgments in this case on December 17, 2007. The Defendant filed his first motion for new trial on January 8, 2008. Following a hearing on February 8, 2008, the trial court denied the Defendant's motion for new trial, as evidenced by the trial court's written minute entry. On February 25, 2008, the trial court appointed the Defendant appellate counsel. The Defendant's appellate counsel filed a motion to allow amendments to the motion for new trial. At a hearing on this motion, the Defendant contended that the trial court retained jurisdiction over the case because, while the trial court made a minute entry of its denial of the motion, it did not enter a written order denying the motion. The trial court agreed and granted the motion to amend the motion for new trial on April 10, 2008. On November 13, 2008, the Defendant filed an amended motion for new trial. At the hearing on this motion, the Defendant's counsel reminded the trial court that, after the conclusion of proof in the case, the jury had convicted the Defendant in Count 1 for conspiracy to sell 300 grams or more of cocaine in a school zone but found Jeminez-Jaimes not guilty of conspiracy to sell 300 grams or more of cocaine in a school zone, finding him guilty of only the offense of conspiracy to sell 300 grams or more of cocaine, without the

school zone enhancement. The parties therefore agreed the trial court should amend the Defendant's guilty verdict to the offense of conspiracy to sell 300 grams or more of cocaine, but not in a school zone. The Defendant asserted that, because this was done after the jury verdict was rendered, the trial court had no authority or jurisdiction to amend the verdict. The Defendant's counsel asked the trial court to declare a mistrial on this basis or, because one cannot alone be found guilty on a conspiracy theory of criminal responsibility, to enter a judgment of not guilty. In a written order dated April 8, 2009, the trial court denied the Defendant's amended motion for new trial. The trial court acknowledged that it did not have the authority to modify the jury's verdict to reflect the lesser-included offense of conspiracy to sell cocaine not in a school zone. The trial court ordered: Since the jury found [the Defendant] and Mr. J[e]m[i]nez-Jaimes guilty of conspiracy to violate T.C.A. 39-14-497(j)(5), then the conspiracy verdicts are valid. The jury then found beyond a reasonable doubt that Mr. Jaimes-Garcia had committed an overt act individually i.e. driving within a designated school zone en route to a predetermined drug sell, in furtherance of the conspiracy. Consequently, the Court did err in not sentencing Mr. Jaimes-Garcia under the [Drug Free School Zone] enhancement statute T.C.A. 39-17-432. Accordingly, an amended judgment will be entered to sentence the Defendant according to the provisions of the enhancement statute. The trial court also in its order merged Count 4, possession with intent to deliver more than 300 grams of cocaine with Count 5, sale of more than 300 grams of cocaine, explaining that double jeopardy prohibits multiple drug convictions arising out of a single drug transaction. Finally, the trial court found that double jeopardy required that Count 7 be dismissed with prejudice. It explained that Count 7 involved a conviction for possession with intent to sell .5 grams or more of cocaine on August 9, 2006 (the cocaine found in the Defendant's apartment pursuant to a search a few hours after his arrest). Therefore, the trial court dismissed Count 7 with prejudice because dual convictions for possession with intent cannot stand where law enforcement caused the defendant to divide the drugs for purposes of selling or delivering only a portion of the whole amount. The Defendant filed his notice of appeal on April 16, 2009.

In this appeal the State first contends that the Defendant's appeal should be dismissed because his notice of appeal was not timely filed and he has not sought a waiver of the timeliness requirement. Further, the State argues that the Defendant did not file a timely amended motion for new trial and that the trial court was without authority to extend the time during which the Defendant could file an amended motion for new trial. We first address the issue regarding the amendment to the Defendant's motion for a new trial.

A. Amended Motion for New Trial At the time the Defendant moved to amend his motion for new trial, neither the parties nor the trial judge had the benefit of the Tennessee Supreme Court's recent holding that amendments to timely filed motions for new trial may be had `until the day of the hearing on the motion for new trial,' Tenn. R. Crim. P. 33(b) (emphasis added), but not after the trial court has entered an order denying a new trial. State v. Hatcher, 310 S.W.3d 788, 803 (Tenn. 2010). The court advised: [T]rial courts should not hold any hearing on a motion for new trial until a reasonable time after the sentencing has been held, sentence has been imposed, and the judgment order entered. If the defense files a timely motion for new trial, the trial court should provide the defense with ample opportunity to amend the motion prior to holding the new trial hearing. If new counsel is sought and obtained, additional time for amendments to the motion for new trial may be granted as necessary. Once the hearing on the motion for new trial is heard and an order denying a new trial has been entered, however, motions to make additional amendments must be denied. Id. at 788 (emphasis added). In this case, the trial court, based upon its understanding that only the entry of a written order denying a motion for new trial divests a trial court of jurisdiction over the motion, allowed the Defendant to amend his motion for new trial despite its already having made a minute entry of the motion's denial. Again, at the time the trial court took this action, April 10, 2008, it did not have the benefit of a recent Tennessee Supreme Court's holding on this issue. On May 5, 2009, our highest court released an opinion in which it addressed the issue of whether a "minute entry is an `entry of the order denying a new trial' under Tennessee Rule of Appellate Procedure 4(c), which triggers the time for filing an appeal, and therefore, whether this minute entry is sufficient to confer jurisdiction on the intermediate court." State v. Byington, 284 S.W.3d 220, 225 (Tenn. 2009). The Court construed the language of Tennessee Rule of Criminal Procedure 33 to mean that: [U]nless a party moves the trial court to set forth findings of fact and conclusions of law, the court's order need state only whether the motion for new trial was granted or denied. The minute entry under scrutiny in [the Byington] case states that the defendant's motion for new trial was denied. Therefore, we believe that it suffices as a written order required under Tennessee Rule of Appellate Procedure 4(c) to confer appellate jurisdiction in a criminal case. Id. at 226. The Court then, as a final note on the issue, stated:

[A]lthough we hold that a minute entry is sufficient to confer appellate jurisdiction under Rule 4 in a criminal case, better practice dictates that the trial court enter a written order. Thus, we strongly encourage a trial court to enter a written order separate from the minute entry when denying a motion for new trial. Id. In accordance with the Tennessee Supreme Court's holding in Byington, we conclude in this case that the trial court's minute entry denying the Defendant's motion for new trial, entered on February 8, 2008, was sufficient to confer jurisdiction of the case with the appellate court. Therefore, the trial court was without jurisdiction after February 8, 2008, and had no authority to allow the Defendant to amend his motion for new trial. All proceedings in the trial court following the trial court's minute entry denying the Defendant's motion for new trial on February 8, 2008, would be of no legal effect. B. Notice of Appeal Given our conclusion that the trial court's February 8, 2008, minute entry conferred jurisdiction of the Defendant's case to the appellate court, the Defendant had thirty days after this date to file his notice of appeal. Tenn. R. App. P. 4(c). The Defendant, however, did not file his notice of appeal until April 16, 2009. "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." Tenn. R. App. P. 4(a). Given, however, the fact that the parties and trial court did not have the benefit of our Supreme Court's holding, we conclude the interest of justice is served by waiver of the untimely filing of the Defendant's notice of appeal. Accordingly, we turn to address the Defendant's remaining issues. C. Issue Preserved by Original Motion for New Trial. The only issue properly preserved is the issue raised in the Defendant's original motion for new trial. In that motion, the Defendant contended, as relevant to this appeal, that the evidence was insufficient to sustain his convictions. When an accused challenges the sufficiency of the evidence, this Court's standard of review is whether, after considering the evidence in the light most favorable to the State, "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 Tenn. R. App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.

Crim. App. 1999). A conviction may be based entirely on circumstantial evidence where the facts are "so clearly interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone." State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to be given to circumstantial evidence, and "[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury." State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted). In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). "Questions concerning the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact." State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); Liakas, 286 S.W.2d at 859. "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 favor of the theory of the State." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Grace, 493 S.W.2d 474, 479 (Tenn. 1973). The Tennessee 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, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 370 S.W.2d 523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record, as well as all reasonable inferences which may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000). 1. Count 1: Conspiracy to Sell 300 Grams or More of Cocaine within 1000 Feet of School Property The Defendant asserts that, in Count 1, the evidence does not sufficiently establish the elements of conspiracy or a violation of the drug-free school zone statute, Tennessee Code Annotated section 39-17-432(b). The Defendant contends that he was convicted of

conspiracy to "sell" cocaine in a school zone, but that there was not proof of any agreement between himself and Jeminez-Jaimes to sell the cocaine within 1000 feet of a school zone. Therefore, he asserts, the essential elements of "conspiracy" to "sell" cocaine "in a school zone" have not been met. Further, the Defendant contends that, whereas the purpose of the drug-free school zone statute is to protect children, his alleged driving through a school zone was not "conduct . . . sufficient to establish a violation of the intent and language" of the statute. The Defendant recognizes that the Tennessee Supreme Court has held otherwise, but he states that retroactive application of the Supreme Court's decision would violate his due process rights. State v. Vasques, 221 S.W.2d 514, 523 (Tenn. 2007); see also Bouie v. City of Columbia, 378 U.S. 347 (1964). In Count 1, the Defendant was charged and convicted of conspiracy to sell 300 grams or more of cocaine. T.C.A.

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