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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs April 10, 2002 STATE OF TENNESSEE v. TIMOTHY TYRONE SANDERS
Direct Appeal from the Circuit Court for Bedford County No. 14492 Charles Lee, Judge

No. M2001-02128-CCA-R3-CD - Filed July 5, 2002

The appellant, Timothy Tyrone Sanders, was convicted in the Bedford County Circuit Court of one count of possession of .5 grams or more of cocaine with intent to sell. On direct appeal, this court reversed the appellant's conviction because the trial court failed to properly charge the jury on the lesser-included offense of simple possession, and we remanded the case for retrial. State v. Timothy Tyrone Sanders, No. M2000-00603-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 38, at **13-14 (Nashville, January 18, 2001). Subsequently, the appellant was once again convicted of possession of cocaine with intent to sell. The trial court sentenced the appellant as a Range II offender to seventeen years and six months incarceration in the Tennessee Department of Correction. In the instant appeal, the appellant raises the following issues: (1) whether the evidence is sufficient to sustain his conviction, and (2) whether the trial court erred in determining the length of his sentence. Upon review of the record and the parties' briefs, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed. NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN, JJ., joined. Merrilyn Feirman, Nashville, Tennessee (on appeal); and Andrew Jackson Dearing, III, and Mike Collins, Shelbyville, Tennessee (at trial), for the appellant, Timothy Tyrone Sanders. Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney General; William Michael McCown, District Attorney General; and Michael D. Randles, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Factual Background On October 25, 1999, the appellant was convicted by a jury in the Bedford County Circuit Court of one count of possession of .5 grams or more of cocaine with intent to sell and was sentenced as a Range II offender to seventeen years and six months incarceration. The appellant

successfully appealed his conviction and the case was remanded for new trial. Sanders, No. M200000603-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 38, at**13-14. Upon retrial, the State first presented the testimony of Officer James Wilkerson with the Shelbyville Police Department. Officer Wilkerson testified that, due to numerous complaints of narcotics activity on Byrd Street, he and Detective Tony Andrew Collins were patrolling the Byrd Street area of Shelbyville on the night of October 30, 1998. Officer Wilkerson observed the appellant erratically driving a Pontiac Bonneville and began following him. Eventually, the appellant drove the vehicle into a driveway at 433 Byrd Street and stopped. Officer Wilkerson parked his unmarked vehicle on the road near the appellant's vehicle. The appellant immediately exited the vehicle and began walking toward the officers' vehicle. Officer Wilkerson and Detective Collins exited their vehicle, identified themselves as police, and approached the appellant's vehicle. Officer Wilkerson walked toward the appellant who was on the driver's side of the vehicle, and Detective Collins approached the passenger side of the vehicle. Officer Wilkerson testified that two other individuals remained inside the vehicle. Willie Dwayne Webster was in the front passenger seat, and Santita Makeva Sutton was in the back seat. Officer Wilkerson recounted that the appellant, who had been driving the vehicle, met him at the rear of the vehicle on the driver's side. He described the appellant as having a strong odor of alcohol, and additionally recalled that the appellant had a "real bad tremor," was shaking, sweating, and appeared extremely nervous. Officer Wilkerson did a "pat-down" for weapons and instructed the appellant to sit on the ground. Detective Collins testified that, while Officer Wilkerson was talking with the appellant, he was observing the passengers inside the vehicle. He became concerned when he noticed Webster doing a "pushing motion" or an "up and down motion" with his hands. Detective Collins pulled his weapon and instructed the passengers to keep their hands in plain sight. Once other officers arrived to assist, Detective Collins instructed Webster and Sutton to exit the vehicle. He performed a pat-down search of both passengers and the officers proceeded to conduct a search of the vehicle. Officer Wilkerson stated that the vehicle had bucket seats in front, and, located between the driver's seat and the center console, he discovered a 12 gauge Winchester tactical pump shotgun with a pistol grip. The gun was fully loaded with "one in the chamber." Extra shotgun shells were discovered in the back seat of the vehicle. During the search, Detective Collins found, in the driver's seat, a purple Crown Royal bag containing two small, clear plastic bags. Inside each plastic bag was a substance that appeared to be crack cocaine. The three occupants of the vehicle were arrested and taken to the Shelbyville police station where they were searched. The police found $2,120.25 in small denominations in Webster's pocket and $95 in cash in the appellant's possession. Donna Flowers, a forensic chemist with the Tennessee Bureau of Investigation (TBI) crime laboratory, testified that the substance found in the Crown Royal bag was 3.5 grams of cocaine

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base, which is more commonly known as crack cocaine.1 Officer Wilkerson testified that the approximate street value of 3.5 grams of crack cocaine is $350 if the drug is purchased in one large amount. However, he advised that most users purchase crack cocaine in $20 rocks and "[t]he smaller the amount, the more you pay." Officer Wilkerson asserted that, typically, users of crack cocaine possess only a small amount of the drug at a time, usually worth around $20-$50. He also explained that crack cocaine is customarily smoked in a "crack pipe"; however, no crack pipe was discovered in the vehicle or in the possession of any of the occupants. Moreover, Officer Wilkerson related that, in his experience, drug dealers commonly use Crown Royal bags to conceal their drugs. Additionally, he maintained that packaging drugs in separate bags indicates that the substance is for distribution. He recounted that 3.5 grams is a large amount for personal use, suggesting that the crack cocaine was for distribution. Officer Wilkerson testified that he interviewed the appellant at the police station. During the interview, the appellant denied ownership of the drugs. Officer Wilkerson acknowledged that he did not remember if the appellant denied ownership of the vehicle or the gun. However, he noted that the appellant was driving the vehicle, and the gun was located within easy reach of the appellant; in fact, Officer Wilkerson noted that the appellant's right hand and leg could have rested on the gun while the appellant was driving. Based upon the foregoing evidence, a jury convicted the appellant of possession of .5 grams or more of cocaine with intent to sell. At the sentencing hearing, the trial court incorporated the evidence from the trial and from the first sentencing hearing,2 and, concluding that there was no reason to alter the sentence imposed upon the appellant after the first trial, the trial court again sentenced the appellant as a Range II offender to seventeen years and six months incarceration. The appellant now appeals his conviction and his sentence. II. Analysis A. Sufficiency of the Evidence In reviewing the sufficiency of the evidence underlying a conviction, this court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because the jury resolves all questions regarding the credibility, weight, and application of the evidence, "[a] guilty verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the prosecution's theory." State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). In other words, the State is entitled to the strongest legitimate view of the evidence contained in the record as well as all reasonable and legitimate inferences which may be drawn from the evidence. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Accordingly, to be successful in his challenge to his conviction, the appellant must establish
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The parties stipulated that Flowers is an expert in the field of forensic chemistry.

We note that the State and the ap pellan t agreed to incorporate the evidence adduced at the first sentencing hearing into the sentencing hearing for the instant conviction. Furthermore, the State and the appellant agreed to sim ply update the presentence report rather than holding a completely new hearing.

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that no reasonable trier of fact could have found the essential elements of the offense in question beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). In order to obtain the appellant's conviction, the State needed to prove that the appellant knowingly possessed .5 grams or more of cocaine with intent to sell. Tenn. Code Ann.

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