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State v. Perez5/11/2005
The defendant, Luis Perez, was indicted in a two-count indictment, charging the defendant, in the first count, with unlawful possession of over 4536 grams of marijuana with the intent to sell and, in the second count, with the intent to deliver the same marijuana, in violation of Tennessee Code Annotated section 39-17-417. The defendant's pretrial motion to suppress evidence was denied after a hearing. The defendant was convicted, after a jury trial, on both counts, each a Class D felony. The defendant received a sentence of four years on each count as a standard offender, with the sentences to run concurrently. In addition, a $2500 fine was imposed on each conviction count.
The defendant timely appeals and presents four issues:
(1) that the evidence was insufficient to support the convictions beyond a reasonable doubt;
(2) that the trial court erred in failing to suppress the evidence;
(3) that the trial court erred in its failure to merge the two guilty verdicts into a single conviction; and
(4) that the trial court erred in sentencing the defendant.
Factual Background
On November 18, 2002, the defendant was stopped on I-40 in Memphis for driving sixty-six miles per hour in a fifty-five mile-per-hour zone, as detected by radar. The arresting officer, Chris Jones, a Shelby County officer assigned to the West Tennessee Drug Task Force, stated that he smelled raw marijuana when the defendant rolled his window down. A second officer, in training and riding with Jones, Marco Yzaguierre, also claimed to smell the odor on approaching the vehicle.
The defendant produced a New York driver's license and stated that he lived in California. The defendant told the officers that he was test driving the older model Honda to New York and that the car belonged to a friend. Officer Jones phoned U.S. Customs to check the validity of the defendant's driver's license information. The defendant refused to consent to a vehicle search and was placed in the officer's squad car. Sergeant McCord, a K-9 handler for the West Tennessee Drug Task Force, was called and responded to the scene. The dog alerted to the defendant's vehicle and, when released inside the car, alerted on a green tub in the back seat area. A duffle bag inside the tub contained thirteen large bundles wrapped in cellophane and weighing, in gross, approximately seventeen pounds. Field testing from one bundle revealed the contents to be positive for THC, and this was subsequently confirmed by the TBI laboratory. The remaining bundles were undisturbed and not tested. Upon discovery of the marijuana, the defendant was arrested. After the defendant's arrest, Officer Jones learned that the defendant's driver's license was in revoked status.
Sufficiency of Evidence
In attacking the sufficiency of the evidence to convict, the defendant specifically focuses on the untested twelve bundles introduced as marijuana. The defendant contends that this circumstantial evidence is insufficient to convict, due to the failure to test all bundles and the failure to introduce the weight of the one bundle tested. In determining the sufficiency of the evidence, this Court does not reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury verdict approved by the trial judge accredits the State's witnesses and resolves all conflicts in favor of the State. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994). On appeal, the State is entitled to the strongest legitimate view of the evidence and all legitimate or reasonable inferences which may be drawn therefrom. Id. This Court will not disturb a verdict of guilt due to the
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