State of Tennessee v. Christopher M. Mimms

Citation: Not availableDocket: M2011-02712-CCA-R3-CD

Court: Court of Criminal Appeals of Tennessee; February 7, 2013; Tennessee; State Appellate Court

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Christopher M. Mimms was convicted of selling more than 0.5 grams of cocaine (Class B felony) and selling the same amount within a school zone (Class A felony). On appeal, he challenged the sufficiency of evidence for the latter conviction, claimed the trial court erred by not instructing the jury on lesser included offenses, and contended that the State improperly questioned him about previous drug transactions with a confidential informant. The Court of Criminal Appeals of Tennessee found the evidence sufficient to uphold the convictions and determined that Mimms had waived his other claims. Consequently, the trial court's judgments were affirmed. The case arose from an eight-count indictment stemming from drug-related activities, with key testimony from a confidential informant who arranged a drug purchase with Mimms, which was recorded and orchestrated by law enforcement.

Mr. Vincent testified about multiple transactions involving the defendant, who offered him crack cocaine for sale. Initially, on an unspecified occasion, the defendant attempted to sell Mr. Vincent additional cocaine for $20, but he declined due to lack of funds. Mr. Vincent stated that the defendant never provided cocaine without payment. After this exchange, he returned directly to the police station, where he turned over the cocaine to Agent Evans and was searched for additional contraband, which was not found.

On April 2, 2009, Mr. Vincent, at law enforcement's request, contacted the defendant to arrange a cocaine purchase. He detailed the monitoring process by police, including being wired for audio and searched. The meeting location changed from a store to a gas station, where the defendant sold him $100 worth of crack cocaine. On April 9, Mr. Vincent again arranged a purchase for $150 worth of crack cocaine, following similar procedures as before, including being searched and recorded. They met at the store for this transaction.

On April 10, Mr. Vincent contacted the defendant for another drug purchase without specifying amounts. They agreed to meet at the store, but the location changed to a Kroger grocery store. He was not wired or instructed to meet the defendant this time. During his testimony, Mr. Vincent referenced listening to audio recordings of his interactions with the defendant, which were submitted as evidence, along with surveillance photographs from the transactions. He noted that in return for his cooperation, his drug charge was dropped, and he received a bus ticket home.

During cross-examination, Mr. Vincent denied having a personal friendship with the defendant or engaging in social activities together. While acknowledging past interactions, including smoking cigarettes, he refuted any claims of using crack cocaine with the defendant. He admitted to having previously worked as a police informant and denied that his obligation to law enforcement concluded after the last transaction on April 9.

During re-direct examination, Mr. Vincent explained that he referred to the meeting location as 'the store' because it was a familiar place where he and the defendant had previously met to purchase crack cocaine. He emphasized that prior transactions did not involve police, stating it was difficult to buy drugs from someone without prior dealings. Agent Will Evans from the Clarksville Police Department testified about his interactions with Mr. Vincent, who indicated he could purchase drugs from 'C-Whiz.' On April 1, 2009, Evans instructed Vincent to arrange a drug deal, providing him with $150 in marked bills while conducting audio and visual surveillance. The suspected drugs obtained from Vincent tested positive for cocaine. Similar procedures were followed on April 2, 2009, and April 9, 2009, with Vincent purchasing crack cocaine on both occasions, with substances testing positive for cocaine each time. Evans noted that the April 9 transaction occurred at a Minit Mart, which was later determined to be within a school zone, being less than 1,000 feet from the school property. He utilized 'Google Earth' to confirm the distances from the Minit Mart to the school, measuring various points and confirming the proximity of the drug transaction to the school.

Agent Evans testified that on April 10, 2009, he instructed Mr. Vincent to contact the defendant about purchasing additional drugs. Upon confirming the defendant's location at a Kroger store, Evans and other officers arrested him while he was alone in his car. A search of the vehicle revealed a baggie with a white crystalline substance that tested positive for cocaine. Additionally, a ten dollar bill was found in the defendant's wallet, matching the serial number of a bill photocopied prior to a drug transaction on April 9, 2009. 

Agent Evans noted that the defendant's cell phone displayed the name 'C Whiz.' Expert testimony from Agent Cassandra Beavers of the Tennessee Bureau of Investigation confirmed that two samples received from Evans on April 3, 2009, each contained 0.6 grams of cocaine base. Special Agent Denotria Patterson also confirmed that a substance from a drug transaction on April 9 contained 0.5 grams of cocaine base, while a substance from the defendant's vehicle on April 10 contained 4.8 grams of cocaine base.

James Robert Sumrell, COO of the Montgomery County School system, testified about Norman Smith Elementary School, which served pre-K through fifth grade and was operational on April 9, 2009. The defendant then testified in his defense, acknowledging his close friendship with Mr. Vincent, their mutual drug use, and denying that he ever sold drugs. He claimed Vincent was lying about their relationship but admitted his employer tested for drugs without ever failing a test.

The jury found the defendant guilty of selling 0.5 grams or more of cocaine and selling cocaine in a school zone, resulting in a ten-year sentence for the former and fifteen years for the latter, to be served concurrently. The jury deadlocked on other counts. The defendant's motion for a new trial was denied, and he filed a notice of appeal. The court is now considering his claims.

The defendant contends that the trial evidence was insufficient to support his conviction for selling 0.5 grams or more of cocaine in a school zone and argues that the trial court erred by not instructing the jury on lesser included offenses and allowing questions about prior drug transactions with a confidential informant. The court affirms the trial court's judgments. 

When assessing the sufficiency of evidence on appeal, courts must view the evidence favorably to the prosecution, determining if any rational jury could find the essential elements of the crime beyond a reasonable doubt. The burden lies with the defendant to demonstrate insufficiency. The credibility of witnesses and the weight of their testimony are determined by the jury, and appellate courts do not re-weigh evidence or substitute their inferences for those made by the jury. Both circumstantial and direct evidence are evaluated under the same standard, with circumstantial evidence alone being sufficient for conviction without needing to exclude every reasonable hypothesis except guilt.

The defendant was convicted under Tennessee Code Annotated § 39-17-417 for selling a controlled substance, defined as a Class B felony if the amount is 0.5 grams or more. Violations occurring within 1,000 feet of a school are subject to enhanced penalties per § 39-17-432. While the defendant does not dispute the evidence for selling over 0.5 grams of cocaine on April 9, 2009, he challenges the assertion that the sale occurred within the requisite distance from a school, arguing that the Google map used as evidence lacked proper foundation.

The defendant concedes the lack of a contemporaneous objection to the introduction of a 'download' at trial and requests the court to apply the 'plain error' standard to reverse the conviction despite this waiver. The court may consider waived issues at its discretion if it finds that five specific factors are met, including the necessity of addressing the error for substantial justice. However, the court does not find it necessary to disregard the waiver in this case. The State established the distance between Minit Mart and the school using both a computer calculation and a physical measurement, with Agent Evans testifying that the distance was less than 1000 feet. Although Agent Evans did not clarify the specific tool used for the physical measurement, the court finds this omission not detrimental to the State’s case, as various tools could have been employed. The defendant had the opportunity to challenge this measurement during cross-examination but chose not to. Additionally, the defendant claims Agent Evans' testimony is insufficient for proving the drug transaction occurred in a school zone, arguing that Agent Evans focused only on the distance between property lines rather than from the transaction to the school. The court interprets Agent Evans' testimony as calculating the distance from the far end of the Minit Mart property line to the school property line, suggesting that the defendant benefitted from an unknown distance in his favor. Agent Evans confirmed the measured distance was 426 feet.

The enhancement under section 39-17-432 applies to drug transactions occurring within 1000 feet of school property, making the distance in this case a clear issue. Agent Evans testified that both the school's front drive and door were within this range of the Minit Mart, supporting the conviction for selling over 0.5 grams of cocaine in a school zone. The defendant's argument regarding insufficient evidence for this conviction is denied.

The defendant also contends that the trial court erred by not instructing the jury on lesser included offenses, specifically regarding Counts 1 (sale) and 2 (delivery) of the indictment. He claims that the jury was only instructed on simple possession for Count 2 and that the trial court's verbal instruction about alternative charges was not included in the written jury charge provided for deliberation. Additionally, the defendant raises similar concerns about Counts 5 and 6. However, the State argues that the defendant waived this issue by not providing a complete transcript of jury instructions and failing to make a contemporaneous objection. The appellate court agrees and states that the incomplete record prevents consideration of this issue, denying the claim of error.

Finally, the defendant challenges the trial court's decision to allow testimony from the State's confidential informant regarding prior drug transactions with the defendant, arguing it violated Rule 404(b) of the Tennessee Rules of Evidence, which limits the admissibility of evidence related to other crimes to prevent prejudice. The defendant asserts that this testimony was improperly solicited to depict him as a drug dealer, thereby influencing the jury's perception of his actions on the date in question. The defendant specifically notes issues during the informant's cross-examination, where defense counsel suggested the informant had encouraged drug sales at the location in question.

During Mr. Vincent’s re-direct examination, he confirmed meeting at the Mini Mart, stating it was a common location for past encounters. When asked about the purpose, he disclosed that they met for the purchase of crack cocaine. The defendant objected on grounds of relevance, which was overruled by the court, affirming the testimony's relevance to the case. Notably, the defendant did not raise objections regarding undue prejudice or character evidence during the trial, and the issue was only introduced in a motion for a new trial. The court noted that the absence of a timely objection hindered record development for a proper analysis of the Rule 404(b) issue and indicated that plain error review is seldom applied in such cases. Consequently, the claim that the trial court erred in allowing questioning about prior drug transactions was denied, and the trial court's judgments were affirmed.