IN THE TENNESSEE COURT OF CRIMINAL APPEALSAT NASHVILLE

STATE OF TENNESSEE ) CCA No.: M2015-01851-CCA-R3-CD Appellee ) MONTGOMERY CIRCUIT COURT

) Judge Honorable William R. Goodman, III.vs. )

)CHRISTOPHER D. LINDSEY )

Defendant/Appellant )

ON APPEAL AS OF RIGHT FROM THE CIRCUIT COURT FOR MONTGOMERY COUNTY, TENNESSEE AT CLARKSVILLE

[CASE NO.: 41400689, 63CC1-2014-CR-665].

BRIEF OF DEFENDANT/APPELLANT

ERIC TODD SUTTONAppointed Attorney for AppellantBPR #01233136130 Franklin StreetClarksville, TN 37040(419) 509-3818 Office(931) 572-1138 Fax

ORAL ARGUMENTS WAIVEDPURSUANT TO T.R.A.P. 35(h)

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TABLE OF CONTENTS

PAGE

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Legend of Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Statement of the Issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-

10 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . 11-17

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-

18

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Table of Authorities

CASES

State v. Adkisson, 899 S.W.2d 626 (Tenn. Crim. App. 1994) ………………. 12

State v. Blouvelt, 904 S.W.2d 111, 113 (Tenn. 1995) ……………………… 16

State v. Hawkins, 406 S.W. 3d 121, 132 (Tenn. 2013) ……………………… 15

State v. Little , 402 S.W.3d 202, 211 (Tenn. 2013) …………………………. . 11

State v. Majors, 318 S.W. 3d 850, 858-859 (Tenn. 2010) …………………... 15

State v. Marshall, 319 S.W. 3d 558, 563 (Tenn. 2010) ……………………... 16

State v. Patton, 898 S.W. 2d 732 (Tenn. Crim. App. 1994) ………………… 15

State v. Smith, 24 S.W. 3d 274, 282 (Tenn. 2000) ………………………….. 13

STATUTES/CONSTITUTIONS/RULES

T.P.I. CRIM. 40.10 ………………………………………………………….. 12

Tenn. R. App. P. 3(e), 36(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tenn. R. Crim. P. 52(b) ………………………………………………………. 13

Tenn. Code Ann. § 39-12-101 ………………………………………………… 12

Tenn. Code Ann. § 39-16-503(a) ……………………………………………… 14

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Legend of Abbreviations

Mr. Linsey = Defendant/Appellant, Christopher Demotto Linsey

State = Appellee

Trial Court = Honorable William R. Goodman, III., Judge of the Montgomery County Circuit at Clarksville

Tr. 1 = Transcript of Jury Trial dated April 22, 2015 and April 23, 2015.

Tr. 2 = Transcript of Sentencing Hearing dated August 27, 2015.

R = All citations to the technical record other than Tr.

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STATEMENT OF THE ISSUE

The Trial Court erred by failing to instruct the jury on the affirmative

defense of renunciation and or abandonment.

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STATEMENT OF THE CASE

Defendant/Appellant, Christopher Demotto Linsey (“Mr. Linsey”), is serving a twelve

(12) year sentence on Tampering with Evidence and eleven (11) months and twenty-nine (29)

days on Simple Possession which will run concurrently. [Tr 2 41, lines 22-24 and Tr 2 42. lines

2-3]. Mr. Linsey was ordered to serve his sentence in the Tennessee Department of Corrections.

[Tr.2 41, lines 19-20].

Mr. Linsey appealed on September 18, 2015. This is the first stage of direct appeal on

the revocation of a suspended sentence.

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STATEMENT OF THE FACTS

Mr. Linsey was indicted on five separate charges of which he was found not guilty of

counts 2, 4, and 5 which are not at issue in this appeal. The facts pertaining to the issue disputed

are that on the 8th day of November, 2013, Mr. Linsey was travelling south on Providence

Boulevard in Clarksville, Tennessee. At the same time, Deputy Daniel Gagnon claims to not

have seen Mr. Linsey wearing his seatbelt as the deputy was travelling north on Providence

Boulevard [Tr. 1, 48, lines 19-24]. Deputy Gagnon then turned around and caught up with him

and claims to not have seen a seatbelt [Tr. 1, 48, line 25 and 49, line 1]. Deputy Gagnon initiated

a traffic stop at the intersection of Riverside and McClure [Tr 1, 49, lines 16-18]. When he

approached Mr. Linsey, he identified himself and asked for his driver’s license, registration and

insurance and while speaking to him, claims to have smelled an odor of burnt marijuana emitting

from the vehicle [Tr 1, 50, lines 1-7]. Mr. Linsey did not have his driver’s license and could only

produce a Tennessee Identification card [Tr1, 50, lines 3-5]. Deputy Gagnon called for another

unit due to the smell of burnt marijuana and there were two individuals in the vehicle [Tr 1, 50,

lines 14-16].

Once his backup arrived, Deputy Gagnon approached the vehicle and asked Mr. Linsey

to exit and step to the rear of his vehicle where he was detained for the odor of marijuana and

driving without a valid license [Tr. 1, 51, lines 15-20]. Deputy Gagnon then asked Mr. Linsey if

he had any marijuana on him wherein he spit out a bag of green plant like substance onto the

ground [Tr 1, 51, lines 22-25].

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STATE WITNESSES:

Officer Gabriel Johnson: Officer Johnson is an officer with the Clarksville Police

Department [Tr.1., 102, lines 20-23]. Officer Johnson testified that he responded to assist

Deputy Gagnon in an investigation [Tr 1, 103, lines 24-25]. Officer Johnson testified that when

he first arrived, that Mr. Linsey was in custody because he didn’t have a license and tried to eat

some marijuana [Tr 1, 104, lines 10-13]. Officer Johnson was asked by Deputy Gagnon to search

the vehicle with his K-9 dog. Officer Johnson put the dog in the vehicle [Tr. 1, 104, lines 18-21].

The K-9 dog started scratching at the carpet on the driver’s side when Officer Johnson found a

baggie [Tr 1, 105, lines 15-19]. The narcotics found under the carpet in the vehicle being driven

by Mr. Linsey are not in dispute as it relates to his appeal as he was found not guilty of those

three counts.

John Scott: Mr. Scott is a forensic scientist at the Tennessee Bureau of Investigation at

the Nashville Crime Laboratory [Tr 1, 113, lines 4-7]. Mr. Scott testified about the narcotics that

Officer Johnson’s K-9 recovered as ten Alprazolam tablets, two bags of cocaine hydrochloride,

two plastic bags that he identified as cocaine, 1.03 grams of marijuana, and .11 grams of heroin

[Tr 1, 116, lines 1-16].

Deputy Daniel Gagnon: Deputy Gagnon was a Montgomery County Sheriff’s Deputy

on November 8, 2013. Deputy Gagnon first observed Mr. Linsey on the 8 th day of November,

2013 as they were travelling in opposite directions on Providence Boulevard in Clarksville,

Tennessee when Deputy Gagnon claims to not have seen Mr. Linsey wearing his seatbelt [Tr 1,

48, lines 19-24]. Deputy Gagnon testified that after he observed him not wearing his seatbelt,

that he turned around and caught up with him and passed him on the left and again observed him

not wearing his seatbelt [Tr 1, 48, line 25 and 49, line 1]. Deputy Gagnon testified that he

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initiated a traffic stop at the intersection of Riverside and McClure [Tr 1, 49, lines 16-18].

Deputy Gagnon testified that he smelled an odor of burnt marijuana after approaching Mr.

Linsey and asked for his driver’s license, registration and proof of insurance [Tr 1, 50, lines 1-7].

Deputy Gagnon testified that he called for another unit due to the smell of burnt marijuana and

there were two individuals in the vehicle [Tr 1, 50, lines 14-16]. Deputy Gagnon testified that

once his backup arrived, he asked Mr. Linsey to exit the vehicle and step to the rear of his

vehicle where he was detained for the marijuana and driving without a valid license [Tr 1, 51,

lines 15-20]. Deputy Gagnon testified that when he detained Mr. Linsey, he asked him if he had

any marijuana on him so he spit out a green plant like substance in a plastic bag right down at his

feet [Tr 1, 56, lines 21-25]. Deputy Gagnon testified that Mr. Linsey was cooperating with him

and did everything asked of him [Tr 1, 92, lines 8-10]. Deputy Gagnon further testified that Mr.

Linsey could have swallowed the marijuana that he spit out [Tr1, 94, lines 25].

DEFENSE MOTION

Defense Counsel argued her Motion for Judgment of Acquittal as the state had failed to

prove that Mr. Linsey destroyed evidence at a time when he knew that an investigation was

pending or in progress, that he did eat suspected marijuana [Tr1, 119, lines 22-25, and 120, lines

1-3]. Defense counsel argued that there had been no evidence that Mr. Linsey altered, destroyed

or concealed evidence with the intent to impair its availability as evidence in the investigation

[Tr 1, 120, lines 16-19]. The Trial Court stated that the Defendant was standing at the back of his

Escalade under the control of the officer and had marijuana in his mouth and that the State has

met its burden as relates to count 1, Tampering with Evidence [Tr 123, lines 5-10].

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DEFENSE WITNESSES

Dion Sanders: Mr. Sanders is a juvenile and is Mr. Linsey’s nephew who was riding in

the vehicle with him on the day that he was pulled over [Tr 1, 128, lines 3-8]. Mr. Sanders had

been in the vehicle for approximately 30 minutes prior to them getting pulled over and testified

that the first thing that he did when he got into the vehicle was to put his seatbelt on [Tr 1, 128,

lines 16-18]. Mr. Sanders testified that Mr. Linsey did the same [Tr 1, 128, lines 19-24]. Mr.

Sanders testified to the fact that Mr. Linsey was wearing his seatbelt at the time that he was

pulled over [Tr 1, 130, lines 9-11]. Mr. Sanders testified to the fact that the windows were tinted

on the vehicle that day [Tr 1, 130, lines 15-22]. Mr. Sanders testified to the fact that Mr. Linsey

cooperated fully with the police and did everything they told him to do [Tr 1, 131, lines 2-4]. Mr.

Sanders further testified that he observed Mr. Linsey put the drugs in his mouth [Tr 1, 132, lines

9-12].

Christy Harper: Ms. Harper was Mr. Linsey’s girlfriend at the time of the arrest in

November of 2013 and is now his wife who owned the 2000 Cadillac Escalade [Tr 1, 133, lines

17-19, 148, lines 15-19].

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ARGUMENT

STATEMENT OF THE ISSUE

The Trial Court erred by failing to instruct the jury on the affirmative

defense of renunciation and or abandonment.

STANDARD OF REVIEW

The standard of review upon appeal is de novo and appeal as of right, and State v. Little , 402

S.W.3d 202, 211 (Tenn. 2013).

DISCUSSION

The Trial Court erred by failing to instruct the jury that renunciation is an affirmative

defense to tampering with evidence. State v. Little establishes the standard of review that the

case can be reviewed by the Tennessee Court of Appeals. Not only is State v. Little sufficient

precedent for Mr. Linsey’s case to be reviewed upon appeal, but according to Tenn. R. App. P.

3(e), 36(b) which is the initiation of an appeal as of right, “An appeal as of right may be taken

without moving in arrest of judgement, praying for an appeal, entry of an order permitting an

appeal or compliance with any other similar procedure,” which allows Mr. Linsey to appeal his

conviction as of right (Tenn. R. App. P. 3(e), 36(b)). Subsection (b) allows the defendant of a

criminal action to appeal as of right and Rule 36 provides that relief may not be granted to a

party which fails to take the appropriate action to prevent or nullify the harmful effect of error

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(Tenn. R. App. P. 3(e), 36(b)). Plain error issues and sufficiency of evidence issues are able to

be presented as reviewable on appeals according to Tenn. R. App. P. 3(e), 36(b).

There are five factors that must be established to determine whether a plain error review

can be undertaken, the five factors are: “a) “the record must clearly state what occurred in the

trial court; b) whether a clear and unequivocal rule of law must have been breached; c) a

substantial right of the accused must have been adversely affected; d) the accused must not have

waived the issue for tactical reasons; and e) consideration of the error must be necessary to do

substantial justice”, State v. Adkisson, 899 S.W.2d 626, 641-642 (Tenn. Crim. App. 1994).

Officer Johnson testified that when he first arrived, that Mr. Linsey was in custody

because he didn’t have a license and tried to eat some marijuana [Tr 1, 104, lines 10-13]. Deputy

Gagnon testified that when he detained Mr. Linsey, he asked him if he had any marijuana on him

so he spit out a green plant like substance in a plastic bag right down at his feet [Tr 1, 56, lines

21-25]. Deputy Gagnon then asked Mr. Linsey if he had any marijuana on him wherein he spit

out a bag of green plant like substance onto the ground [Tr 1, 51, lines 22-25]. Deputy Gagnon

further testified that Mr. Linsey could have swallowed the marijuana that he spit out [Tr1, 94,

lines 25]. The previous sentences from Tr. 1 shows that even the State’s witnesses during trial

did not dispute that Mr. Linsey spat out the alleged substance of green plants, in fact he went out

of his way not to destroy the green substance.

According to T.P.I. CRIM. 40.10, the affirmative defense of renunciation can be used if

1) after committing the criminal attempt the defendant prevented the successful commission of

the offense of criminal attempt; and 2) the offense was prevented under circumstance

manifesting a complete and voluntary renunciation of the defendant’s criminal purpose. The

burden of proof is on the defendant to prove by a preponderance of the evidence that after

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committing the criminal attempt, the defendant prevented the successful commission of the

criminal attempt under circumstances manifesting a complete and voluntary renunciation of the

defendant’s criminal purpose (T.P.I. CRIM. 40.10).

Criminal attempt is defined by Tenn. Code Ann. § 39-12-101, as a) a person who

commits criminal attempt who, acting with the kind of culpability otherwise required for the

offense: (1) Intentionally engages in action or causes a result that would constitute an offense, if

the circumstances surrounding the conduct were as the person believes them to be; (2) Acts with

intent to cause a result that is an element of the offense, and believes the conduct will cause the

result without further conduct on the person's part; or (3) Acts with intent to complete a course of

action or cause a result that would constitute the offense, under the circumstances surrounding

the conduct as the person believes them to be, and the conduct constitutes a substantial step

toward the commission of the offense (Tenn. Code Ann. § 39-12-101).

In State v. Smith, 24 S.W. 3d 274, 282 (Tenn. 2000) the court displays and defines how it

views plain error and how it applies to the five factors. Further a plain error is constituted if the

error is such a miscarriage that it probably changes the outcome of the trial and when the state

places objectable evidence before the jury and defense counsel inquires at length about the

evidence during cross-examination then any error admitting the evidence is generally cured,

which means that due to the defense failing to object to the evidence, the trial court made a

tactical decision and thus it precludes the admission of evidence under a plain error analysis.

Both the Rule of Appellate Procedure 36 (b) and Rule of Criminal Procedure 52 (b) allow this

court to take notice of plain errors that were not raised in the proceedings State v. Smith, 24 S.W.

3d 274, 282, 283 (Tenn. 2000). These establish rules in addition to the five factors that the plain

error may be found and used by appellants’ to reinvestigate cases.

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With regards towards Mr. Linsey’s case, the Defense Counsel argued her Motion for

Judgment of Acquittal as the state had failed to prove that Mr. Linsey destroyed evidence at a

time when he knew that an investigation was pending or in progress, that he did eat suspected

marijuana [Tr1, 119, lines 22-25, and 120, lines 1-3]. Defense counsel argued that there had been

no evidence that Mr. Linsey altered, destroyed or concealed evidence with the intent to impair its

availability as evidence in the investigation [Tr 1, 120, lines 16-19]. Since the jury instruction

about renunciation was improperly not entered into the jury instructions given for this case, this

constitutes plain error in Mr. Linsey’s conviction.

As previously mentioned, the State’s witnesses’ testified that Mr. Linsey spat out a baggy

with green substance when questioned by Deputy Gagnon. Officer Johnson testified that when he

first arrived, that Mr. Linsey was in custody because he didn’t have a license and tried to eat

some marijuana [Tr 1, 104, lines 10-13]. Deputy Gagnon testified that when he detained Mr.

Linsey, he asked him if he had any marijuana on him so he spit out a green plant like substance

in a plastic bag right down at his feet [Tr 1, 56, lines 21-25]. Deputy Gagnon then asked Mr.

Linsey if he had any marijuana on him wherein he spit out a bag of green plant like substance

onto the ground [Tr 1, 51, lines 22-25]. Deputy Gagnon further testified that Mr. Linsey could

have swallowed the marijuana that he spit out [Tr1, 94, lines 25]. Mr. Scott, is a forensic

scientist at the Tennessee Bureau of Investigation at the Nashville Crime Laboratory [Tr 1, 113,

lines 4-7]. Mr. Scott testified about the narcotics that Officer Johnson’s K-9 recovered as ten

Alprazolam tablets, two bags of cocaine hydrochloride, two plastic bags that he identified as

cocaine, 1.03 grams of marijuana, and .11 grams of heroin [Tr 1, 116, lines 1-16]. This

testimony shows that there was 1.03 grams of marijuana because it could be tested. The previous

sentences from Tr. 1 shows that even the State’s own witnesses during trial did not dispute that

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Mr. Linsey spat out the alleged substance of green plants, in fact he went out of his way not to

destroy the green substance and were able to be tested.

Tenn. Code Ann. § 39-16-503 defines evidence, destruction, tampering or fabrication (a)

it is unlawful for any person, knowing that an investigation of official proceeding is pending or

in progress, to: (1) alter, destroy, or conceal any record, document, or thing with intent to impair

its verity, legibility, or availability as evidence in the investigation or official proceeding; or …

(Tenn. Code Ann. § 39-16-503).

State v. Majors, 318 S.W. 3d 850, 858-859 (Tenn. 2010) set that to convict a person of

tampering with evidence the state is not required to prove beyond a reasonable doubt that the

defendant (in general) with regards towards a specific thing had in some way disposed, hidden,

or altered (State v. Majors, 318 S.W. 3d 850, 858-859 (Tenn. 2010)).

Within State v. Hawkins, 406 S.W. 3d 121, 132 (Tenn. 2013) the Tennessee Supreme

Court stated that the abonnement of the shotgun, the murder weapon and not tampering was

displayed in this case because the defendant in State v. Hawkins tossed the murder weapon over

a short fence, where it could easily be observed and recorded (State v. Hawkins, 406 S.W. 3d

121, 132 (Tenn. 2013)). This action is akin to Mr. Linsey spatting out the baggie with green

substance in front of the officer.

State v. Patton, 898 S.W. 2d 732 (Tenn. Crim. App. 1994) shows that the simple act of

tossing aside a bag full of marijuana during course of flight from the police did not constitute

tampering because mere abandonment of evidence was not the type of conduct in which the

statute was enacted to address. Further the court believes that the legislature did not intend to

inflict a greater punishment upon an individual for attempting to discard evidence than the

commission of the crime (State v. Patton, 898 S.W. 2d 732, 737 (Tenn. Crim. App. 1994)). State

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v. Patton shows that the act of tossing a bag of marijuana did not constitute tampering, if the

action of getting rid of some type of legally harmful evidence is not seen as tampering, how

could spitting up a baggy that has not been destroyed been seen as tampering?

Defendant/Appellant, Christopher Demotto Linsey (“Mr. Linsey”), is serving a twelve

(12) year sentence on Tampering with Evidence and eleven (11) months and twenty-nine (29)

days on Simple Possession which will run concurrently. [Tr 2 41, lines 22-24 and Tr 2 42. lines

2-3]. As mentioned above it would be against the intent of the statute to punish Mr. Linsey

greater for the tampering charge, than for the actual crime of simple possession.

State v. Marshall, 319 S.W. 3d 558, 563 (Tenn. 2010) establishes that Our role in

statutory interpretation is to give a statute the full effect of the General Assembly's intent without

unduly restricting or expanding the statute's intended scope. “[W]e presume that every word in

the statute has meaning and purpose and should be given full effect if the obvious intent of the

General Assembly is not violated by so doing. We find the General Assembly's intent in the plain

and ordinary meaning of the statute's language if the language is unambiguous. When the

meaning of a statute is in question, we rely upon well-established canons of statutory

construction. [W]hen the fair import of the language of a penal statute, in the context of the

legislative history and case law on the subject, still results in ambiguity, and the rule of strict

construction would apply to limit the statute's application to those persons or circumstances

clearly described by the statute. In other words, “the rule of lenity is a tie-breaker when there is

an otherwise-unresolved ambiguity.” “[T]o ensure that a legislature speaks with special clarity

when marking the boundaries of criminal conduct, courts must decline to impose punishments

for actions that are not ‘plainly and unmistakably’ proscribed.” (State v. Marshall, 319 S.W. 3d

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558, 562, 563 (Tenn. 2010)). Not only does the verbiage used in the statute matter, but so does

the intention of the General Assembly.

If there was in error in the statute that abandonment of evidence constitutes tampering

and because it is not expressly codified within the statute deference must be given towards the

defendant according to State v. Blouvelt, 904 S.W.2d 111, 113 (Tenn. 1995), which states

further, we observe that it has long been a general rule of statutory construction that ambiguity in

criminal statutes must be construed in favor of the defendant (State v. Blouvelt, 904 S.W.2d 111,

113, 114 (Tenn. 1995)).

This is why we state that due to the plain errors, abandonment and renunciation and not

tampering, and Mr. Linsey’s adherence and cooperation with Deputy Gagnon that the Court

remands this case for further review to the Trial Court. Trial Court erred by failing to instruct

the jury that the defense of renunciation

CONCLUSIONThis Honorable Court should reverse the ruling of the Trial Court and remand this matter back to

the Trial Court for further proceedings.

Respectfully submitted this Second day of May 2016.

____________________________ ERIC T SUTTON, BPR # 0133136

Appointed Appellate Counsel Clarksville, TN 37040(419) 509-3818 Office(931) 572-1138 Fax

CERTIFICATE OF SERVICE

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I, Eric T Sutton, hereby certify that a true and accurate copy of the foregoing has been hand delivered or mailed, adequate postage prepaid, to the following on this the 2d day of MAY 2016.

__________________________________Eric T Sutton

Attorney General’s OfficeAttn: Criminal AppealsP. O. Box 20207Nashville, TN 37202

Dan Brollier, Asst. District Attorney 19th District, District Attorney’s Office200 Commerce StreetClarksville, TN 37040

Mr. Christopher D. Linseyc/o Montgomery County Jail116 Commerce StreetClarksville, TN 37040 120 Commerce St.

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