State of Tennessee v. Benjamin Gunn, W2016-00338-CCA-R3-CD

Background

In 2008 police executed a search warrant at 1432 May Street; officers observed Gunn jump from a couch, flee, and throw a clear bag; officers recovered powder cocaine from his hand, multiple foil‑wrapped crack rocks, and marijuana from the residence.
Laboratory testing confirmed cocaine (powder and cocaine base) and marijuana; total recovered crack gross weight exceeded 8 grams and powder ~1.3–1.8 grams. An expert testified the packages were "packaged to sell."
Gunn was tried, convicted, and that conviction was reversed on prior appeal because the trial court had allowed evidence of prior searches prematurely; retrial followed. At retrial the trial court admitted testimony about prior searches and prior convictions after finding Gunn opened the door by his cross‑examination and testimony.
Gunn was convicted of possession of cocaine with intent to sell/deliver (merged) and third‑offense possession of marijuana; he received an effective 14‑year sentence (12 + 2 consecutive).
On appeal Gunn raised sufficiency of the evidence, admission of prior search/404(b) evidence, sentencing challenge to marijuana enhancement, admissibility of expert testimony about dealer characteristics, prosecutorial misconduct, judicial comments on warrant legality, and cumulative error. The Court of Criminal Appeals affirmed.

Issues

Issue	State's Argument	Gunn's Argument	Held
Sufficiency of evidence for cocaine with intent to sell/deliver	Officers saw Gunn discard/possess cocaine; expert opined drugs were packaged for resale; quantity and packaging support intent	Evidence insufficient to prove intent to sell; claimed lack of knowledge/ownership	Affirmed: viewing evidence in State's favor, rational juror could find intent beyond reasonable doubt (Jackson standard)
Admission of testimony about prior searches/prior incidents	Evidence admissible because Gunn opened the door by eliciting background/prior contact and by his testimony; prior incidents probative of knowledge/intent and admissible under 404(b) after jury‑out hearing	Trial court violated prior CCA remand instruction and improperly allowed prior‑search testimony in State's case‑in‑chief without proper 404(b) showing	Waived in part (no timely objection); otherwise CCA rejects Gunn’s challenge and affirms admission given his opening and later 404(b) analysis, though court criticizes trial judge’s reliance solely on door‑opening theory
Sentencing for third‑offense marijuana (Class E felony) after 2016 statutory amendment	Sentence proper because at offense and sentencing time statute made third offense a Class E felony; amendments presumed prospective	Argues 2016 amendment removing enhancement should apply retroactively	Affirmed: apply statute in effect at time of offense; legislative intent presumes prospective application; T.C.A. §39‑11‑112 requires use of law in effect at commission time
Admissibility of expert testimony about dealer appearance/characteristics	Expert (undercover experience) qualified; testimony about packaging, quantity, and appearance assisted jury	Testimony that Gunn “looked healthy” and thus not a user improperly vouched/was prejudicial	Affirmed: expert testimony was within his field, admissible under Tenn. R. Evid. 702; no abuse of discretion shown
Prosecutorial misconduct (eliciting prior searches, impeaching with convictions, remarks in closing)	Cross‑examination and 404(b)/609 procedures were followed; questioning proper after door opened; closing argument within bounds	Prosecutor violated prior appellate directive, used convictions/impeachment improperly, and misstated evidence in closing	Mostly waived (no contemporaneous objections); CCA finds questioning/impeachment permitted after hearing and door opening, but criticizes some prosecutorial remarks as improper though not preserved for reversal
Trial court comments on legality of search warrant	Court had ruled warrant valid and told Gunn so during proceedings	Judicial comments invaded jury function and were prejudicial	Waived (no contemporaneous objection); issue not remedied on appeal
Cumulative error	Multiple asserted errors require reversal in aggregate	Cumulative effect requires new trial	No reversible error found (most issues waived or harmless); cumulative error claim rejected

Key Cases Cited

Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
State v. Dorantes, 331 S.W.3d 370 (circumstantial evidence and appellate review principles)
State v. Davis, 354 S.W.3d 718 (appellate standard of review for sufficiency and inferences)
State v. Scott, 275 S.W.3d 395 (trial court gatekeeper role for expert testimony under Tenn. R. Evid. 702)
State v. Goltz, 111 S.W.3d 1 (framework for evaluating prosecutorial misconduct)
State v. Pulliam, 950 S.W.2d 360 (factors for assessing prosecutorial misconduct and prejudice)
State v. Waller, 118 S.W.3d 368 (standard of review for admissibility of prior convictions under Tenn. R. Evid. 609)