Appeal is denied to Sparta woman

Posted By | May 30, 2013 12:00 am

Ruby W. Graham, who was convicted in the White County Circuit Court for an incident that occurred April 3, 2009 in which a TBI agent allegedly discovered hundreds of pills and marijuana in her possession, filed an appeal with the state Court of Criminal Appeals, and on May 28, was denied her request for a new trial and reduced fine.
According to the appeal, on April 3, 2009, TBI Special Agent Danny Espinosa and other officers executed a search warrant at Graham’s residence. When the officers arrived, Espinosa says he noticed a video surveillance camera hanging near the doorway.
Espinosa continued that Graham, who was in a wheelchair because of a traffic accident in 2007, would walk with her legs clinched “taking real small shuffle steps” when officers asked her to move to another chair so they could search the wheelchair, which made them suspicious.
When Graham sat in a wooden chair, Espinosa alleges, “she reached down under her leg and said, ‘Here you go,’ and handed [Agent Espinosa] a small little Ziploc baggy with six blue tablets.” Because the pills were in a baggy instead of a medication bottle, it indicated to him that the pills were “packaged for resale.”
In the kitchen, Espinosa reports he located a paper sack with a small shaving bag inside that reportedly contained “hundreds of pills…and some marijuana.” Espinosa told the court Graham claimed ownership of the bag.
The pills in the bag, according to Espinosa’s testimony, were packaged in “different medicine bottles, some labeled, some not labeled, some of the labels ripped off, and…some bottles had two or three different types of medication in there.”
Espinosa continued that many bottles that were labeled contained pills that did not match the label, and none of the bottles matched the defendant’s name, which Espinosa testified is “common for people selling narcotics.” He also noted some pills had been cut in half, which furthered his belief that the pills were being sold illegally.
The appeal states officers discovered a handwritten sign on a table that read, “don’t knock on the door until the sign is down,” which Espinosa noted as another sign of the illegal sale of drugs.
Along with the sign, officers reportedly located a nine-inch monitor for the camera and a police scanner, in addition to “money and other items of jewelry and stuff like that [that] we’d normally see people take on trade.”
TBI Agent Harold Eaton testified that along with the pills and marijuana officers allegedly discovered in the bag, he also located a pill-cutter and a calculator adjacent to the bag, which indicated to him that the pills were being sold. In the bedroom, Eaton stated he found $1,132 of cash “in small increments.”
Testing by TBI Agent and Forensic Scientist Laura Adams revealed some of the pills seized were morphine and oxycodone and confirmed the presence of marijuana in the baggy.
Howard Swoape testified on behalf of Graham and claimed Graham received $1,300 in monthly disability benefits. He stated he cashed her checks and paid her bills for her.
Swoape testified he paid part of a utility bill with $200 of the $1,300 check and returned $1,100 to Graham.
Swoape also claimed he had a prescription for hydrocodone and Graham took a great deal of medication because of injuries she suffered in the traffic crash and that several other individuals gave Graham their medications because they were “having problems with [their medications] being stolen.”
Swoape testified he just liked to listen to the scanner, and the video monitor was a “decoy.” He reportedly admitted the black bag filled with pills did belong to Graham.
The jury convicted Graham of lesser-included charges of attempted possession with intent to sell morphine, oxycodone and marijuana and imposed a penalty of $102,500.
An appeals hearing took place on Jan. 24, 2012, that concluded with a denial for a re-trial and a reduced penalty of $52,500.
In the second appeal filed on March 5, 2012, which the court found “untimely,” as it was filed more than 30 days after the appeal hearing on Jan. 24, Graham claims the evidence presented in the original trial was not sufficient for conviction and the testimony of the defense witnesses “clearly explained why the [defendant] had possession” of the drugs and items seized in the search of the residence.
The Tennessee Court of Criminal Appeals found that:
The evidence, in the light most favorable to the State, established that the defendant possessed a number of morphine and oxycodone pills that were not prescribed to her and a quantity of marijuana. The presence of a surveillance camera, police scanner and a large quantity of cash supported an inference that the defendant possessed the drugs for resale. The totality of the evidence clearly supports the defendant’s convictions of attempted possession of morphine, oxycodone and marijuana for resale.
Graham’s appeal also alleges that the imposition of the reduced fine of $52,500 is still unconstitutionally excessive, as she is unable to pay it because she lives on her “meager” Social Security checks and has “severe medical limitations.”
The court found that while Graham’s ability to pay is a contributing factor for the trial court to consider in reviewing the fine fixed by the jury, it is not the controlling factor.
“A significant fine is not automatically precluded just because it works a substantial hardship on a defendant-it may be punitive in the same fashion incarceration may be punitive.”
“The trial court heard this same proof regarding the defendant’s ability to pay and reduced the $102,500 fine fixed by the jury, choosing to impose a fine of $52,500 based upon its conclusion that the defendant had the ability to pay the lower fine. We cannot say that the defendant has demonstrated entitlement to further reduction.”

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