State v. Demario Hill aka David Weathers

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE JULY SESSION, 1998 FILED September 30, 1998

Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk ) No. 01C01-9707-CC-00444 Appellee ) ) DICKSON COUNTY vs. ) ) Hon. Robert Burch, Judge DEMARIO HILL, ) ) (Possession of Cocaine in Appellant ) excess of .5 grams with intent to sell and possession of drug paraphernalia)

For the Appellant: For the Appellee:

Clifford K. McGown, Jr. John Knox Walkup 113 North Court Square Attorney General and Reporter P. O. Box 26 Waverly, TN 37185 Janis L. Turner Assistant Attorney General (ON APPEAL ONLY) Criminal Justice Division 425 Fifth Avenue North Shipp R. Weems 2d Floor, Cordell Hull Building District Public Defender Nashville, TN 37243-0493

Carey Thompson Asst. District Public Defender P. O. Box 160 Charlotte, TN 37036-0160 Dan Mitchum Alsobrooks District Attorney General (AT TRIAL AND OF COUNSEL ON APPEAL) Robert Wilson Asst. District Attorney General P. O. Box 580 Charlotte, TN 37036

OPINION FILED:

AFFIRMED

David G. Hayes Judge

OPINION

The appellant, D ario Hill1, appeals as of right fromconvictions entered by the Circuit Court em

of Dickson County for possession of cocaine in excess of .5 grams with intent to sell, a Class B felony, and possession of drug paraphernalia, a Class A misdemeanor2. At the sentencing hearing as a Range I standard offender, the trial court imposed a fine of $2,000 and a ten (10) year sentence in the

Departm of Corrections for felony possession with intent to sell. This sentence was ordered to be ent

served concurrently with an eleven (11) months and twenty-nine (29) days sentence in the county workhouse for possession of drug paraphernalia. The appellant now raises two issues for our review. First, the appellant contends the trial court erred by permitting the State to introduce evidence of marijuana residue seized during a proper search of the residence. Second, the appellant challenges the sufficiency of the evidence to sustain a conviction for possession of cocaine with intent for resale and possession of drug paraphernalia. Following a review of the record, we affirm the trial court’s decision on both issues.

I. Factual Background

In M of 1996, a narcotics detective with the Dickson County Sheriff’s O ay ffice maintained

surveillance of Rosalind Thompson’s residence located at 1020 Evans Road in Burns, Dickson County. Surveillance persisted for four to six weeks approximately four days each week. The detective noted several vehicles in front of the house that would stay for short periods of time. On Thursday and Friday nights, he witnessed nearly twenty (20) vehicles at the residence.

1 The indictment also charges the appellant under the alias, David Weathers.

2 A Dickson County Grand Jury returned a three-count indictment against the appellant and a co-defendant, Rosalind Thompson, charging them with one count of possession of cocaine over .5 grams with intent to sell, one count of possession of marijuana, and one count possession of drug paraphernalia.

After procuring a valid search warrant for the stated address, the appellant and Rosalind Thompson were found inside the residence and two other males outside. The appellant was found in the bedroomwhich connects to the bathroom without his shirt and shoes preparing to take a shower. Upon interviewing the appellant, he told the officers he lived at Rosalind Thompson’s house; and she testified at his trial that she was “seeing” the appellant, he was “staying there off and on,” and he had spent the night on other occasions. Inside the bathroomin close proximity to the appellant, officers found a plastic bag containing crack cocaine, a small tinfoil packet containing a small amount of crack

cocaine, and a homem crack pipe with cocaine residue. ade

The two males outside the residence in the driveway were Edrick Weathers, the appellant’s

brother, and “Anthony” Dwayne Aulston. O was sitting inside a vehicle and the other w standing ne as

outside. Thompson testified while she was at w the two young men and the appellant rem ork, ained at

her house. The officer testified he removed a cellophane packet containing crack cocaine along with two packets of one-inch plastic bags from the washroom located in the carport. The samples of

cocaine tested from the residence weighed 2.2 gram and 3.8 grams. Three “roaches” were found in s

the dining room in the ashtray which the officer testified “appeared” to be marijuana. Elsewhere in the residence, the officer found rolling papers.

At the conclusion of the state’s case-in-chief, the appellant’s counsel moved for judgments of acquittal on all three counts. The trial court granted the motion with regards to count two of the

indictm possession of marijuana, because the field ent,

test failed to produce positive results; however, the motion was denied as to the other tw counts. o

Without presenting any proof, the appellant rested. The jury found the appellant guilty of both remaining counts.

I. Introduction of Evidence

First, the appellant contends the trial court erred by permitting the State to introduce evidence of marijuana residue or “roaches” found inside the residence. Initially, the State proceeded to present evidence of the possession of marijuana charge through testimony of the officer. Appellant’s counsel

objected to the officer’s testim on the ground that the officer w not qualified to determ whether ony as ine

the items identified as “roaches” did in fact contain a Schedule VI controlled substance.

The officer testified he had seventeen years of lawenforcem experience including six years ent

on Vice Squad, training at IPTMSchool, drug identification school, and narcotics investigation schools.

Moreover, he had arrested m than five hundred people in Dickson County for narcotics violations ore

ranging from marijuana roaches, crack cocaine, and LSD.

At this point, appellant’s counsel reiterated his objection stating, “He can say what it looks like, but he can’t say what it is. He didn’t perform any field test on it.” Appellant’s counsel failed to object to

relevancy of the evidence, failed to m a request for a jury-out hearing, failed to ask for a m ake otion to

strike, or request a curative instruction. Consequently, the trial judge limited the testimony to what the “roaches” appeared to be. In fact, the officer testified that he did perform a field test on the roaches which yielded a negative result. He concluded the test failed because of the age of the marijuana or the THC (tetrahydrocannabinol) level was low. On cross-examination, the officer stated there was a possibility it was not marijuana. The

marijuana was not sent to the TBI crim lab for further testing. e

The appellant avers the trial court should have given a curative instruction once the problem had fully developed. If the trial court does not give such an instruction, the appellant must request a curative instruction. State v. Mackey, 638 S.W.2d 830, 835-36 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1982). The failure to request the curative instruction constitutes a waiver of the issue. Mackey, 638 S.W.2d at 835-36; see also State v. Tizard, 897 S.W.2d 732, 747 (Tenn. Crim. App. 1994); State v. Jones, 733 S.W.2d 517, 522 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1987). Here, appellant’s counsel did not request a curative instruction after the introduction of the evidence, *5 therefore, the issue was waived.

Nevertheless, when the trial judge granted a judgment of acquittal for count two, possession of marijuana, he, in fact, did instruct the jury that they were not to consider the possession of marijuana since the field test was negative producing reasonable doubt the substance was marijuana. It is well settled in the state of Tennessee that a jury is presumed to have followed a trial court’s curative instruction. State v. Lawson, 695 S.W.2d 202, 204 (Tenn. Crim. App. 1985); State v. Blackmon, 701

S.W 228, 233 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1985). Here, the appellant .2d

complains from that which he benefitted following the trial court granting his motion for acquittal in count two. The appellant has failed to establish that the jury did not follow this instruction. This issue is without merit.

II. Sufficiency of the Evidence

Second, the appellant challenges the sufficiency of the evidence to sustain a conviction for

possession of cocaine greater than .5 gram with the intent to sell and possession of drug s

paraphernalia. Following a jury conviction, the initial presumption of innocence is removed fromthe defendant and exchanged for one of guilt, so that on appeal, the defendant has the burden of demonstrating the insufficiency of the evidence. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). It is the duty of this court to affirm the conviction unless the evidence adduced at trial was so deficient that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). In State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1990), this court held this rule is applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.

This court does not reweigh or reevaluate the evidence, nor m we replace our inferences for ay

those drawn by the trier of fact. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Furthermore, the State is entitled to the strongest legitimate view of the evidence and all reasonable inferences

which m be drawn therefrom State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 ay .

U.S. 954, 113 S.Ct. 1368, 122 L.Ed.2d 746 (1993). A jury verdict accredits the testim of state’s ony

witnesses and resolves all conflicts in favor of the state’s theory. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

A. Possession of Cocaine with Intent to Sell

The appellant argues that although he admitted to living at the residence, Thompson only stated that he stayed there “off and on.” Also, the appellant contends there was no evidence of drugs on his person or in the bedroom where he was found by the officers. In order to convict a defendant of possession with intent to sell, the State is required to prove

(1) the defendant knowingly possessed cocaine in excess of .5 gram and (2) the defendant’s s

possession was for the purpose of sale. Tenn. Code Ann. § 39-17-417 (a) (4) (c) (1) (1995 Supp.). Possession of a controlled substance can be based on either actual or constructive possession. State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991); State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). To constructively possess a drug, that person must have “the power and intention at a given time to exercise dominion and control over the drugs either directly or through others.” Cooper, 736 S.W.2d at 129 (quoting State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981)). Moreover, possession may be actual or constructive, either alone or jointly with others. State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1984); Armstrong v. State, 548 S.W.2d 334, 337 (Tenn. Crim. App. 1976), cert. denied, (Tenn. 1977). If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons

share actual or constructive possession of a thing, possession is joint. A person’s m presence in ere

the area where drugs are discovered does not show possession, and neither will association with the one who is in control of drugs. Cooper, 736 S.W.2d at 129. Pursuant to Tenn. Code Ann. § 39-17-419

(1991), inferences m be drawn of possession with intent to sale from the am ay ount of the controlled

substance along with other relevant facts surrounding the arrest.

Through the officers’ surveillance, they witnessed numerous cars com and going from the ing

residence. The appellant admitted to the officers he lived at the residence. He was left alone there *7 while Rosalind Thompson was at work. He shared common facilities and free access to all rooms. The officers found the appellant in the bedroomwithout his shirt and shoes preparing to shower. In the

bathroom the officers found a plastic bag and a tinfoil packet both containing crack cocaine. In ,

addition, the officers found two packets of plastic bags, one-inch bags, and a cellophane packet

containing crack cocaine. Expert testimony fromthe crim laboratory determined that the total amount e

of cocaine recovered weighed 2.2 gram and 3.8 grams. These combined factors constitute sufficient s

proof to permit a rational juror to infer beyond a reasonable doubt that the appellant possessed the cocaine with intent to sell.

B. Possession of Drug Paraphernalia

The appellant’s arguments for this conviction are the sam (a) he did not reside in the hom e e

and (b) there w no drug paraphernalia on his person nor in the bedroomwhere he was found. In as

order to convict the appellant of possessing drug paraphernalia, the state was required to prove beyond a reasonable doubt that he (1) possessed with intent to use, (2) equipment, products or materials, (3) intended for “... packaging, repackaging, . . ., containing, . . ., ingesting, inhaling, or otherwise introducing” a controlled substance into the human body. Tenn. Code Ann. §§ 39-17-402 (12) and-425(a)(1) (Supp. 1995).

The State m its burden of proof that the plastic bags and crack pipe were drug et

paraphernalia. The same constructive possession analysis above applies here. The officers found the

homem crack pipe in the bathroom where the appellant was proceeding to take a shower. The ade

officers also found two packets of plastic bags and one-inch bags in the laundry room and rolling

papers in the residence while he had free access to all room of the house. Accordingly, we hold that s

the record contains sufficient proof from which a rational trier of fact could infer the appellant possessed drug paraphernalia

Although the evidence in this case was circumstantial, a conviction may rest entirely upon circumstantial evidence. See Duhac v. State, 505 S.W.2d 237, 241 (Tenn. 1974), cert. denied, 419

U.S. 877, 95 S.C 141 (1974); State v. Hailey, 658 S.W.2d 547, 552 (Tenn. Crim. App.), perm. to t.

appeal denied, (Tenn. 1983). In order for a conviction to stand based on circumstantial evidence alone, the facts must be “so clearly interwoven and connected that the finger of guilt is pointed unerringly at the defendant and the defendant alone.” State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citing State v. Duncan, 698 S.W.2d 63 (Tenn. 1985)). The weight to be given circumstantial evidence and

“the inferences to be draw fromsuch evidence, and the extent to w n hich the circumstances are

consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 456-57 (1958).

In the case at bar, the evidence points unerringly at the appellant. The only evidence

presented at trial to indicate the drugs belonged to some else was the equivocal testim of Rosalind ony

Thompson. In view of the prosecution’s impeachm of this witness based upon prior inconsistent ent

statements and contradictory testimony offered at trial the jury was clearly entitled to give her testimony little if any weight. Therefore, the jury could easily infer from all these circumstances and

the close proxim of the discovered cocaine and drug paraphernalia to the appellant that his intention ity

was to exercise dominion and control over it.

After a review of the record, we find no error requiring reversal. The judgments of conviction entered by the trial court are affirmed.

____________________________________ DAVID G. HAYES, Judge

CONCUR:

______________________________________ PAUL G. SUMMERS, Judge

______________________________________ JERRY L. SMITH, Judge