IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER 1997 SESSION
FILED
December 31, 1997
STATE OF TENNESSEE, ) NO. 02C01-9702-CC-00074
) Cecil Crowson, Jr.
Appellee, ) HENRY COUNTY Appellate C ourt Clerk
)
VS. ) HON. JULIAN P. GUINN,
) JUDGE
RICHARD CLINT PATTERSON, )
LINDA CAROL GIBBONS, and ) (Manufacturing a Controlled
ROBERT LEE WALKER, ) Substance, Possession of a
) Controlled Substance, and
Appellants. ) Possession of Unlawful Drug
) Paraphernalia)
FOR APPELLANT PATTERSON: FOR THE APPELLEE:
GUY T. WILKINSON JOHN KNOX WALKUP
District Public Defender Attorney General and Reporter
W. JEFFERY FAGAN KENNETH W. RUCKER
Assistant District Public Defender Assistant Attorney General
117 North Forrest Avenue Cordell Hull Building, 2nd Floor
Camden, TN 38320 425 Fifth Avenue North
Nashville, TN 37243-0493
FOR APPELLANT GIBBONS:
G. ROBERT RADFORD
DAVID H. HORNIK District Attorney General
222 Second Avenue North
Suite 360M TODD A. ROSE
Nashville, TN 37201-1649 VICKI S. SNYDER
Asst. District Attorneys General
FOR APPELLANT WALKER: P.O. Box 686
Huntingdon, TN 37344-0686
N. REESE BAGWELL
116 South Second Street
Clarksville, TN 37040
OPINION FILED:
GIBBONS: REVERSED AND DISMISSED
PATTERSON AND WALKER: MANUFACTURING AND POSSESSION OF ROCK
COCAINE CONVICTIONS REVERSED AND REMANDED; AFFIRMED IN
ALL OTHER RESPECTS
JOE G. RILEY,
JUDGE
OPINION
The defendants, Richard Clint Patterson, Linda Carol Gibbons1 and Robert
Lee Walker, were convicted by a Henry County jury of one (1) count of
manufacturing rock cocaine, one (1) count of simple possession of rock cocaine,
one (1) count of simple possession of powder cocaine and one (1) count of
possession of unlawful drug paraphernalia. Patterson was also convicted of one (1)
count of simple possession of marijuana. On appeal, defendants raise several
common issues for our review:
(1) whether the trial court erred in denying their respective motions to
suppress;
(2) whether the trial court erred in refusing to charge the jury on the
“personal use exception” to manufacturing a controlled substance;
and
(3) whether the evidence is sufficient to sustain the convictions.
Gibbons and Walker further raise the issues of: (1) whether the trial court erred in
admitting into evidence a weapon found in Walker’s vehicle, and (2) whether the trial
court erred in affirming the fines imposed by the jury. Walker also claims that the
trial court erred in failing to grant his motion to dismiss on the basis of his mental
incapacity to stand trial. Furthermore, Patterson claims that the trial court erred in
not granting a mistrial after the prosecution made an improper remark during closing
argument.
Because we find that the trial court improperly refused to charge the jury on
the “personal use exception” to manufacturing a controlled substance, Patterson’s
and Walker’s convictions for manufacturing rock cocaine and simple possession of
rock cocaine are reversed and remanded for a new trial. All of Gibbons’ convictions
are reversed and dismissed due to the illegal entry into her residence. In all other
respects, the judgment of the trial court is affirmed.
1
Defendant Gibbons was indicted under the name of “Linda Faye Gibbons.”
However, the indictment was subsequently amended to reflect that defendant’s name is
“Linda Carol Gibbons.”
2
STATEMENT OF THE FACTS
On May 17, 1995, Paris police officer Gregory Underwood was dispatched
to 807 Joy Street in Paris to investigate an assault. When he arrived at 5:59 a.m.,
Gibbons was standing outside of the house. The officer went inside with Gibbons
and found Patterson and Walker there. Both claimed that they had been in an
altercation with a black male, who had taken $100 from them. Although both men
had a substantial amount of blood on them, neither wanted to file a complaint.
Officer Underwood left the residence around 6:30 a.m.
While he was driving to work that morning, Henry County Sheriff’s
Department Patrolman Donnie Archie heard a radio transmission concerning the
assault at 807 Joy Street. During the transmission, Archie learned that Patterson
and Walker were present at the residence.
Shortly after arriving at work, Archie’s supervisor handed him two arrest
warrants for Walker and asked him to serve the warrants. Knowing where Walker
could be located at that time, Archie formulated a plan along with Officer
Underwood, Sergeant Donnie Blackwell with the Paris Police Department, and other
law enforcement officers to serve the arrest warrants on Walker at 807 Joy Street.
When they arrived at the residence, Archie and Blackwell knocked on the
door and announced that they had arrest warrants for Walker. Gibbons came to the
door and said that she had to get dressed. Blackwell asked her again to open the
door, and when she refused, he forced entry into the home by kicking in the door.
Gibbons was standing in the hallway fully clothed. The officers found W alker in a
bedroom and proceeded to take him into custody. During this time, the officers
noticed a burning torch on the dresser, along with spoons containing what appeared
to be cocaine.
Incident to his arrest, Walker was searched. The officers found a wallet
containing $9,384 in cash and a check payable to Walker for $300.
The officers then secured the premises while Sergeant Blackwell obtained
a search warrant. As a result of the search of the residence, the officers
3
confiscated a torch, a crackpipe and pushrod, spoons containing residue, syringes,
triple beam scales, an inhaler, a Tupperware bowl containing powder, a bowl with
a scouring pad, a gravy ladle containing residue, a bag of powder substance
appearing to be cocaine, glass jars with nylon strainers containing a milky residue,
a bottle cap containing residue, a “stash can,” and a “stash book.”2 The officers also
recovered a lunch box containing a toothbrush, bowls, a pocket knife, a razor blade,
pipes, a pill bottle containing residue, and a lighter. One of the officers found a 9mm
automatic weapon in a vehicle parked in the carport.
During the search Patterson was located in the attic of the home, where the
officers also found a propane strike lighter, a pair of hemostats, a bag of plant
material, a lighter and a soft drink can made into a pipe.
Many of the substances seized by the officers were tested by the Tennessee
Bureau of Investigation’s Crime Lab. The bag of plant material found in the attic
was tested and determined to be 1.6 grams of marijuana. The glass jars contained
a residue which tested to be cocaine. The bottle cap contained a residue which was
determined to be 0.9 grams of rock cocaine. The powder substance in the bag was
determined to be 1.7 grams of powder cocaine. The residue on a spoon was found
to be 0.4 grams of rock cocaine, and the residue on the gravy ladle was determined
to be 1.8 grams of cocaine. The Tupperware bowl contained 179.1 grams of baking
soda.3
Subsequently, the officers learned that the arrest warrants for Walker had
been satisfied previously. They further determined that the house was rented to
defendant Gibbons.
The defendants were indicted on one (1) count of manufacturing rock cocaine
over 0.5 grams, one (1) count of possession with the intent to sell or deliver rock
cocaine over 0.5 grams, one (1) count of possession with the intent to sell or deliver
powder cocaine over 0.5 grams, one (1) count of possession of marijuana and one
(1) count of possession of unlawful drug paraphernalia. The jury found all
2
Archie described the “stash book” as a book with the center of the pages cut out.
3
Several witnesses testified that sodium bicarbonate (baking soda) is used in
converting powder cocaine into rock cocaine.
4
defendants guilty of manufacturing rock cocaine over 0.5 grams and possession of
unlawful drug paraphernalia. The jury found all defendants not guilty on both counts
charging possession with the intent to sell or deliver cocaine, but found all
defendants guilty of the lesser included offense of simple possession of cocaine on
both counts. Patterson was convicted on the simple possession of marijuana count,
and Gibbons and Walker were acquitted of that offense.
The trial court sentenced all defendants to concurrent sentences of eight (8)
years for manufacturing and eleven (11) months and twenty-nine (29) days for each
conviction for possession. The trial court affirmed the fines imposed by the jury of
$50,000 for the manufacturing convictions and $2,000 for each count of possession.
The trial court denied alternative sentencing for Patterson and Walker, but ordered
that Gibbons be placed on community corrections after she served one (1) year in
confinement. From these convictions and sentences, defendants bring this appeal.
FAILURE TO TIMELY FILE MOTION FOR NEW TRIAL - WALKER
As a preliminary matter, the state contends that many of the issues raised by
Walker are waived due to his failure to timely file his motion for new trial. Therefore,
the state claims that appellate review is limited to those issues relating to the
sufficiency of the evidence and sentencing.
A motion for a new trial “shall be made . . . within thirty days of the date the
order of sentence is entered.” Tenn. R. Crim. P. 33(b). This provision is mandatory,
and the time for filing may not be extended. Tenn. R. Crim. P. 45(b); see also State
v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997); State v. Dodson, 780 S.W.2d 778,
780 (Tenn. Crim. App. 1989). Unlike the untimely filing of the notice of appeal, this
Court does not have the authority to waive the untimely filing of a motion for new
trial. See Tenn. R. App. P. 4(a). The sentencing order in this case was entered on
August 19, 1996. Walker filed his motion for new trial on September 19, 1996.
Therefore, Walker’s motion for new trial was untimely filed, and Walker has waived
his right to appeal any issues raised in the motion for new trial, except sufficiency
5
of the evidence and sentencing. See State v. Givhan, 616 S.W.2d 612, 613 (Tenn.
Crim. App. 1980).
However, this Court, in its discretion, may take notice of an error which
affects a substantial right of the defendant where it may be necessary to do
substantial justice. Tenn. R. Crim. P. 52(b). Because we find that the erroneous
jury instructions on the manufacturing charge affect Walker’s substantial rights, we
will address that issue. All other issues not relating to the sufficiency of the
evidence or sentencing are deemed waived. See State v. Martin, 940 S.W.2d at
569; State v. Dodson, 780 S.W.2d at 780.
Walker has, therefore, waived the issues regarding the admissibility of the
weapon and his competency to stand trial as we find no plain error. We have,
nevertheless, reviewed the record as to these issues and have found each to be
without merit. We also decline to find plain error regarding the motion to suppress
and consider it waived. This issue is more fully discussed under the heading Motion
to Suppress, infra.
MOTION TO SUPPRESS
Defendants challenge the trial court’s denial of the motion to suppress the
evidence seized as a result of the officers’ initial entry into the residence. They
claim that, pursuant to Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68
L.Ed.2d 38 (1981), the officers were required to obtain a search warrant in order to
enter Gibbons’ residence to arrest Walker. They assert that the subsequent search
warrant was tainted as “fruit of the poisonous tree”; thus, the evidence seized
pursuant to that search warrant should have been suppressed.
A. Procedural History
This issue presents a classic procedural nightmare. The defendants
submitted the motion to suppress to the trial court as a question of law regarding the
legality of the search of Gibbons’ residence. No oral testimony was heard. Each
party submitted a written memorandum of law. The parties stipulated that they
6
would adopt “the facts as found and developed in both the preliminary hearing had
in the General Sessions Court and the confiscatory proceedings that were had when
certain personalty was seized.” (emphasis added).
In its written order denying the defendants’ motion to suppress, the trial court
noted that the parties did not submit an agreed statement of the facts, upon which
the trial court was to base its decision.4 However, the trial court found that the
relevant facts were undisputed. We further note that, although the parties agreed
that the trial court would rely upon the facts found at the preliminary hearings and
the confiscation proceedings, there were no such findings at any of the proceedings
that are contained in the record before us. Nevertheless, the trial court made
findings of fact in its order, presumably based upon the varying versions of the facts
provided by the parties and its review of the transcripts of the subject proceedings.
The trial court found that, although the arrest warrants had been previously
satisfied, the warrants were facially valid and the officers did not act in bad faith in
executing them. The court concluded that the search warrant was not invalid merely
because it was issued based upon information obtained during the execution of an
invalid warrant. Although standing was contested by the state in its memorandum,
the trial court did not address this issue.
B. Patterson
We begin our analysis with Patterson’s argument in favor of suppression of
the evidence. However, all of Patterson’s citations to the record in support of his
position refer to trial testimony. Because the motion to suppress was handled prior
to trial, evidence adduced at the subsequent trial is irrelevant to our review of the
trial court’s determination on the motion to suppress. Therefore, Patterson did not
make appropriate references to the record for effective appellate review. Failure to
make appropriate references to the record results in waiver of the issue. Tenn.
Crim. App. Rule 10(b); State v. Turner, 919 S.W.2d 346, 358 (Tenn. Crim. App.
1995); State v. Hill, 875 S.W.2d 278, 283-84 (Tenn. Crim. App. 1993); State v.
4
Defendant Walker’s memorandum refers to a “Stipulation of Facts” filed with the
court. However, no such document exists in the record before this Court.
7
Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App. 1988); see also Tenn. R. App.
P. 27(a)(7) and (g). This failure is particularly crucial in this case since Patterson
had to establish standing to contest the search.5 We find no reference to the record
which establishes his standing. This issue is waived.
C. Gibbons
We now address the merits of the issue as to defendant Gibbons. In support
of her argument, Gibbons relies upon Steagald v. United States, 451 U.S. 204, 101
S.Ct. 1642, 68 L.Ed.2d 38 (1981). 6 In Steagald, the Supreme Court held that,
absent consent or exigent circumstances, law enforcement officers can not seek the
subject of an arrest warrant in the home of a third person without first obtaining a
search warrant. Id. In making its determination, the Court noted the differing
interests protected by an arrest warrant and a search warrant:
An arrest warrant is issued by a magistrate upon a showing that
probable cause exists to believe that the subject of the warrant has
committed an offense and thus the warrant primarily serves to protect
an individual from an unreasonable seizure. A search warrant, in
contrast, is issued upon a showing of probable cause to believe that
the legitimate object of a search is located in a particular place, and
therefore safeguards an individual's interest in the privacy of his home
and possessions against the unjustified intrusion of the police.
5
We again note that, in its memorandum, the state contested both Walker’s and
Patterson’s standing to challenge the search of Gibbons’ home. The issue of standing was
not addressed by the defendants. When seeking to suppress evidence seized pursuant to a
search warrant, a defendant has the burden of proving that he or she had a “legitimate
expectation of privacy in the place or property from which the items sought to be suppressed
were seized.” State v. Transou, 928 S.W.2d 949, 957 (Tenn. Crim. App. 1996). Our
examination of the transcripts from the preliminary hearings and the confiscation proceeding
indicates that neither Patterson nor Walker has established a legitimate expectation of
privacy in Gibbons’ home. The defendants’ mere presence at the residence is not enough to
establish an expectation of privacy. See Transou, 928 S.W.2d at 957-58. There is no
showing that they resided on the premises or were overnight guests. See Minnesota v. Olson,
495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). A “casual visitor” or a “transient party
guest” does not have a reasonable expectation of privacy in the host’s residence. Transou,
928 S.W.2d at 958 (citing United States v. Dix, 57 F.3d 1071 (6th Cir. 1995)). Accordingly,
it appears that neither defendant has standing to contest the search of Gibbons’ home,
although Walker would have standing to contest the seizure of the money and check from
his person. Gibbons has standing to contest the search as she resided on the premises.
6
We do not find plain error in denying Walker’s motion to suppress. Walker’s
reliance on Steagald is misplaced. Steagald concerned the rights of the residential owner,
not the arrested person. The Court’s holding was narrowed to determine “whether an arrest
warrant - as opposed to a search warrant - is adequate to protect the Fourth Amendment
interests of persons not named in the warrant, when their homes are searched without their
consent and in the absence of exigent circumstances.” 451 U.S. at 212, 101 S.Ct. at 1648
(emphasis added).
8
451 U.S. at 212-213, 101 S.Ct. at 1648. While the arrest warrant protects an
arrestee from an unreasonable seizure by the government, the occupant of the
residence is afforded no protection against an unreasonable invasion and search
of his or her home. 451 U.S. at 213, 101 S.Ct. at 1648. Accordingly, the Fourth
Amendment mandates that the police obtain a search warrant to execute an arrest
warrant in the home of a third person.
In the case sub judice, the officers clearly had an obligation to obtain a
search warrant in order to arrest Walker in Gibbons’ home. The state argues that
the record “contains absolutely no suggestion that the officers did not believe that
Walker resided at 807 Joy Street. Thus, a separate search warrant was
unnecessary since the home appeared to be the residence of [Walker].” We
disagree. In the transcript of the preliminary hearing for Patterson and Gibbons,
defense counsel asked Sergeant Blackwell:
Q And you had information at that point that Robert
Walker was living there also, is that correct?
A Had information that he was there.
Furthermore, Walker’s address as listed on the warrant was not 807 Joy Street.
We, therefore, decline to accept the state’s suggestion that there was no need for
a search warrant to enter Gibbons’ residence.
Because there is no evidence of consent or exigent circumstances, the
officers made an improper warrantless entry into Gibbons’ home. Therefore, as to
Gibbons, the subsequent search warrant was invalid as it relied upon information
obtained as a result of the illegal entry into her residence. Wong Sun v. United
States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963); State v. Clark,
844 S.W.2d 597, 600 (Tenn. 1992). Accordingly, the trial court erred in denying
Gibbons’ motion to suppress. Gibbons’ convictions must be reversed and dismissed
as the only evidence supporting the charges against her was obtained in violation
of the Fourth Amendment.
Even though Gibbons’ convictions are reversed and dismissed, we will still
address her remaining issues to facilitate possible Supreme Court review. See
State v. Woodcock, 922 S.W.2d 904, 912 (Tenn. Crim. App. 1995).
9
JURY CHARGE ON MANUFACTURING
A.
All of the defendants contend that the trial court erred in its charge to the jury
on the offense of manufacturing a controlled substance. They correctly maintain
that production of a controlled substance for one’s personal use is expressly
excluded from the statutory definition of “manufacturing.” They argue that, by
excluding the personal use exception to the definition of “manufacturing,” the charge
did not fully and fairly state the applicable law. Therefore, they maintain that the trial
court’s refusal to charge the jury on the “personal use exception” constituted
reversible error. We must agree.
B.
It is the trial court’s duty to give a complete charge of the law applicable to the
facts of the case. State v. Belser, 945 S.W.2d 776, 789 (Tenn. Crim. App. 1996);
State v. Howard, 926 S.W.2d 579, 585 (Tenn. Crim. App. 1996). The defendant has
a right to have “every issue of fact raised by the evidence and material to his
defense submitted to the jury upon proper instructions by the judge.” State v.
Brown, 836 S.W.2d 530, 553 (Tenn. 1992) (citations omitted).
C.
The defendants were charged with manufacturing a controlled substance; to
wit: cocaine. Tenn. Code Ann. § 39-17-417(a)(1), (c)(1). “Manufacturing” is defined
as:
the production, preparation, propagation, compounding, conversion
or processing of a controlled substance, either directly or indirectly by
extraction from substances of natural origin, or independently by
means of chemical synthesis, and includes any packaging or
repackaging of the substance or labeling or relabeling of its container,
except that "manufacture" does not include the preparation or
compounding of a controlled substance by an individual for the
individual's own use . . .
Tenn. Code Ann. § 39-17-402(14) (emphasis added). Manufacturing for one’s
personal use does not constitute the offense of “manufacturing” as contemplated
by the statute as it is expressly exempted from the definition of “manufacturing.”
State v. Valentine, 911 S.W.2d 328, 333 (Tenn. 1995). The legislative intent of this
10
statutory definition was not to legalize the production of a controlled substance for
one’s personal use; however, the production of a controlled substance for one’s
personal use would constitute the misdemeanor offense of simple possession under
Tenn. Code Ann. § 39-17-418(a).
The defendants requested that the trial court charge the jury as to the
“personal use exception” to manufacturing. Unfortunately, the discussion
concerning the charge to the jury occurred off the record. However, an examination
of the transcript at the Motion for New Trial hearing reveals that the trial court did not
believe that personal use was fairly raised by the proof presented at trial.
D.
The state argues that the record supports the trial court’s conclusion that the
“personal use exception” was not properly raised by the evidence; therefore, the trial
court was not required to include the exception in the charge. See State v.
Leaphart, 673 S.W.2d 870, 873 (Tenn. Crim. App. 1983). To the contrary, an
examination of the jury verdict unquestionably indicates that the jury well could have
inferred that the cocaine was manufactured for the defendants’ own use, rather than
for distribution, in that all defendants were acquitted of both counts of possession
with the intent to sell or deliver cocaine. These acquittals by the jury leave this Court
with no choice but to find that personal use was fairly raised by the evidence.
We find that the “personal use exception” was fairly raised by the proof at
trial, and the trial court’s failure to charge it left the jury with little choice but to
convict. See State v. Stoddard, 909 S.W.2d 454, 460 (Tenn. Crim. App. 1994).
Therefore, the convictions of Patterson and Walker for manufacturing rock cocaine
are reversed and remanded to the trial court for a new trial. Although Walker’s
motion for new trial was untimely filed, this error affected his right to a fair trial. We,
therefore, find plain error. 7 Tenn. R. Crim. P. 52(b).
E.
We note that the defendants were convicted of both manufacturing rock
7
A failure to find plain error in this instance would certainly create a meritorious
ineffective assistance of counsel claim due to defense counsel’s failure to timely file the
motion for new trial.
11
cocaine in Count One and simple possession of rock cocaine in Count Two, the
latter being charged as a lesser offense of possession with the intent to sell or
deliver rock cocaine. The indictment makes no distinction as to which rock cocaine
is charged in each count. As previously stated, we believe the legislative intent is
to classify the production of cocaine for one’s personal use as the misdemeanor
offense of simple possession. One may not “manufacture” a controlled substance
without necessarily possessing it. State v. Layne, 623 S.W.2d 629, 638 (Tenn.
Crim. App. 1981), overruled on other grounds, State v. Holt, 691 S.W.2d 520, 522
(Tenn. 1984);8 see Tenn. Code Ann. §§ 39-17-402(14), 39-17-418. Therefore,
simple possession of rock cocaine is a lesser offense of manufacturing rock
cocaine.
F.
Having determined that simple possession of rock cocaine is a lesser offense
of manufacturing rock cocaine, we are confronted with an interesting issue not
addressed by the parties; namely, the failure to merge the simple possession
conviction into the manufacturing conviction. We conclude the trial court should
have merged these two convictions, even though they were submitted to the jury in
different counts. See State v. Banes, 874 S.W.2d 73, 80-81 (Tenn. Crim. App.
1993); Raybin, Tennessee Criminal Practice and Procedure § 16.20 (1984). Under
the facts of this case, it would also appear the jury should have been instructed that
simple possession of rock cocaine was a lesser offense of manufacturing rock
cocaine under Count One. The jury was erroneously instructed that the defendants
could be convicted of both manufacturing rock cocaine and simple possession of
rock cocaine.
The significance of this issue is apparent in determining its effect upon the
remand for retrial. This Court has found reversible error with regard to the
manufacturing jury charge. Patterson and Walker must be retried under Count One
8
The Court in Holt overruled Layne to the extent that Layne held that a defendant
may not be convicted of both manufacturing and possession with the intent to sell. The
Court’s holding did not imply that simple possession was not a lesser included offense of
manufacturing.
12
for manufacturing rock cocaine. Furthermore, the offense of simple possession of
rock cocaine should be charged as a possible lesser offense under Count One. The
conviction under Count Two of simple possession of rock cocaine must be set
aside. These defendants may not be retried for possession with the intent to sell or
deliver rock cocaine under Count Two as they were acquitted by the jury of this
offense.
In conclusion, we set aside the convictions for (a) manufacturing rock cocaine
in Count One, and (b) simple possession of rock cocaine as a lesser offense of
possession with the intent to sell or deliver rock cocaine in Count Two. Defendants
may be retried only as to Count One charging manufacturing rock cocaine with its
lesser offense of simple possession of rock cocaine.9
SUFFICIENCY OF THE EVIDENCE
All of the defendants contend that the evidence is insufficient to sustain their
respective convictions. Each defendant argues that the state did not prove that he
or she either actually or constructively possessed the drugs and the paraphernalia.
They claim that their mere presence at the residence would not, by itself, support
the convictions for possession. Moreover, because the state did not prove
possession of either the drugs or paraphernalia, they assert that the evidence is
insufficient to sustain the manufacturing convictions.
A.
Where sufficiency of the evidence is challenged, the relevant question for an
appellate court is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
9
The only other alternative is to allow the simple possession conviction in Count
Two to stand and not give the new jury the option of this lesser offense. If the jury then
convicted of manufacturing rock cocaine, the Count Two simple possession conviction
would have to be set aside. This alternative does not seem fair or appropriate.
13
of the crime or crimes beyond a reasonable doubt. Tenn. R. App. P. 13(e); Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State
v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses' testimony are matters entrusted exclusively to the jury as the triers of
fact. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932
S.W.2d 1, 19 (Tenn. Crim. App. 1996). Although the evidence of the defendants’
guilt is circumstantial in nature, circumstantial evidence alone may be sufficient to
support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987);
State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993); State v. Buttrey,
756 S.W.2d 718, 721 (Tenn. Crim. App. 1988).
Great weight is given to the result reached by the jury in a criminal trial. A
jury verdict accredits the state's witnesses and resolves all conflicts in favor of the
state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839
S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn
therefrom. Id.; State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Moreover, a
guilty verdict removes the presumption of innocence which the appellant enjoyed at
trial and raises a presumption of guilt on appeal. State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). The appellant has the burden of overcoming this presumption
of guilt. Id.
B.
In addition to the manufacturing convictions, the defendants were convicted
of two (2) counts of possession of cocaine and one (1) count of possession of drug
paraphernalia. Tenn. Code Ann. §§ 39-17-418(a), 39-17-425(a)(1). Possession
can be either actual or constructive. State v. Cooper, 736 S.W.2d 125, 129 (Tenn.
Crim. App. 1987). “Before a person can be found to constructively possess a drug,
it must appear that the person has ‘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 (citations omitted). Mere presence in the area where
the drugs are discovered is not enough, standing alone, to support a conviction for
14
possession. State v. Transou, 928 S.W.2d at 956.
While we agree that mere presence is not enough to sustain the convictions
for possession, we find that there is sufficient evidence in the record for the jury to
conclude that each defendant constructively possessed the cocaine and drug
paraphernalia.
C.
Furthermore, notwithstanding our previous determination of an inadequate
jury charge on manufacturing, we find adequate proof in the record to sustain the
manufacturing convictions. The officers discovered a burning propane torch in the
bedroom. There was testimony at trial that much of the paraphernalia found was
used in converting powder cocaine into rock cocaine. Additionally, some of the
cocaine was found during its chemical conversion into rock form.
After a thorough review of the record, we find that the evidence is sufficient
to sustain the jury’s findings of guilt on all convictions.10 This issue is without merit.
ADMISSIBILITY OF WEAPON
Gibbons asserts that the trial court erred in admitting into evidence an
unloaded weapon that was recovered from Walker’s vehicle parked outside of the
residence.11 She claims that the gun was irrelevant to any issue presented to the
jury. Furthermore, she claims that even if the weapon was relevant to the issues,
the prejudicial effect of admitting the evidence outweighed any probative value it
might have.
This Court has recently held that the presence of firearms was circumstantial
evidence tending to establish that the defendant possessed drugs with the intent to
sell. State v. Willie J. Houston, C.C.A. No. 02C01-9604-CR-00135 (Tenn. Crim.
10
It is unclear whether Patterson is contesting his conviction for possession of
marijuana. If so, we find this issue to be meritless as the evidence is sufficient to sustain the
jury’s finding. We also note that Patterson conceded his guilt on this count to the jury during
closing.
11
As previously stated, Walker has waived this issue by the failure to timely file his
motion for new trial.
15
App. filed May 23, 1997, at Jackson). However, this Court based that holding on the
particular facts of the case. In that case, the police recovered three (3) loaded
weapons which were found within reach of the defendant at the time he was taken
into custody by the officers. This Court concluded that the jury could infer that the
defendant possessed the weapons in order to prevent someone from taking his
drugs and any money received as proceeds from illegal drug sales.
In the case sub judice, the weapon was found in Walker’s vehicle outside of
Gibbons’ residence. Further, the gun was unloaded. Therefore, the Houston case
is distinguishable.
We find that the gun was irrelevant to the issues presented to the jury,
especially as it would relate to Gibbons. See Tenn. R. Evid. 401. Consequently, the
trial court erred in admitting the weapon into evidence.
Nevertheless, we find no prejudice by its admission. The state presented the
weapon as a tool of the drug trade to prove the intention to sell or deliver the
controlled substances. Indeed, all defendants were acquitted of the possession with
the intent to sell or deliver counts. The error was harmless. Tenn. R. Crim. P.
52(a).
FINES
In their next assignment of error, Gibbons and Walker argue that the trial
court erred in affirming the fines imposed by the jury. They challenge their ability to
pay the fines. Therefore, they contend that the fines are unreasonable and should
be reduced.
For each defendant, the jury assessed a fine of $50,000 for the conviction for
manufacturing rock cocaine over 0.5 grams. The jury also assessed a fine of
$2,000 for each count of simple possession of cocaine and possession of drug
paraphernalia. Patterson received a fine of $2,000 for his conviction for simple
possession of marijuana.
This Court has the authority to review fines pursuant to the 1989 Sentencing
16
Act. State v. Bryant, 805 S.W.2d 762, 766 (Tenn. 1991). The defendant’s ability
to pay the fine is a factor to be considered along with other factors involved in
determining the total sentence. Id. However, the defendant’s ability to pay the fine
is not necessarily a controlling factor. State v. Marshall, 870 S.W.2d 532, 542
(Tenn. Crim. App. 1993). A substantial fine may be punitive in the same manner
that incarceration may be punitive. Id.
In its determination of sentencing, the trial court noted the defendants’ prior
criminal history involving the use of illegal drugs. The trial court also focused on the
seriousness of the offenses involved. Although the court found that enhancement
factors existed for both defendants, neither defendant’s sentence was enhanced
above the statutory minimum. We find that the trial court properly considered the
sentencing principles and all relevant facts and circumstances. The trial court
properly affirmed the fines imposed by the jury.
This issue is without merit.
IMPROPER REMARKS BY PROSECUTOR - PATTERSON
In the final assignment of error, Patterson claims that the trial court erred in
denying a mistrial after the prosecutor referred to the jury as the “conscience of the
community” during closing argument. He maintains that, due to the circumstantial
nature of the evidence presented, the remarks by the prosecutor were highly
prejudicial. Therefore, he contends that the trial court should have granted a
mistrial.
During closing argument, the Assistant District Attorney made the following
statements:
And as the members of this jury and the conscience of this
community, I know it is serious to you. And I ask that you when you
deliberate in this case that you look in your heart and that you see the
evidence for what it is and not escape what it is, that each of you find
these Defendants guilty of every count embraced in the indictment
that the Grand Jury has delivered. I ask you to find each and every
one of them guilty. Thank you.
Defense counsel objected out of the presence of the jury and requested that the
17
court declare a mistrial. The trial court found that the argument was not improper
and overruled the objection.
Counsel for the state and the defense are allowed wide latitude in arguing
their cases to the jury. State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994). “The
bounds of proper argument are established in large part by the facts in evidence,
the character of the trial, and the conduct of opposing counsel.” State v. Seay, 945
S.W.2d 755, 763 (Tenn. Crim. App. 1996).
An appeal to the jury to act as the community’s conscience is not necessarily
improper argument. See State v. Seay, 945 S.W.2d at 763-64; State v. Terrance
B. Pulliam, C.C.A. No. 02C01-9507-CR-00206 (Tenn. Crim. App. filed October 22,
1996, at Jackson); State v. Johnnie Lamont Dalton, C.C.A. No. 01C01-9408-CR-
00291 (Tenn. Crim. App. filed July 11, 1995, at Nashville); State v. Mark Weems,
C.C.A. No. 89-276-III (Tenn. Crim. App. filed April 19, 1990, at Nashville).
Moreover, this was an isolated incident, and the prosecutor does not appear
to be arguing deterrence in his “conscience of the community” statement. In the
context of the overall argument, the prosecutor’s statement was not improper. In
any event, Patterson has not demonstrated how he was prejudiced by the argument.
Any error was harmless, at best. Tenn. R. Crim. P. 52(a).
This issue is without merit.
CONCLUSION
All convictions of Gibbons are reversed and dismissed. The convictions of
Patterson and Walker for manufacturing rock cocaine in Count One and simple
possession of rock cocaine in Count Two are reversed and remanded for a new trial.
Upon retrial, the trial court shall submit manufacturing rock cocaine as charged in
Count One with simple possession of rock cocaine as its lesser offense. The
judgment of the trial court is affirmed in all other respects.
18
JOE G. RILEY, JUDGE
CONCUR:
GARY R. WADE, JUDGE
DAVID G. HAYES, JUDGE
19
State v. Patterson
Court: Court of Criminal Appeals of Tennessee
Date filed: 1997-12-31
Citations: 966 S.W.2d 435
Copy CitationsCombined Opinion