State v. Patterson

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

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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.

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 JOE G. RILEY, JUDGE

CONCUR:

GARY R. WADE, JUDGE

DAVID G. HAYES, JUDGE

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