### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 2000 Session

STATE OF TENNESSEE v. TYWAN F AULK

Appeal as of Right from the Circuit Court for Montgomery County

No. 39811 Robert W. Wedemeyer, Judge

No. M1999-01124-CCA-R3-CD - Filed August 31, 2000

T he appellant, Tywan Faulk, appeals his conviction by a jury in the Montgomery Cou nty Circui t Courtof one count of possession of more than .5 grams of coc

aine with intent to d

eliver and within 1,000 feet of a school,

a class A felony

. Prior to trial, the

appellant pled g

uilty to drivin

g on a revoked license, a class B misdemeanor. Pursuant to the appellant’s conviction for possession of cocaine with intent to deliver, the trial court imposed a sentence of fifteen years incarceration in the Tennessee Dep art men t of Cor rect ion . Ad dit ion all y, th e tr ial cou rt i mpo sed a sen ten ce of thi rty d ays incarceration

in the county jail for

the driving on a

revoked license conviction. The trial court further ordered that the appellant’s sentences be served concurrently. On a ppeal, the appellant presents the following issues for review: (1) whether t he tri al court erred i

n denying t

he appellant’s mo

tion to suppressevidence seized a s a result of an unl

awful detention; (

2) whether the tr

ial court erred

in denying the appellant’s motion for judgment of acquittal with

regard to posse

ssion with intent to se

ll

or deliver at the clo

se of the State’s c

ase in chief as the evi dence was insufficient to support the conviction; (3) whe the r the trial court erred by allowing the arresting officer to testify that the passenger in the appellant’s car had a certain amount of cash in his possession; (4) whether the trial
court erred by g

iving supplementa

l instructions to the

jury with o ut first putting the

instructions in writing; (5) whether the

trial court erre

d by repea tedly referring to the prosecutor as “General” in the presenceof the jury throughout the proceeding; and, (6) whether the prejudicialeffect of these errors cumulatively

requires rever

sa l of the appellant’s conviction. Upon review of the record and the parties’ briefs , we affirm the ju dgment of the tri

al court.

Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Circuit Cour

t is Affirmed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R.W ADE , P.J. and J OE G. R ILEY , J. joined.

Carrie W. Kersh, Clarksville, Tennessee, for the appellant, Tywan Fa ulk.

Paul G. Summers, Attorney General and Reporter, Todd R. Kel ley, Assista nt Attorney G

eneral, Daniel Brollier, Assistant District Attorney General, and Lisa Donegan, Assistant District Attorney General, for the appellee, State of Tennessee.-2- OPINION I. Factual Backgr

ound. On November 25, 1997, at approximately 2:20 p.m., school resourceofficer (SRO) Fowler Goodowens observed

the appellant and

a passenger dr

ive ontothe grounds of Kenwood H igh School in Clarksville, Tennessee, and park in the student parking lot. Officer Goodowens did not recogni ze the vehicle as be

longing to a stud

ent nor did see th

e parkin g decal used by

students to identify their vehicles. Pu

rsuant to his duties as an SRO, Officer Goodowens decided to investigate
to determine if the unknown vehicle belonged to a truant or someone who needed assistance. Officer Goodowens parked partially behind the appellant’s vehicle, and approached the appellant. Officer Goodowens looked inside the ve hi cle, and noticed an open, partially consumed container of beer underneath the passenger’s legs.

Officer Goodowens asked the appella nt to state his

reason for being on campus. The appellant replied that he was there to pick up Junior Kelly, whom the

officer knew was not a student
at Kenwood High School. Officer Goodowens asked the appellan t and his passenger to produce identification and each produced a driver’s license. The officer pr oceeded to his ca

r with the licenses
to obtain further information, and discovered that the appellant’s license had been revoked. Officer Goodowens returned to the appellant’s vehicle, asked the appellant to step outof the car, and placed the appellant

under arrest for driving on a revoked license. After being place d in the police car, the appellant asked the office

r to get the appe

llant’s jacket fr

om th e back

of his car and remove the appellant’s money from h is jacket pocket.

Pursuant to the app

ellant’s reques

t, Officer Goodowens searched the appellant’s jacket for the money. In the poc kets of the jacket, Officer Goodow ens discovered twen

ty dollars in

cash and 2.9 grams of crack cocaine. Officer Goodowens plac ed the appellant under arrest for the possession of more than .5 grams of cocaine. There was no dr ug paraphernalia

in or around the appellant’s car or on the appellant’s person. A search of the passenger revealed that he

possessed one hund

red and eighty

dollars in small bills

.
The ap pe llant filed a motion to suppress the evidence obtained as the result of an unlawful detention because the officer did not have reasonable suspicion to stop and detain him. The trial c ourt held a heari

ng on July 10, 1 998, and denied the motion to suppress. A

Montgome

r y County jury heard

the appellant’s c

asein November of 1998. The jury could not reach a unanimous verdict. Accordingly, the trial court declared a mistrial.

On January 20 , 1999, p ursuant to a new trial, a jury convicted the appellant of possession of cocaine in excess of .5 grams of cocaine with intent to deliver, a class B felony . Tenn. Co de Ann. § 39-17-417 ( a)(2), (c)(1) (1997). The jury further found the

appellant guil ty o f possession within 1,000 feet of a school in viol ation of the Drug-free School Zones Act, and accordingl y

the conviction was enhanced to a class A felony. Tenn. Code Ann. § 39-1 7

- 432(b)(1997). The appellant pled guilty to driving on a revoked license, a c lass B misdemeanor. Tenn. Code Ann. § 55-50-504(a)(1)(1998). The trial court sent enced the app ell ant to t hir ty da ys incarceration

in the county

jail for driving on a revoked lice nse and to fiftee

n years inc

arceration in-3-

the Tennessee Department of Corre c tion for possession of cocaine with intent to deliver, with the sentences to be served concurrently.

II. Analysis.

The appellant appeals his convictionof possession of co caine with intent t

o deliver. The appellant argues tha

t: (1) the trial court er

red in deny

ing the appellan

t’s motion to suppres s evidence seized as a result of an unlawful detention; (2) the trial court erred in denying the appellant’s motion for judgment of acquittal with regard to possession with intent to sell or deliver
at the close of the State’s case in chief as the evidence was insufficient to support the conviction; (3) the trial court erred by allowing the arresting of ficer to testify that the passenger in the appellant’s

car had a certain amount of cash in his possession; (4) thetrial court erred by giving supplemental instructions to the jury without first putting the instructions in writing; (5) the trial court er red b y repeatedly

refe rri ng to the pro secu tor as “G ener al” in t he p res ence of t he j ury thr oughout the proceeding; and, (6) the p rejudicial effect of these errors cumulatively require s reversal of the appellant’s conviction. A. Unlawfully Seized Evidence

The State, as the prev

ail ing par ty at the suppression hearing, is entitled to the strongest le gitim ate view of the e vidence presen

ted at the suppres sion hearing, a s well as all reasonable

and legitimate inferences that may be drawn there from. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions concerning witness credibility, the weight and va lue t o be given the evidence, and all factual is su es raised by the evidence are resolved by the trier of fact, not the appellate courts. State v. Pruett

,788 S.W.2d 559, 561 (Tenn. 1990). A cc ordingly, as long as the evidence preponderates in favor of the trial court’s findings of fact, those findings will be upheld. Odom
, 928 S.W.2d at 23. However, the application of the law to the facts found by the trial court is a question of law subject to de novo review by this court. State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

The appellant argu es that t he t rial court erre

d in denying

his motion to suppres s evidenc e seized as a result o f an unlawful det

ention. He argu

es that Officer

Goodowens neede d reasonable

suspicion to approach and detain him and that the officer had no s u ch reasonable suspicion. Therefore, the appellant claims any evidence obtained after the illegal detention is tainted and rendered inadmissible. See Oregon v. Elstad , 470 U.S. 298, 105 S. Ct. 1285, 1287 (1984).

The Fourth Amendment to the United States Constitution states that people have the right “to be secure in their p ersons, houses, papers, and effects, against unreasonable searches and seizures.” Furthermore, t he Four th Amendment applie s to the states throu

gh the Fourtee

nth Amendment. Mapp v. Ohio , 367, U.S. 643, 655, 81 S. Ct. 1 684, 1 691 (1 961). Likewi se, Ar ticle I, Section 7 of the Tennessee Constitution declares that “people shall be secure in their persons, hous es , papers and possessions, from unreasonable searches and seizures.” Moreo ver, A rticl e I, Section 7 has been construed to

be “identical in intent and purpose with the Fourth Amendment.” State v. Downey , 945 S.W.2d 102, 106 (Tenn. 1997).1 Upon cross-examinati on by the appellan

t’s counsel

at the suppression hear ing, Offi cer Goodowens testif

ied as follows: Q: You pulled in behind his vehicle, didn’t you? A: Yes, ma’am. Q: You blocked it? A: I was kind o f catty-cornered . I don’t know if I was totally block ing the vehicle o r not.

-4- However, this does not mean that all police contact with citizens rises to the level of

a seizure. In Terry v. Oh

io , 392 U.S. 1 , 19, n .16, 88 S. Ct. 1868, 187 8, n.16 (1968), the Supreme Courtstated that “only when the officer, by means of physical force or sho w of auth ority, has in

someway restrained the liberty of a citizen may we conclude that a ‘seizure’ has oc curred .” Mo reover, “a p olice officer may in appropriate circumstances and in a n appropriate manner approach

a person for

purposes of investigating possibly criminal behavior even though ther

e is no probable

cause to make an arrest.” Id. The Supreme Court further explained that a seizure occurs “if, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.” United States v. Me ndenhall , 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). Theref

ore, we must

first determine at

what point a seizure took place, because only when

an officer’s contact with a person impermissibly intrudes upon his or her privacy or personal

security will constitutional protections be implicated. State v. Daniel , 12 S.W.3d 4420, 424 (Tenn. 2000).

In app lying the r

easonable person standard of Mendenhall to the instant case

, it is clear that Officer Goodowens needed no reasonable suspicion to first appro ach the appellant’s vehicle. It h

as been well

established that police “may approach a car in a public place and ask for driver identification . . . without any reasonable suspicion of illegal activity .” State v. Wilhoit , 962 S.W.2d 482, 486 (T enn. Crim. App. 1997) (citing State v. Pulley , 863 S.W.2d 29, 30 (Tenn. 1993));

see also Florida v. Bostick , 501 U.S. 429, 434, 11 1 S. Ct. 2382, 23 86 (1991). An off icer merely approaching a parked vehicl e would not make a reasonable person feel that he or she was not free to leave. Id. However, police contact with a citizen would become a seizure if, for example, the officer “retain[ed] a citize

n’s identificatio

n or other proper

ty” or “phy

sicall y r estrain[ed] a citizen

or block[ed] the citizen’s path.” Daniel , 12 S.W.3d at 426. The re is e vidence in th

e record to suggest that Officer Goodowens parked his police car behind the appellant, partially blocking the appellant’s path. 1 It is unclear from the record whether or not the appellant was seized when Officer G oodowens parked behind him. While the trial court did not specifically address the issue o f whether there was a seizure when the officer pulled his car behind the appellant’s car, the trial court did find, based upon specific facts, that the officer had “reasonable suspicion to justify the stop.”

As an SRO, Officer Goodowens was especially familiar with Tenn. Code Ann. § 49- 6-2008(1997) whi

ch states: (a) In order to maintain the c onditi ons and atmosphere suitable for learning, no person shall enter

onto school buses, or during school hours, enter upon the grounds

or into the buildings of any school, except students assigned to that bus or school,

the staff of the school, parents of students, and other pe rsons wit h lawful and valid business on the bus o

r school premises

.-5-

(c) A violation of subsection (a) is a class A misdemeanor. Officer Goodowens had reasonable suspicion to believe that the appellant was violating Tenn. Code Ann. § 49-6-2008(a), and acted lawfully in approaching the appellant to investigate. The appellant

was on sch ool grounds, and was not a parent of a student, nor was he a student himself. The appellant did not have a school parking decal on his vehicle. Officer Goodowens also knew that the appellant could not be o n sch ool property to pick up Junior Kelly

because Mr. Kel

ly was not a studentat Kenwood High School. Officer Goodowen s was justified in approaching the appellant for the purpose of investigating the appellant’spossible criminal behavior, even if the officer’s belief did not rise to the level of probable cause. Terry , 392 U.S. at 22, 88 S.Ct. at 1880.

Furthermore, even if

Officer Goodowens did not seize the appellant when the officer parked behind the appellant, a seizure definitely took place when Officer Goodowe ns took the appellant’s driver’s license in order to check for additional information. See Daniel , 12 S.W.3d at 425-427; see also Florida v. Royer , 460 U. S. 491, 502, 10 3 S. Ct. 1319, 1326-27

(1983)(plurality opinion). A reasonable pe rson would not fee

l free to leave a fter a police of ficer confisca

ted their driver’s license. Id. Generally, an officer would need at least reasonable suspicion to detain a person for further in

ves tigation. Id. at 428. Here, Officer Goodowens more than met that burden. When Officer Goodowens took the appellant’s license, he had probable ca

use to believe that the appellant and his passenger were violating atleast two laws, trespassing on school property and possessing alcoholic beverages on school property. Tenn. Code Ann. §§ 49-6-2008(a), 39-17-715(a)(1997).

As a result of f urther check ing the appellant’ s license, Officer Goodowens discovered that the appellant

was driving on a revoked license, a class B misdemeanor. An officer witnessing

a misdemeanor generally issues a citation requiring the off ender to appear in court. Tenn. Code Ann. § 40-7-118(b)(1) (1997). Moreove r, there is no acc

ompanying

search incident

to arrest when a citation is issued. See State v. Chearis , 995 S.W.2d 641, 644 (Tenn. Crim. App. 1999). However, if the officer reasonably believes that the offender will continue to

violate the law he is being charged withafter the citati

on is issued, then a c

itation is inappropriate and an arrest should be made instead. Id. ; see also Tenn. Code Ann. § 40-7-118(c)(2). In this case, because the offense was driving on a revoked license, if Officer Goodowens merely cited the appel lant, the appellant would ha ve little choice but to drive away

in continuing violation of the law. Furthermore, O fficer Goodowe

ns also had at least a reasonable suspicion that the passenger had been

consuming alcoholic beverages and might not be able to legally drive the car. Th erefore, Officer Goodowens properly a rrested the appellant and took him into custody.

Officer Goodowens testifiedthat, after being placed in the police car, the appellant requested that the officer retrieve the appellant’sjacket from the backseat of the car and remove the appellant’s money from the pockets. The appellant effectively gave Officer Goodow

ens consent to search the jacket because the officer was ac ting upon t he direction of the appellant. Officer Goodowens disco vered the cr ack co caine while searc hing t he jac ket fo r the a ppell ant’s money. In any event, even if the appellant had not consented to the search of the jacket, the offi

cer neverthele

ss had the authority to search the appellant’s jacket, as well as the rest of the c ontents of the vehicle’s passenger compartments, as a search incident to a lawful arrest. See New York v. Belton , 453 U.S.-6-

454, 457, 101 S.Ct. 2860, 2862 (1981), State v. Watkins , 827 S.W.2d 293, 295 (Tenn. 1992). Based

on the foregoing, we conclude that the officer was acting leg ally at all times during this incident and therefore the drugs were properly admitted into evidence.

B. Sufficiency of Evidence The app ellant contends th e trial court err

ed in denyin

g his motion for jud

gment o f acquittal with regard to p ossession with inten

t to sell or deliv

er at t he close of the Sta

te’s case in chief as the evidence

was insufficient

to support the conv

icti on. Tenness ee appellate courts grant considerable

weight to the verdict of a jury in a criminal trial.A jury conviction essentially replace s the presumption of the defendant’s innocence with a presumption of guilt, shifting to the appellant the burden of proving to this court why the evidence will not support the jury ’s findings. State v. Tuggle
, 639 S.W.2d 913, 914 (Tenn. 1982). Th e ap pellant must demonstrate that no “reasonable trier of fact” could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e). The appellant has failed to meet this burden.

In order to convict the

appellant of possession of cocaine with the intent to deliver, the State was require

d to prove that the appellant knowingly possessed more than .5 grams of cocaine withthe intent to deliver the cocaine within 1,000 feet of a school. Tenn. Code Ann. §§ 39-17-417 (a)(2) & (c)(1),-432(b). There is no dispute that the appellant possessed the dr ugs and that the appellant was on school property at the time of possession. However, the appellant contends that the evidence was insufficient to prove his intent to deliver the drugs.

Intention to possess a controlledsubstance for the purpose of sale or delivery may be inferred from the amount of a cont rolled s ubstance possessed by an offender, along with other relevant facts surroundi ng the arrest. Tenn. Code Ann. § 39-17-419 (1997). In this case, the appellant possessed 2.9 grams of c rack cocaine in large chunk form. Officer Goodowens testified
at trial that, in his experience as a narcotics officer, that amount is greater than the .1 gram rocks a person would normally possess for personal use. See Cheari s , 995 S.W .2d at 645. Officer Goodowens further testified that the appellant did not

appear to be under the influence of drugs. Id. The appellant also

had no paraphernalia in his possession to indicate that he possessed the drugs for his personal use. Id. Officer Goodow ens testified that

the person the ap

pellant had alleg

edly come
to the school to see was not a student at that school and therefore the appellant had no othe r legitimate reason to be at the school at that time of day. As the ultimate trier of fact, it is the jury ’s roleto w eigh the evi den ce an d dr aw i nfer ence s fr om t he t est imo ny acc ord ingl y. Pruett , 788 S.W.2d
at 561. Based upon theevidence adduc ed at trial,the jury could have found the existence of all the elementsof possession of co caine with intent t

o deliv er beyond a

reasonable doub

t. This issue is without merit.

C. Passenger’s C ash The appellant claims that the trial court erred by allowing the ar resting office

r to testify that the passenger in the appellant’s car had a certain amount of cash in his possession. The appellant arg ues that the $180 in small bills in the passenger’s possession lacked relevance to the-7-

ap pellant’s guilt. Relevant evidence is defined as “evidence having any tendency to make th e existence of

any fact that is of conseque

nce to the determ

ination of the act

ion more probable

or less probable than it would be without the evidence.” Tenn. R. Evid. 401. The evidence tha t the passenger possessed a sign

ificant amount of c

ash in small bills indicates the appellant’s a ccess to ready change if needed to complete a drug sale. However, eve n if the admission of

the passenger’s cash was error, we conclude that it was harmless. There is no evidence to suggest that the admission of this fact into evidence prejudiced the appellant and affect ed the jury’s verdict, as there was sufficient evidence without

this fact to

convict the appe

llant. Tenn. R. App.

P. 36(b). This issue is without merit.

D. Supplemental Instructions

In the midst of

deliberation, after receiving the original, written jury instructions, the jury asked the judge to clarify the d iffer ence between the sale of and the delivery of a controlled substance. The tri al c our t gav e a su ppl eme nta l in str uct ion oral ly to the jur y. The appellant argues that the trial court erred by giving supplemen tal instruct ions to the jury without first putting the instructions in writing.

Tenn. R. Crim. P. 30(c) mandates that, in felony cases, “every word of the judge’s instructions shallbe reduced to writing before being given to the jury.” Our supreme court has stated that Rule 30(c) is “valid and imperative and not merely directory , but must be observed.” Taylor v. State
, 369 S.W.2d 385, 388 (Tenn. 1963). Nevertheless, a trial judge has the autho rity to gi ve supplemental instructions in respon s e to jury questions. State v. Forbes , 918 S.W.2d 431, 451 (Tenn. Crim. App. 1995).

Nevertheless,

it has also been pr

eviously est

ablished that,

while th e original jury instructions are to be given great conside

ration, supplemen

tal j ury ins tructions are purely for purposes of clarification and should not be afforded the same w eight as the orig inal instructions. Statev. Bondurant , No. 01C01-9501-CC -00023, 1996 WL 2

75021, at *14 (Ten

n. Crim. Ap p. at Nashville, May 24, 1996). If the supplemental instructions were written down and given to t he j ury, there is the risk

that the jury would afford those instructions inappropriate or undue weight. Id. Acco rdi ngly, “supplemental charges or instructions mer ely p urporting to elucidate a previous instruction . . . are not within Rule 30(c)’s written requirement.” Id.

Moreover, there is further case law to sugg

est that if a trial judge me

rely rereads the previous written instructio n without comme

nt ing on specific evidence or testimony, there is no reversibl e error in th

e trial court’s oral instruction. See Taylor , 369 S.W.2d at 388; State v McKheen
, No. 03C0 1-9706- CR-00209, 1998 WL 40229, at*7 (Tenn. Crim. App. at Knoxville, February 3, 1998)( perm. app. denied Tenn. 1998). However, the appellant has failed to include the original jury instructions in the record for our review. A decision as to whether the judg e was merely rereadingan instruction, as the record indicat es, or was giving entirely ne

w instructions woul

d require examination of those original instructions. The burden to provide a complete record for our review is on the appellant. Tenn. R. App. P. 24. This incomplete record therefore p recludes o

ur-8-

review of this issue. State v. Draper , 800 S.W.2d 489, 593 (Tenn. Crim. App. 199 0). Acco rdi ngly, we consider this issue waived. State v. Locke , 771 S.W.2d 132, 138 (Tenn. Crim. App. 1988).

E. Prosecutor as “General.” The appellant also contends that the trial court erred by repeated l y referring to the prosecutor

as “General” in the presence of the jury throughout

the proceeding . The appellant c laims that this title gave the prosecution an elevated status in theeyes of the jury, deny

ing the appellan

t a fair trial. The official titles of Tennessee prosecutors are Attorn ey General, Assistant Attorney General, District Attorney General, or Assistant District Attorney General. Tenn. Code Ann. § 8-7- 101 et. seq. The shortened hon orific “Genera

l” stems from those

titles. It is long standing tradition in the state of

Tennessee for t

rial judges to

refer to the prosecutors as “Ge neral,” in much th

e same fashion as attorneys acknowledge judges as “Judge” or “You

r Honor.” There

is no unfair prejudice to the appellant in

a trial where the

judge refers t

o the prosecutor by his or her official title. Tenn. R. App. P. 36(b). Furthermore, the appellant has made no specific allegation of how referring to the prosecution as “General” has pre judiced his case. A mere conclusory statement of error is not enough to establ

ish prejudice. Th

is issue is without mer

it.

F. Cumulative Error The appellant argues that

even if, standing alone, the errors he alleges are insufficient
to warrant a reversal of his conviction, the errors cumulativ

ely amount to

reversible err

or. Because

we found no merit to any of the appellant’s alle gations of erro

r, we need not ad

dress any p

ossible cumulative effect.

III. Conclusion.

Because the appellant has

fail ed to carry hi s burden on appeal, we affirm the judgment of the trial court

.

___________________________________ NORMA McGEE OGLE, JUDGE