### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A ugus t 5, 200 8



### STAT E O F T EN NE SSEE v. JAME S ROO SEVE LT FL EMIN G

Appeal from t he Circuit Court for Tipton Coun ty No. 5357 Joseph H. Walk er, III, Judge

No. W2007-02506-C CA-R 3-CD - Filed February 25, 2009

A Tipton County jury convicted t he defenda nt, James R oosevelt Fleming, of one count of possession of 26 gra ms or more of c ocaine with intent to deliver, a Class B felony, and one count of attempted possession of marijuana
, a Class B misdemeanor. The trial court sentenc ed the defe nd an t t o an eff ective se ntence of thirty year s as a c are er of fende r. On appea l, the defe ndant ar gues that the evidenc e produc ed at tria l was insufficient to support his felony conviction, and he also asserts that the trial court erre d by allowing opinion testimony in vi olation of Rule 701 of the Te nnessee Rules of Ev ide nc e . A ft e r r e vie wi ng the re c or d, we a ff ir m th e jud gme nts of

the tr ia l c ou rt

.

Tenn. R. App . P. 3 Appeal as of Right; Judgments of the Circ uit Court Aff irme d

.

D. K EL LY T HOMAS , J R ., J., delivere d the opinion of the court, in which T H O M A S T. W OOD ALL and N OR MA M C G EE O GLE , JJ., joined.

Ga ry F. A ntric a n, Di stric t Pu bli c De fe nd e r; a ndPe ri a nn S. H ou gh ton , A ssi stant Di stric t Pu bli c Def ender , for the a

ppellant, James Rooseve lt Fl eming.

Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; Lacy W ilber, Assistant Attorney Ge nera l; D. Michae l D unavant, District Attorney Ge nera l; and Cameron W illiams, Assi stant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

At trial, Chief James Paris of the Mason Police De partment testified that on Marc h 8, 2006, he wa s p art

of a gr ou p o f se ve n la w e nf

or c e me nt o ff

ic ia ls, inc lud ing me mbe rs of the Me mph is FB I Auto/Cargo Task Forc e and of fice rs from the Ma son and Atoka Police De partments, who we re looking for the def

endant. Chief Paris and the other of fice rs bega n their surveillance by following Shi rl e y L ud wi g, on e of

the de fe nd a nt’ s g ir lf

ri e nd s. Th e of

fi c e rs fo llo we d h e r f

ro m Mi lli ng tonin Shelby County t o her residenc e in Ti pton County. C hief Paris testified that when Ludwig a rrived2

at her residenc e, the of

fice rs conf

ronted he r, at whic h time she gave th e office rs information rega rding the def

endant’ s where abouts. Ludwig drove two office rs in her vehicle to a re sidence on Roseland Acr es Road in Atoka, whic h i s l ocate d in Tipton Count y. The other office rs followed Ludwig to the reside nce. U pon the office rs’ arrival, Chief Paris observe d the def endant in the f

ront pa sse ng er se a t of

a Ca dil la c , w ith a no the r m a n, Christ op he r H arp e r, sit tin g in the drive r’ s se a t. When the defe ndant attempted t o ex it the car , Chief Paris and two other office rs orde red the defe ndant onto the ground. Chief Paris then s ear ched the defe ndant for w eapons be fore handcuf fing him . I n th e c ou rs e of

his se a rc h, Chi e f Paris fo un d a

“ larg e , b a ll- typ e wh ite su bs ta nc e ” in a pla sti c bag in the def

endant’ s right front pants pocket. The substance was later ide ntified as coc aine. Chief Pari s a lso fo un d $ 93 2 c a sh in the de fe nd a nt’ s le ft re ar po c ke t. Mo st of the c ur re nc y w a s $ 20 bil ls,

a lth ou gh Chi e f P ari s said that th e re we re “ a c ou ple ” $1 00 bil ls.

After sear ching the def

endant, the of

fice r s s e a r c h e d the ca

r in which the de fendant was found. Chief Paris found what was later identified as a

“blunt,” or ma

rijuana c igar, on the pa ssenger -side floor, and he also found a bag of what was later identified as marijuana and a bag of what was later ide nti fi e d a s c ra c k c oc a ine in the c ar’ s c e nte r co ns ole

. He sa id that he did no t fin d a ny pip e s, str a ws , or mirrors on the defe ndant or inside the car

. Over the defendant’s objection, Chief Paris testified that in his op ini on , ba se d up on his thi rt y- tw o ye ars of e xp e ri e nc e in la w e nf or c e me nt and his familiarity with drug sales a nd distribution, t he coc aine f ound on t h e d ef

en dant was intende d for dis tr ibu tio n a nd no t for the de fe nd a nt’ s p e rs on a l us e . H e ba se d h is o pin ionon the “ siz e of the ba ll” of coc aine a nd upon th e fa ct t he def endant wa s car

rying a lar ge amount of mone y, most of which was in $20 b i lls. Chi ef Paris noted that he had obse rved “ in the drug sales that narc otics is sold, might be sold, at $20 a rock or two rocks or

howeve r they want to sell it .”

On cr oss-exa mination, Chi ef Paris said that he did not find plastic baggies, sca les, or ra zor blades on the de fenda nt’s person or inside the Cadillac. He said that Har per was also arr ested a nd that mo ne y w a s f

ou ndon him

a s w e ll. Chi e f P ari s r e a d in to t he r e c or d th e a ff ida vit pr e pa re d in

connec tion with the arre st warr ant in the ca se. In the affida vit, Chief Paris said that off icer s noticed the “strong odor

of marijuana ” coming from the Cadillac and that office rs found a substance , which turned out to be 29 grams of cocaine, in the def endant’ s jacke t pocket. Ch i ef P ar is testified that when the defe ndant was arre sted, his jacket “ was ove r his [pants] poc ket and [ the coc aine] appea red to be . . . in his jacket poc ket. But when we got him up and got it out, it was in his pants pocke t.” He a lso said that while he did not testify about the marijuana odor on dire ct exa mination, the odor was in fa ct pre sent at the time the off icer s approa ched the Cadillac.

Chief Jason Collins of the Gallaway Police Depa rtment testified t hat when he arrived at the ho us e wh e re the de fe nd a nt w a s a rr e ste d, the po lic e ha d th e defend a nt o n th e gr ou nd . Ch ie f P ari s the n g a ve Chi e f C oll ins a

ba gg ie of a wh ite po wd e ry su bs ta nc e

. Chi e f Col lin s pe rf orme d a fi e ld t e st on the substance
, a test which indicate d that the substance was c ocaine . He a lso weighed the c ocaine in the fi e ld u s in g d ig it a l s c a le s ; th e s c a le s in d ic a te d th a t th e c o c a in e w e ig h e d “ ap p r o x im a te ly 29 grams.” Chief

Colli ns secur ed this evidenc e, as w ell as the money and the other substanc es found in the Cadillac at the time of the defe ndant’s ar rest, and t ra nsfer

red it to the Mason Police Depa rtment’s evide nce loc ker.

Chief Collins, who testi fied that he had eighteen year s of law e nforc ement expe rienc e andIt i s u n c le a r f rom t he reco rd whether H arpe r was ever charged wit h any off ense f o l l o wi ng hi s arres t ; t he 1
d i spo si t i o n of any charges t hat m ay have b een f i l ed agai nst hi m i s al so unkno wn.

M a rc h 8 , 2 0 0 6 , w a s a W e d n e sd a y. 2

3 that he had ma de “thousands” of drug- related ar rests, said that in his opinion, the coca ine re cover ed from the de fenda nt was intended f or distribution, not personal use. He said that the “lar ge ball of

c oc a ine is co ns ist e nt with cu tti ng it up an d making c ra c k with it, wh ic h it wo uldmake a

larg e r p ro fi t fo r the pe rs on that’ s sel lin g it. The de no min a tio n o f m on e y th a t w a s r e c ov e re d f ro m [ the de fe nd a nt] is consi s t en t wi t h the drug sale s of $20 roc ks.” He further noted that in his experie nce, w hen a person bought coc aine f

or his persona l use, “most of it is a very small amount, . . . maybe a gram or two. And t hey split it up wit h a ra zor bla de into lines, and then they snort it, they can inject it, they

can smoke it. But ther e was none of that there

. . . .” Chief Colli ns said th at t h e c i g ar wr ap p ings found inside the ca

r we re “ consistent most of the time with marijuana c onsumption,” and that there was no white r esidue found in the marijuana blunt. On cross-e xamination, Chief Collins s aid that there wer e no plastic ba ggies or sca les found in the Cadillac, w hich was r egistere d to Harpe r.
Agen t D an a

Parmenter

with the Tenne ssee Bure au of I nvestigation (TBI) Crime La b testified that she tested f

our substance s submitt ed to the Crime La b in connec tion with thi s case . Agent Parm e nte r s a id that th e su bs ta nc es we re pr e se nte d to he r i n e vid e nc e ba gs . Sh e sa id that he r t e sts indicated that the f

irst bag containe d 27.7 grams of c ocaine ; the second ba g contained 7.9 gr ams of

mari juana ; th e thi rd ba g co ntaine d 0.6 gr a ms of ma ri juana ; and the fo urth ba g co ntaine d “ 2. 4 g rams of coc aine ba se,” or

cra ck coc aine.

Ha rp e r, te sti fy ing fo r the de fe ns e , sai d tha t onMa rc h 8 , 2 00 6, he wa s a t hi s mo the r’ s h ou se wh e n th e de fe nd a nt a

rrive d o n f

oo t. Ha rp e r sa id that the de fe nd a nt a sk e d h im t o s ta y o uts ide un til the def endant’ s ride ar

rived. Ha rper informed the defe ndant that he was “fixing to roll [a] blunt.” Be c a us e it w a s c olda ndwi nd y o uts ide , th e tw o me n g ot i nto Ha rp e r’ s Ca dil la c . H arp e r s a id that le ss than five minutes af

ter he and the defe ndant got into the car, the police ar rived. Ha rper said that he did no t kn ow wh e re the dr ug s fo un d in his c ar c a me fr om; he sa id that th e on ly dru gs he ha d o n h im at the time he wa s arr ested wa s the marijuana found in the “blunt.” Har per claimed that all char ges against him in connec tion with thi s case wer e dismissed. 1

The de fenda nt testified t hat t he night of March 8, 2006, he went to Har per’ s mother’s house, wher e he w aited on his ride home. He and Har per sat in Harpe r’s c ar f

or “a bout five minutes” bef

ore his ride pulled up. At that point, he exited the c ar, at which point two men and one w oman “jumped

ou t” of a truc k a ndtol d h im t o g e t on the gr ou nd

. He c la ime d tha t one of the me n p un c he d h im i n the mou th andthat th e wo ma n “st omp e d my hea d in the gr ou nd ” a nd “ bu st[ e d] my e ye .” He sa id that the police se arc hed him but that the y did not find any drugs in his pockets. He also said that he did not see any drugs i n Har per’ s Cadillac while he sat inside the car . The de fendant insist ed that he wa s unawa

re of the origin of the dr

ugs the police re cover ed fr om him. He said that he had “a bout five hundred [doll ars] in my pocket” at hi s arr est; the def endant sa id that he was e mployed “lay[ ing]

c arp e t,” a ndthat he ha d b e e n p a id the Fr iday b e fo re his arr e st. 2

On cr oss-exa mination, the defe ndant testified that he e arne d $320 a we ek and that he wasT he grand j ury had al s o i nd i ct ed t he defe nd ant on one coun t of vi ol at i ng t he habi t ual drug off ender s t at ut e, 3
b u t t h is c o u n t w a s d ism isse d

. 4 paid this a mount the Friday befor e his a rre st. He said that Ludwig was the pe rson for w hom he was waiting the night of his arre st. The def endant r eiterated his claim that the pol ice plante d the drugs

on him
, bu t he a lso a dmi tte d that he ha d no t pr e vio us ly me t th e of fi c e rs wh o a

rr e ste d h im a nddid not believe that the police had an “ axe to grind” with him.

Af te r r e c e ivi ng the e vid e nc e , th e jury f ou nd the de fe nd a nt gu ilt y of po sse ssi on of 26 gr a ms or more of

cocaine with intent to deliver, as c harge d in the ind i ct m ent. The jury acquitted the de fe nd a nt o f o ne c ou nt o f s imp le posse ssi on of mari juana bu t c on vic te d h im o f atte mpt e d s imp le possession of marijuana

. This appeal followed. 3

ANALY SIS

I. Admissibili ty of Opinion Testimony

On app e a l, the de fe nd a nt a sse rt s that “ imp e rm iss ibl e op ini on te sti mon y w a s u se d b y th e state to persuade the jurors to convic t [the] [ a]ppe llant” of possession of c ocaine with intent t o deliver. Specifica lly, the defe ndant ar gues that the trial c ourt err ed by allowing two police officer s to testify whether the coc aine f

ound on the def

endant wa s for his p er s onal use or intende d for sa le. Our criminal code provides, “I t may be inferr ed from the amount of a c ontrolled substance or substance s possessed by an of

fende r, along with other r eleva nt fac ts surrounding the ar rest, that the c ontrolled substance or

substances w ere possessed with the purpose of selling or otherw ise possessing.” Tenn. Code Ann. § 39-17- 419 (2006) ( emphasis adde d).

As both parties note in their briefs, this issue was not addr essed in the de fendant’s motion for ne w trial. As such, the issue i s wa i ved on appe al and the de fendant is li mited to plain error revie w. See Te nn. R. App. P. 3(e), 36(a ); T en n

. R

. Crim. P. 52(b). Pursuant to the plain error doctrine, “ [w]he n nece ssary to do substantial justice, an a ppellate c ourt may consider an error that ha s a ff e c te d th e su bs ta nti a l r igh ts o f an a c c us e d at a ny tim e , e ve n th ou gh the e rr or wa s n ot r a ise d in the mot io n for a

ne w t ri a l or a ssi gn e d a s e rr or

on app e a l.” Te nn . R. Cr im. P. 5 2( b) ; se e Te nn . R. Ap p. P. 36( b)

. In de te rm ini ng wh e the r pla in er ro r r e vie w i s a

pp ro pria te , th e fo llo wi ng fa c tor s mu st be esta blished:

(a ) T he re c or d .

. . c le arl y e sta bli sh [e s] wh a t oc c ur

re d inthe tr ia l c ou rt ; (b) a clea r and une quivocal rule of law [ has] be en bre ache d; (c) a substantial right of the a ccuse d [has] been a dverse ly affe cted; (d) the a ccuse d did not waive the issue f or tac tical re asons; and (e) consideration of the err or is “nec essary to do substantial just ice.”

State v. Smit h, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626, 641- 42 (Tenn. Crim. App. 1994) ). On a ppeal, the de fendant has the burden of establishi ng that these five fac tors are met. State v. Gomez, 239 S.W.3d 733, 737 ( Tenn. 2007) (“G omez II”) (citing State v.5

Bledsoe, 226 S.W.3d 349, 355 (Te nn. 2007)). The appellate court need not consider a ll five fac tors if any single fa ctor indicates that relief is not warranted. Smith, 24 S .W.3d at 283.

Rec ord on Appeal

Th e re c or d c le arl y r e fl e c ts w hat oc c ur re d inthe tr ial c ou rt

a s to thi s is su e . Ch ie f P ari s testified re garding the c ocaine that was found on the defe ndant at his arr est, noting that the def endant
was not in po s s e s s io n o f

d ru g p ar ap h e r n a li a

a t th a t t im e

. T h e St a te , a f te r e li c it in g te s ti mo n y th at Chief Paris had be en an of fice r for thirty-two year s and had ma de “nume rous drug a rre sts,” then asked Chief

Paris whether in his opinion the cocaine rec overe d from the de fendant was for persona l

use or wa s “possessed w ith an intent to deliver or sell.” The defenda nt objected on the gr ounds that the qu e sti on c a lle d f

or a le ga l c on c lus ion . The tr ia l c ou rt re sp on de d th a t it

wo ulda llo w C hie f P ari s to respond to the question if a proper foundation wer e laid. The prose cuting attorney the n asked the witness about his familiarity with drug sales a nd distribution, “d ru g o r coc aine c onsumption,”

coca ine a d d ic ti o n , a n d arr e s ts o f d ru g s u s p e c ts

. A f

te r th is s e r ie s o f

q u e s ti o n s , th e p r o s ecuting attorney a gain aske d Chief Paris whethe r, in his opinion, the coca ine re cover ed fr om the defe ndant was for the def endant’ s persona l use or wa s meant for distribution. The defendant a gain objecte d, arguing that a proper foundation had not be en established. The trial court ove rruled the objection and allowe d the offic er to re spond to the state’s question. The rec ord also ref lects that during Chief Colli ns’s testimony, after the office r testified r eg ar ding the defe ndant’s ar rest, the pr osecuting attorney a sked Chief Collins whether, in his opinion, the cocaine discovere d on the def endant wa s intended for persona l use or for distribution. The defe ndant did not object to this question, which Chief Collins answered.

Breach of Clear and Une quivocal Rule of Law

Howeve r, the de fenda nt cannot esta blish that a clea

r and unequivoca l r

ule of law has bee n br e a c he d. In thi s c a se , n e ith e r p oli c e of fi c e r wa s ten de re d as an e xp e rt wi tne ss, so the a dmi ssi bil ity of their testimony is to be primarily judged by the standard established in Rule 701 of the Tenne ssee Rules of Evidence . See State v. Justin Bradley Haynie, No. W2006- 01840-CCA-R3-CD, 2007 WL 43 35 48 1, a t *18 (T e nn . Crim . App . De c . 7, 200 7) , pe rm . ap p. de nie d, (T e nn . M a y 5 , 2 00 8) . Ru le 70 1 s ta te s :

If a witness is not testifying a s an expert, the witness’s testimony in the fo rm of opinions or infere nces is limited to those opinions or inferenc es which a re (1) r ationally based on the perc eption of the witness a nd (2) he lpful to a clea

r understanding of the witness’s testimony or the determination of a fa ct in issue.

Tenn. R. Evid. 701(a) (1)- (2). “Bec ause it is the jury’ s duty to draw conc lusions from the evidenc e prese nted, a ‘ non-expe rt witness must ordinarily confine hi s testimony to a narration of fac ts based on first-hand know ledge and avoid stating me re persona l opinions.’” Justin B radle y Haynie, 2007 WL 4335481, at *18 (quoting St ate v. Middlebrooks, 840 S.W.2d 317, 330 ( Tenn. 1992))

.

In State v. S amuel L. Giddens, No. M2002-00163- CCA-R3-CD, 2004 WL 2636715, at *26

(Tenn. Crim. App. Nov. 15, 2004) , this court addre ssed a c as e i n wh i ch two TBI age nts testified

re ga rd ing sp e c if

ic c ha ra c te ri sti c s o f a

dr ug se lle r as op po sed to a dr ug us e r. On e of

the a ge nts “testified that the pa cka g ing of the drugs a nd the quantity of the drug of ten indicate that a per son intends to sell, rather tha n use, a dr u g

. ” Id. The second a gent “a lso stated that the quantity and method of pac kaging, as we ll as the lack of drug par aphernalia and presenc e of cellular tele phones or page rs, indicate that a person is a drug seller.” This c ourt conclude d that the age nts’ testimony

wa s a dmi ssi ble un de r R ule70 1, statin g, “ Ba se d upo n what th e y h a d p e rc e ive d d uring the ir experience as nar coti cs off icer s, the age nts testified to the fac tors that commonly disti nguish one wh o p os se sse s d ru gs fo r pu rp os e of re sa le fr om o ne wh o p os se sse s d ru g f or pe rs on a l us e . T he y d id

no t te sti fy that the [d ]e fe nd a nt wa s guil ty as c ha rg e d. ” Id . at *3 . Si mil arl y, in this c a se bo th o ff ic e rs , who testified that they ha d extensive la w enf orce ment ex p er i en ce and had made numerous drugrelated ar rests, testified that the la

rge amount of drugs found on the defe ndant and the f act that the de fe nd a nt h a d a

larg e a mou nt o f c a sh on him , muc h o f w hic h w a s in $2 0 b ill s, wa s c on sis te nt w ith a per son who intended to distribut e t he drugs r ather than use them himself. This testimony was permissible under Rule 701, and the t rial court properly a dmitted it. The defendant is denied relief on this iss ue.

II. Suffic iency of Evidence

Th e de fe nd a nt a

rg ue s th a t th e e vid e nc e pr od uc e d at tria l w a s in su ff ic ie nt t o s up po rt his conviction for possession of twenty-six grams or mor e of c ocaine with intent to deliver. We disagree

. An appe llate cour

t’s standard of

revie w when the defe ndant questions the sufficie ncy of the evidenc e on appe al is “whe ther, a fter vie wing the evidenc e i n t h e l i ght most favorable to the
prosec ution, any

rational trier

of fa ct could have found the esse ntial elements of the c rime beyond

a re a so na ble do ub t.” Jac ks on

v. Vi rg ini a

, 44 3 U .S. 30 7, 31 9, 99 S. Ct . 2 78 1, 27 89 (1 97 9) (e mph a sis in orig inal). The appellate court does not rew eig h the evidenc e; rather, it presume s that the jury has resolved a ll conflicts in the testimony and dra wn all re asonable infere nces f rom the evide nce in f

avor of the state. See State v. Sheff ield, 676 S.W .2d 542, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978) . Questions reg arding witness cre dibilit y , conflicts in testimony , and the weig ht and value to be g iven to evid en ce we re re s o l ved by the jury . See State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997)

. A g uilty verdic t removes the pr esumption of innocenc e and r eplac es it with a presumption of gu i l t , an d o n appea l the defe ndant has the bur den of illustrating why the evidenc e is insufficient to support the jury ’s v erdic t. I d.; State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982) . This standard a pplies to finding s of guilt based upon direc t evidence , circ umstantial evi dence , or a c ombination of both direct and c ircumstantial evidenc e. State v. Pender g rass, 13 S.W .3d 389, 392-93 (Te nn. Crim. App. 1999).

As re le va nt t o th is c a se , a

c on vic tio n f

or po sse ssi on

of c oc a ine wi th i nte nt t o d e liv e r, a Cla ss B f elony , require s proof be y ond a rea sonable doubt that the defe ndant knowing ly possessed coc aine with the intent to deliver. Te nn. Code Ann. § 39-17- 417(a) (4) a nd (c) (1) ( 2006). In this case, evidenc e showe d that at the time of his ar rest, the defenda

nt was found with a ba g containing27.7
g rams of c ocaine . This evidence is not disput ed by the defe ndant on appe al. Rather, the defe ndant’s7

argume nt t

hat th e e vid e nc e wa s in su ff ic ie nt t o s us ta in h is co nv ic tio n is g ro un de d s ole ly in h is contention that there was not pr oof beyond a rea sonable doubt that the defe ndant intended to deliver the c oc a ine . T his a sse rt ion , in tur n, wa s b a se d la

rg e ly on the de fe nd ant’ s argume nt that th e of fi c e rs ’ testimony reg ardingtheir opinions of whethe r the c ocaine found on the defe ndant was intende d for delive ry wa s im pe rm iss ibl e . A s st a te d a bo ve , w e have c on c lud e d th a t th e tr ia l c ourt pr op e rl y

a dmi tte d th is t e sti mony . B oth of fi c e rs te sti fi e d th a t th e de fe nd ant wa s fo un d wi th a larg e qu anti ty of coc aine on his person at t he ti me of his ar rest, and the y

also testified that the fa ct that most of the
money found on the de fenda

nt was in $20 bills was consistent with drug sales in which a “roc k” of

coca ine would be sold for $20. Additionally
, Chief Colli ns testified that per sons who use coc aine often use only

about a g ram at a ti me, m uch less than t he amount which the defe ndant possessed at his arre st, and the evide nce show ed that no coc aine wa s found in the blunt that was re cover ed fr om Har per’ s Cadillac. This e vidence was sufficie nt f or the jury to f

ind be y ond a re asonable doubt that the def endant intende d to deliver the c ocaine with which he wa s found upo n h i s ar re s t . The defe ndant is theref

ore de nied re lief on this issue.

CONCLUSION

In consider ation of the for egoing and the record as a whole, the j udgments of the trial c ourt

are aff irmed.

_____ _ _ _ _ _ _ _ _ _ _________________ D. KELLY THOMAS, JR., JUDGE