### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A pr il 18, 200 6

STA TE OF TEN NES SEE v. TIMM Y L EE HILL

Appeal f romthe Circ uit Court for Marshall County No. 16347 Lee R ussell, Ju dge

No. M2005- 01126-CCA -R3-C D - F iled May 17, 2006

A Marsha ll Count y

Circuit Court jury

found the de fen d an t, TimmyL ee H ill, guilty of possession wi th i nte nt t o s e ll o ne -h a lf g ram or mor e of c oc a ine , a

Cla ss B fe lon y , pos ses si on wi th int e nt t o de liv e r o ne -h a lf

g ram or more of

c oc a ine , a

Cla ss B fe lon y , a ndre sis tin g arr e st, a Cla ss B misdemeanor. T he trial c ourt m erg ed the possession with intent to deliver c onviction into the possession with intent to sell conviction and imposed an eig hteen- y ear sentenc e for

the possession conviction and a

six ty -day sentenc e for

the eva ding arre st conviction to be serve d consec utively as

a Rang e I I
, multipl e offe nder in c onfinement. The de fenda nt appea ls, contending that the evidenc e was insuffic ient to support his conviction for possession w ith intent to se ll one -half g ram or more of c oc a ine . We a ff

ir m th e jud g me nts of

the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

J OS EP H M. T I PTON , J

. , d el ivere d the opinion of the court, in which D AVI D H. W EL L ES and J OHN E VE R E TT W I L L I AMS , J J ., joined.

F a nn ie J. Ha

rris, Na sh vil le , T e nn e sse e , f or the app e lla nt, Ti mmy

L e e Hi ll.

Paul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; C. D a nie l Lins, As sis ta nt A tto rn e y Ge ne ra l; Wil liam Michael McCown, D istrict A ttorney Gene ral; and Weakley E. Ba rnar d, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case relates to the defe ndant’s possession of 4.4 gr am s of cr ack c ocaine on May 27, 2004. L ewisburg Police Offic er James Whit sett testified that on May 27, 2004, betwee n 8:00 and 9:0 0 p .m. , h e wa s w or

kin g wi th the Se ve nte e nthJudic ia l D ist ri ct Dru g Ta sk F or c e in the F ir st Avenue are a. He s ai d t h at ab o ut ten to fifteen minutes a fter he beg an his surveillanc e of a drug house, he sa w two people me et outside the ho u s e, including Charlie Cross, a known dr ug deale r. He sa id that he saw the defe n d an t ap p roach Mr. Cross and that they interac ted for te n to fifteen

se c on ds . H e s a i d t h a th e c o u l d n o ts e e w h a tM r

. C r o s s a n d t h e d e f e n d a n tw e r e d o i n g w i t h t he ir-2-

hands because their backs were towards him but that they wer e standing within “rea ching distance” of ea ch other

and we re moving their arms. H e said that the defe ndant then wa lked up Fir st Avenue and that Mr. Cross w ent around the corne r of the house. He said the defe nd an t wa s fl i pping something in his hand, like he was c ounting money , drug s, or something else. He said that he wa s

ve ry famil iar w ith the way

str e e t tr a ns a c tio ns oc c ur

re d a ndthat he ra dio e d th e oth e r a g e nts to t e ll them what he ha d seen.

On cr oss-examination, Office r Whitsett acknowledg ed that he ha d seen Mr. C ross and watche d the house on pre vious occa sions and that this was the first time he had se en the de fenda nt the re . H e a c kn ow le dg e d h e did no t se e the de fe nd a nt a nd Mr

. Cr os s e xch a ng e a ny mon e y be c a us e of the way the y were s tand ing . H e a c kn ow le dg e d h e didno t se e the de fe nd a nt o r any on e e lse standing on the corner se lling drug s that night.

Seventee nth J udicial District Drug Task F orce Ag ent Shane Geor g e testified that on Ma y 27, 20 04 , h e a ndoth e r m e mbe rs of the t ask f

or c e we re in L e wi sb ur g c on du c tin g dr ug inv e sti g a tio ns

. He sa id he, Assistant Direc to r Tim Miller, and Specia l Ag ent B ill Osterman wer e riding in an unmarke d car

but were wea

ring shirts which identified them as police office rs. He s ai d t hat they drove a round the a

rea while Off

icer Whit sett watche d a known dr ug house b u t t h at they communicated w ith him byradio. He said Off icer Whit sett radioed the m an d s ai d he had se en a black male approa ch the house and eng ag e in what he believe d was a drug transac tion. He said one and a half to two minutes pa ssed from the time O ffice r Whit sett radioe d to the m and the time they

sa w the de fe nd a nt. He sa id the y watc he d the de fe nd a nt an d saw him ho ldi ng so me thi ng in h is h a nd s, l i k e h e w as co u n t i n g s o m et h i n g.
Ag ent Geor g e testified that they drove to the shoulder

of the roa d wher e the de fenda nt was walking and par

ked the c ar. H e s ai d Age n t Miller said to the defe ndant, “He y . Step over he re. I need to spe ak with y ou for just a moment.” He said drug deale rs did sell drug s on the stree t where they stopped. He sa id that the defe ndant took one and a half steps to the car and that he and A g ent Osterman be g an to g et out of the c ar. H e s ai d t h e defe ndant re alized Ag ent Miller was a police office r and r an aw ay

“like he w as try ing out f or a tra ck and fi el d

. ” He sa id that he and Ag ent Os te rm a n ra n af

te r the de fe nd a nt w hil e g ivi ng ve rb a l c omm a nd s to sto p b ut that th e de fe nd a nt d id not slow down. He said he could see the defe ndant t he entire time he was chasing him. He said that when he was a

bout three f

eet f rom the def

endant, he saw the de fenda nt rea ch int o h is right f ront pants pocke t, pull out an object, and thro w i t t o the side. He said that he c ould not see wha t the object wa s but that he did see the g ener al ar ea w here the object hit the g round. He said the def endant ran only five to six fee t bey ond wher e he thr ew the item be fore he wa s taken down.

Ag ent Geor g e testified that he held t he defenda nt until ot her of fice rs g ot there a nd that the oth e r o ff ic e rs a tte mpt e d to pla c e the de fe nd a nt in ha nd c uf fs . H e sa id the de fe nd a nt r e sis te d a rr e st by keeping his hands underne ath him. He s ai d t h at he took Assistant Direc tor Miller to the are a wh e re the de fe nd a nt thr e w the ob je c t and that the y fo un d a pla sti c ba g c on ta ini ng tw e nty -f ou r s ma ll bag s of what he suspecte d t o b e cra ck coc aine. He said that the def endant ha d $92 when he was

arr ested a nd that they

found the de fenda nt’s cell phone along the path whe re the defe ndant had r un.-3-

On c ro ss- e xami natio n, Ag e nt G e or g e a c kn ow le dg e d th a t he ne ve r s a w the de fe nd a nt t ry to sell drug s to any one and did not see him try to pass the drug s to someone. He sa id he believe d the d ef en d an twa s go i n g t o s el l t h e d ru gs b ec au s e t h ey we re p ac k age d i n a w ayco n s i s t en twi t h s el l i n g. He a cknowledg ed that he did not find a scale on the def

endant a nd that the small packa g es of c ocaine could be f ound on a per son after

he buy s them.

On re- direc t e x amination, Ag ent Geor g e testified that a drug deale r selling drug s on the stree t usually did not have drug para

pherna lia with him. He said 4.4 g rams of cra ck coc aine is a substantial amount of coc aine f

or the a rea and is consider ed “de aler

weig ht.” He sa id that if a per son were g oing to b uy 4. 4 g rams o f c ra c k c oc a ine , th e pe rs on wo uldno t w a nt t o h a ve it in indi vid ua l ba g s b e c a us e he would only

g et 3.5 g rams of c rac k cocaine and the r est of the we ight would be plastic bag s. He said that if a pe rson had twe nty -four “$20 bag s” of c ocaine in his possession, i t would be indicative that the pe r s o n w a s a d ru g d e a le r

. H e s a id th a t if a d e a le r b o u g h t 4

. 4 g r a ms in o n e lu mp s um for $2 00 a ndbr ok e the c oc a ine int o tw e nty -f ou r “ $2 0 b a g s, ” the n th e de a le r c ou ld m ake a $2 80 pr of

it. On re -cr oss examination, Agent Ge org e stated a n “8-ba ll” is a pproxi mately 3.5 g rams of c ocaine and is a su bs ta nti a l a mou nt.

Seventeen t h J udicial District Drug Task F orce Assistant Director TimothyMiller testified that on May

27 , 2 00 4, hepa

rt ic ipate d in the inv e sti g a tio n le a din g to the de fe nd a nt’ s a rr e st. He sa id that he asked the defendant to approa ch the car and that the de fenda nt took two or three ste ps toward him. He s aid t he defenda nt ran after seeing he was a poli ce office r. He said the other of fice rs beg an y elling c ommands for the de fenda nt to stop and identified themselves as police officer s. He said that once the defe ndant was caug ht, the office rs strug g led to g et the defe ndant handcuf fed. H e said that Ag ent Geor g e told him he had seen the defendant throw something out of hi s pocket a nd that they looked ar ound the ar ea. He said he found a plastic bag with nume rous small pie ces of what appe are d to be cr ack c ocaine . He sa id the plastic bag contained twenty -four smaller bag s of coc aine a nd wer e pack a g e d f

o r r e s a le

. H e s a id th a t in th e la s t f iv e y e ar s , h e h a d ma d e h u n d r e d s , may be eve n a thousand, drug arr ests and had ne ver a rre sted a user

with twe nty -four “$20 bag s” in his pocket. He said he ha d arr ested drug deale rs with multipl e pac kag es of “ $20 bag s.”

On cr oss-examination, Assist ant Dire ctor Miller testified that he knew Mr. Cross to be a user and seller . He a cknowledg ed he w rote in the c omplaint for this c as e t h at Mr. Cross was a drug deale r, not a drug user.

Seventee nth J udicial District Drug Task F orce Direc tor Tim L ane te stified that he wa s the vault and evidence custodian for the task forc e. He testified to the cha in of custody of the c ocaine
enter ed as an exhibi t. He sa id a roc k of coc aine we ighing 4.4 g rams would be w orth $225 on the street and could be broken down for resale. He said that 4.4 g rams was a larg e amount of coca ine for the Seve nteenth J udicial District and that most drug addicts attempted to purcha se a “ $10 or $20 rock.” He sa id the cra ck coc aine in this case could have sold for $480.-4-

On cr oss-examination, Director L ane sta ted t hat a person c ould ge t approxim ately forty -four

“ s m o k e s ” o u t o f 4

. 4 g r a m s o f c o c a i n e

. H e a c k n o w l e d g e d a “ $ 1 0 s m o k e ” w o u l d b e u s e d u p q u i c k l y. He sa id a “$10 smoke” would g ive the user a hig h for a

bout thirtyminutes.

Tenne ssee B ureau of I nvestig ation Ag ent Glenn Evere tt testified that he wa s a che mist i n the crime la boratory and that he ha d examined the substances contained in the twenty -four individual ba g s e nte re d as an e xhibi t. He sa id h e te ste d th e su bs ta nc e s in the ba g s a ndfo un d th e su bs ta nc e s in

e a c h o f the tw e nty -f

ou r ba g s to be co c a ine

. He sa id the tot a l w e ig ht o f the c oc a ine wa s 4 .4 5 g ra ms. He sa id the aver ag e amount of c ocaine in eac h bag was .18 g rams.

Ar l en e J o n es , t h e d ef

en d an t ’s m o t h er , t es t i fi ed t h at t h e d ef en d an th ad ad m i t t ed h e u s ed d ru gs

a ndwo uldno t li ste n to he r. On c ro ss- e xami natio n, Ms. Jone s ac kn ow le dg e d tha t th e de fe nd a nt d id

no t ha ve a

job or a ny inc ome in M a y

20 04 , b ut s ta te d th a t sh e wo uldg ive him a c ou ple of do lla rs

. She said she di d not know where the defe ndant got the $92 he had when he was a rre sted, unless he
g ot it from his wife. She said the de fenda nt did not sell drugs.

Sherlee n Har

ris, the def

endant’ s sister, testified that she had seen her br other use c ocaine and that she had two othe r brothers who also used c ocaine . She said that she would g ive the def endant $2 0 w he n h e a sk e d f

or mon e y a ndthat on e tim e the de fe nd a nt too k $20 ou t of he r pur se . On c ro ssexamination, Ms. Harris ac k n owledg ed that the de fenda nt did not work and that she would be shocked to lea

rn her brother ha d $480 “worth of stuff.” She said that as much a s he aske d her f or money , s h e d id n o t th in k h e h a d $ 4 8 0

. Sh e a c k n o w le d g e d s h e w o u ld b e v e r y s u rp r is e d if the defe ndant had $92 be cause he did not have a job. S h e said the defendant’s wife a lway s took care of him and g ave him whatever he wa nted.

Cha rl e s H ill , th e de fe nd a nt’ s br oth e r, te sti fi e d that he wa s liv ing in the Ma rs ha ll Co un ty

Jail beca use he violate d his probation for possession of drug pa raphe rnalia a nd public drunkenne ss. He said he was arr ested for having drug para pherna lia the same nig ht the defe ndant was a rre sted. He said that on May

27, 2004, he had be en with the defe ndant and “T y ” B aug h smoking c rac k coca ine. He sa id they

smoked “quite a

bit” of coc aine at a house on First Stree t. He said that he had neve r seen the defe ndant selling drug s but that the defe ndant used drug s.

On cr oss-examination, Mr. H ill stated that on May 27, 2004, he wa s smoking cr ack c ocaine from about 4:00 p.m. until ar ound 11:00 p.m. or midnight. He said he did not know how many times he smoked that da y . He sa id he went to the cra ck house many times without m oney . He sa id there

wer e betwe en twelve to fourtee n people at the house smoking c rac k cocaine. He a cknowledg ed that he wa s unemploy e d a n d th a t h is b r o th e r d id n o t h a v e a jo b

. H e a c k n o w le d g e d th e c o c a in e in the twenty -four

small bag s was a lot of c ocaine and that he had boug ht coca ine in simil ar ba g s, one at a time. He ack nowledg ed that the de fenda nt was g iving him small bag s of coc aine a nd that the defe ndant “de livered” it to him . He a lso acknowle dg ed he did not g ive the def endant money for the

cocaine.-5-

On re -direc t examination, M r. Hill testified that the most small bag s of coc aine he ever used
at o n e t i m e w er e b et we en t h i rt y an d fo rt y b ags

. He s ai d t h e mo s t m o n ey h e sp en to n t h e s m al l b ags of coc aine at one time was be tween $300 and $400.

Ma rc us Ty ro ne B a ug h, the de fe nd a nt’ s f ri e nd , te sti fi e d th a t he wa s c ur re ntl y inc arc e rate d in the Marsha ll Count y

J ail for a possession of cra ck coc aine c o n v i ction. He sa id he was a coca ine addict. He said that on May 27, 2004, he, the de fenda nt, and Mr. Hill smoked a lar g e amount of

cra ck coc aine.

On cr oss-examination, Mr. Baug h stated that the def endant told him he was g oing to buy an “8-ba ll” from Mr. Cross. He acknow ledg ed that the de fenda nt had provided the crack coca ine they

wer e sm oking but that they all paid for it. He said that he broug ht $40 with him for cra ck coc aine, that Mr. Hill paid some money , that the defendant paid more than $40, and that they smoked over $ 1 0 0 o f “ d o p e ” t h a t d a y. H e t h e n a d m i t t e d t h a t t h e y s p e n t ar o u n d $ 4 0 0 o n c r a c k c o c a i n e t h a td a y, including w hat the def

endant ha d purcha sed fr om Mr. Cross.

The de fenda nt testified that he had been convicted of felony forg ery , theft, and a g g ravated assault. He said that on May 27, 2004, he had be en in the F irst Avenue a rea . He sa id that he knew his brother would be there and that he did not have any money . He sa id he smoked with his brother

a ndMr . B a ug h th e c oc a ine the y ha d, bu t th e y

ran o ut o f m on e y . H e sa id h e we nt ho me be c a us e his wife had ca l l ed, and he took $150 dollars from his wife’ s jewelry box . He sa id he also had $100 from doing “odds-a nd-end w ork.” H e said he went to a house on F irst Avenue and sat on the porc h waiting to “score .” He said he met Mr. Cross a nd asked Mr . Cross how much money he wa nted for all the coc aine he had. He said that he told Mr. Cross he would g ive him $160 for it and t hat Mr. Cr os s a g re e d to sel l it fo r $16 0. He sa id h e ha d u se d c oc a ine sin c e 19 85 a nd ha d n e ve r s olddr

ug s. He sa id h e wa nte d to buy a larg e a mou nt of dr ug s in ord e r that he wo uld no t hav e to g o out the re st of the nig ht. He sa id he wa s g oin g ho me to ch e c k on his fa mil y a ndthe n w a s su pp os e d to me e t hi s br oth e r at a no the r hou se

. He sa id he wa s g oin g to smo ke the c oc a ine a nd wa s n ot g oin g to s e ll i t.

On cr oss-exam i n ation, the def endant a cknowledg ed the twe nty -four small bag s of cr ack

cocaine was the cocaine he boug ht from Mr. Cross. He acknow ledg ed he ha d possession of the cr ack

cocaine. He de nied appr oaching the ca r with the drug task forc e ag ents in it. He said the off icer s called him to the car and when he rea liz ed they wer e poli ce office rs, he r an. He then ac knowledg ed he took one or

two steps towards the c ar. H e denie d strug g ling with the police office rs when the y tried to handc uff him. He said that he, his br other, a nd Mr. B aug h “pitched in” for the c ocaine and that they wer e to meet at his brothe r’s friend’ s house. He said that he had $100 f rom “odds-a nd-end work” and $150 from his w ife’s jewelry box and that he paid $160 to Mr

. Cross f or the cocaine. He acknow ledg ed he ha d $92 when he was arre sted but could not explain wher e the money his brother and Mr. B aug h “pitched in” had g one.

We f ir st n ote that the de fe nd a nt’ s noti c e of app e a l sta te s tha t the do c ke t numb e r of the c a se be ing app e a le d is 16 34 7, wh ic h r e la te s to the c oc a ine po ss ess io n a ndre sis tin g arr e st c on vic tio ns

. Howeve r, the issue pre sented for revie w i nvolves only the s ufficie ncy of the e vidence of the c ocaine-6-

po sse ssi on c on vic tio ns . The iss ue do e s not r e la te to the de fe nd a nt’ s c on vic tio n f or re sis tin g arr e st. Th e re fo re , w e a ff

ir m th e jud g me nt f

or re sis tin g arr e st.

Th e de fe nd a nt co nte nd s tha t the e vid e nc e wa s insu ff ic ie nt to pr ov e the e le me nts of int e nt t o deliver or sell coca ine. The de fenda nt asserts he did not intend to d eli ver or sell the coc aine but obtained it for pe rsonal use. The defe ndant asserts tha t by interpre ting Te nnessee Code Annotated section 39-17- 419 to allow an infe renc e of intent to sell or deliver based on the amount of coc aine possessed without any

other c ir cums tance s relevant to the defe ndant’s mental state , the state’s burden of proving the intent element is eliminated. The defe ndant asserts the defendant did not have a “ cu t t i n g age n t , ” t h e d ef en d an td i d n o th av e al ar ge a m o u n to f c as h
, an d t h e r e wa s n o ta l ar ge amount of coc aine involved. The defe ndant asserts he prese nted four w itnesses who testified he was a drug addict. The defe ndant asserts testimoni al evidenc e fr om police o ff i ce rs t h at 4.4 g rams of

cra ck coc aine ha d a possible value of $225 to $400 is insufficient to pr o v e i n t en t bey ond a

rea sonable doubt.

The state a sserts the evide nce at the trial was suff icient to support the def

endant’ s convictions for possession with intent to sell and possession with intent to deliver one-hal f gra m o r m ore of

c oc a ine . T he state a sse rt s the de fe nd a nt a dmi tte d h e po sse sse d th e c oc a ine . T he state a lso a sse rt s the def endant’ s intent to deliver the coc aine may be i n fe rr ed fr o m the amount of coc aine he possessed, along with the ot her releva nt fac ts. The state asser ts the other r eleva nt fac ts supporting the infer ence that the def

endant possesse d cra ck coc aine with the intent to sell and deliver include: (1) the c ocaine was individually packa g ed and not a

lump sum, (2) the defe ndant did not posse ss any drug para pherna lia used to consume c rac k cocaine, (3) the defe ndant was a rre sted in a neig hborhood kn ow n f or hig h d ru g tr a ff

ic , an d (4) the de fe nd a nt ha d $92 in his po sse ssi on a t the tim e of his arr e st. The state c ontends the evide nce e stablished the def endant intende d to deliver th e co caine he possessed to his brother a nd Mr. B aug h.

Our standa rd o f review whe n the def endant que stions the sufficienc y of the e vidence on appea l i s “ w h e th e r , a f

te r v ie w in g th e e v id e n c e in th e li g h t mo s t f a v o r ab le to th e p r o s e c u tion, a ny

ratio na l trie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble d o u b t

. ” J ac k s o n v

. Vi rgi n i a, 4 4 3 U. S

. 3 0 7
, 3 1 9
, 9 9 S

. C t

. 2 7 8 1
, 2 7 8 9 (1 9 7 9 ). W e d o n o tre we i gh the evidenc e; rather, we presume that the j ury has re solved all conflicts in the testimony and dra wn all rea sonable infe renc es fr om the evidenc e in f avor of the state. See State v. Sheff ield, 676 S.W .2d 54 2
, 547 (Tenn. 1984) ; State v. Cabbag e, 571 S.W.2d 832, 835 (Tenn. 1978). Que stions about witness cre dibilit y

wer e resolved by the jury

. See State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997)

.

I t is a c ri min a l of

fe ns e fo r a

pe rs on kn ow ing ly

to “ [p]os se ss a

c on tr oll e d s ub sta nc e wi th intent to manufac ture, de liver or se ll suc h controlled substance.” See T.C.A. § 39-17- 417(a) (4). The one ele ment prese nt i n al m o s t all criminal off enses whic h is most often proven by circ umstantial evidenc e is that relating to the culpable mental s tate. See Ha ll v. St ate, 490 S.W.2d 495, 496 (Tenn. 1973). Other than an acc used stating his or her purpose, intent, or thinking at the re levant times, the trier of fac t is left to determine the mental state by making infere nces dr awn f rom the surrounding circ umstances f

ound by it to exist. See, e.g ., Poag v. State, 567 S.W .2d 775, 778 (Tenn. Crim. App.-7-

1978). Tenne ssee Code A nnotated sec tion 39-17-419 states in p art, “I t may be infe rre d from the amount of a c ontrolled substance or substance s possessed by an offender
, along with other re levant fac ts surrounding the ar

rest, that the c ontrolled substance or substance s wer e p o s s es sed with the
pu rp os e of

se lli ng or

oth e rw ise dis pe ns ing .” With re sp e c t to this in feren ce, ou r r e vie w i s o nly to consider w hether

“under the fac ts of the case , there is no rational way the trier [of f act] could make the conne ction permitted bythe infer ence ” bey ond a re asonable doubt. CountyCourt of Ulster C o u n t y v

. Al l en , 4 4 2 U. S

. 1 4 0
, 1 5 7
, 9 9 S

. C t

. 2 2 1 3
, 2 2 2 5 ( 1 9 7 9 ). I n o t h erwo rd s , ev en t h o u gh circ umstantial evidenc e is nee ded for one ele ment, the standar d for e vidence sufficie ncy rema ins the

same.

I n interpre ting Te nnessee Code Annotated se ction 39-17-419, this court has conclude d that the plain a nd or din ary la ng ua g e of the statut e “ pe rm its the jury to dr a w a n inf e re nc e of int e nt t o s e ll or deliver when the amount of the controlled substan ce an d other re levant fa cts surrounding the

arr est are con s i d er ed toge ther.” State v. J ohn Fitzge rald B elew, W2004-01456-CCA-R3-CD, Hende rson County , slip op. at 6 (Tenn. Crim. App. A pr. 18, 2005). Ma ny fac ts and circ umstances exis t from which a

jury may proper ly

draw an infe renc e that an a ccuse d intended to sell or deliver controlled substanc es. See State v. B rown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (manne r of
pa c ka g ing of

dr ug s a ndabs e nc e of

dr ug pa ra ph erna lia ma y su pp ort in fe re nc e of

po sse ssi on wi th intent to sell, rather tha n possession for per sonal use); State v. Matthew s, 805 S.W .2d 776, 782 (Tenn. Crim. App. 1990) (finding it proper fo r a jury to consider “ the amount and va lue of a controlled substanc e .

. . to inf er an intention to distribute”). This c ourt has also held that it is not improper for an o f

f ic e r to te s ti f y a s to th e d if

f e r e n t t r a it s o f d ru g u s e r s a n d d e a le r s

. Se e St a te v. Willi a m A ub re y

Tr ott e r, No . 0 1C0 1- 97 01 -C R- 00 01 9, Da vid so n Co un ty , slip op . 7 -8 (T e nn . Crim. App. Fe b. 24, 1998).

We do not nece ssarily

reje ct out of hand the defe ndant’s conte ntion that, standing a lone, the de fe nd a nt’ s p os se ssi on of 4. 4 g rams o f c oc a ine is i ns uf fi c ie nt to sup po rt

a n in fe re nc e of

a n in te nt t o sell and deliver . See, e.g.
, T u rn er v . United States, 396 U.S. 398, 423, 90 S. Ct . 642, 656 (1970) (stating that mere possession of 14.68 g rams of a mix ture c ontaining c ocaine and sug ar is “c onsistent with . . . possessing the c ocaine not for sale but exclusi vely for his per sonal use”) . Howeve r, in the l i g h tm o s tf

a v o r ab l e t o t h e s t a t e , t h e e v i d e n c e s h o w s t h a t : ( 1 ) t h e c o c a i n e w a s p a c k a g e d i n t w e n t yfour individual “$20 ba g s,” (2) Ag ent Geor g e testified dr ug s packa g ed in “$20 bag s” we re c onsistent with r eselling
, (3) Ag ent Geor g e also testified 4.4 g rams of c rac k cocaine was a substantial amount of coc aine a nd was considered “dea ler weig ht,” (4) Assistant Director Miller testified he ha d arr ested de a le rs , n ot u se rs , w ho ha d mu lti ple pa c ka g e s o f “ $2 0 b a g s, ” (5 ) D ir e c tor L a ne te sti fi e d 4 .4 g ra ms

was a larg e amount of cocaine for the Seventee nth J udicial District, and most addicts would attempt to buy a “$10 or

$20 rock,” (6) th e defenda nt had $92 when he was a rre sted, (7) the defe ndant’s sister testified she would be “very surprised” if the def endant ha d $92 beca

use he w as unemploy ed, (8) the total va lue of the c rac k cocaine in this case was $ 4 8 0
, an d (9 ) t he def endant ha d no drug
para pherna lia of the ty

pe used f or the c onsumption of crac k cocaine on his person.

We be lie ve the e vid e nc e is s uf fi c ie nt t o w arr a nt the jury ’s re je c tio n o f the de fe nd a nt’ s c la im that he possessed the cocaine for his own pe rsonal use. The jury chose to be lieve the testimony of-8-

the state’s w itnesses over that of t he def endant, whic h is its prerog ative. See State v. Pappa s, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1 9 8 7 ). W e conclude that the e vidence was suff icient for a rational juror to find bey ond a reasonable doubt that the defendant possessed the cocaine with the int e nt t o s e ll a ndde liv e r i t.

CO NC LU SION

B a se d o n the fo re g oin g a nd the re c or d as a wh ole , we a ff ir m the jud g me nts of

the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE