### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE April 22, 2003 Session STATE OF TENNESSEE v. BARRY INMAN Direct Appeal from the Circuit Court for Williamson County No. II-1100-344 Timothy L. Easter, Judge

No. M2002-02463-CCA-R3-CD - F iled October 17, 2003

Th e appellant, Barry

Inman, was convicted by a jury in the Williamson County Circu it Court o f possession of over .5 grams of cocaine with the intent to sell or deliver, possession of Alprazolam withthe intent to sell or deliver, possession of marijuana, possession of drug paraphernalia, a nd speed ing. A d ditionally, the appellant pled g uilty to driving on a re

voked license. The trial court se ntenced the appellant to a total effective sentence of nine years inc arceration in the Tennessee Department

of Correction. On appea

l, the appellant contends that the trial court should have gra nted his motion for judgmen ts of a cquittal a nd that the

evidenc e adduc ed at tria l was insuf

ficient t o sustain his convicti ons. Upon r

eview of the rec ord and th

e partie s’ brief

s, we affi rm the judg

ments of the trial court. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Ci rcuit Court are A ffirmed.
N ORMA M C G EE O GLE , J., de livered t he opinion of the court, in which J OE G. R ILEY and J AMES C URWOOD W ITT , J R ., JJ., joined. Nathaniel H. Koenig, Nashville, Tennessee , for the appellant, Barry Inman. Paul G. Summers, Attorney Gene ral and Repor

ter; Chris tine M. Lapps, Ass istant Atto rney Genera l; Ronald L. Davis, District Attorney General; Mary

Katharine White, A ssist ant District Attorney General, for the appellee, State of Te nnessee. OPINION I. Fact ual Backgro

und The appellant was indicted by a Williamson County Grand Jury on char

ges of possession of over .5 grams of

cocaine with the intent to sell or deliver, possession of Alprazolam with the intent to sell or deliver, possession of dextropropoxyphene with the intent to sell or deliver, possession of marijuana, possession of drug paraphernalia, driving on a revok ed lic ence, a nd spe eding. On May 22 and 23, 2000, a trial was held on these charg es.1 Spe cifically, there were 5 1 blu e pills an d 20 white p ills, both o f which tes ted p ositive a s Alpr azo lam. -2- At trial, Officer Kevin L

ovell, of the Williamson County Sheriff’s Departm ent, testified that on June 10, 2000, he was traveling north on Temple Road toward Sn eed Road and was “running radar.” Office

r Lov ell noticed the appe

llant tra veling a t a high r ate of sp eed south

on Temple Road in an area near a g olf course. Using r adar, O fficer

Love ll clocke d the appe

llant driv ing fif ty miles per hour in an area where the speed limit was thirty miles per hour. Officer Love

ll activated his blue lights and the appellant stopped his vehicle on the side of the road. The offic er appr oached the drive r’s side o f the veh

icleand asked the appellant if he knew why he had been stoppe d. The ap pellant ma

intained th at he did not . Officer Love ll advised the appellant that he had been

speeding and aske d for his driver’s license and vehicle registration. The appellant informed the offic er that he was dr iving a f riend’s vehicle . He was u nable to p roduce h is driver ’s license, explaining that he had left his wallet at home. Officer Lovell then asked the appellant for his name, social security number, a nd date of birth. Upon receiving the information, Officer Love ll returned to his police

cruiser to deter mine the a

ppellant ’s drive

r’s lice nse numbe

r in order t o iss ue him a cita tion for sp eedin g. An information check revealed that the appellant’s driver’s license had been revoked. Upon being conf

r onted by Offic er Lovell, the appellant admitted that his license ha d been revoked. Explaining that he c ould not allow the ap pellant to drive the vehicle , Office

r Lov ell arrest

ed the appellant, placed him in handcuffs, and ordered him to sit in the back of the police cruiser.
Becau se the appellant had been the sole occupant of the ve hicle, Officer Lovell requested that police dispatch

send a tow

truck to mo ve the ve

hicle of f of the public thoroughfare. Office r Lov ell stated t hat acco rding to police policy , he was required to prepare a “ tow sheet,” or a record of the inven tory that was in the ve hicle prior to to wing. Officer Lovell began the inve

ntory on the driver’s side of the vehicle. After discovering the appellant’s cellular telephone, the office r place d the tele phone in th

e back se at of the

cruiser with the appellant. The officer

then returned to the vehicle to continue the inventory on the passenger side of the vehicle. Officer Love ll noticed that the glove compartment of the vehicle was a jar and a black camera bag was “jammed” inside, a portion of which protruded from the glove compartment. After some difficulty, Offic er Lovell opened the glove compartment and removed the camera bag. Office

r Love ll looked inside the compartments of the camera bag to determine the type of

camera to record on the tow sheet. Inside the compar tments of the camera b ag, O fficer Love ll discove red a sma ll metal spoon, n inet y-four small plastic bag s, and electronic scales. Both the scales a nd the spoon were covered with white powder residue. Additionally, the camera bag contained

a substance later determinedby t

he Tenne ssee Bu

reau of Inve stigatio n crime la

borator y to be 4.9 g rams of a white powder which did not

contain a controlled substance, 9.1 grams of powder c ocaine, 2.1 grams of marijuana, and seventy- one pills of Alprazola

m, als o known as X anax. 1 Officer Love ll also found a pill bottle

in the con sole betw een the d river’sseat and

the fron t passeng er seat . Ins ide the pi ll bottle were four pills which later tested positive for dextropro

poxyp hene, a lso known as D arvoce

t.-3-

Based upon his experience as a police office r, Offic er L ovellknew that 9.1 grams of cocaine was an amount greater than that for pe rsonal use. He explained that “personal use is a sma ll amount. They use what they ha

ve and then they

have t o go get some more.” He also denied that a “ junkie” could “freebase” 9.1 gr

ams of cocaine in one night. Officer Lovell found no other contraba nd in the vehicle. Officer L ovell explained t hat he initial lycharged t

he appellant with p ossession of the dr ugs bec ause the

appella nt was the

sole occu pant of the vehicle. He stated that the camera ba g looked as if it had been hurriedly shove d inside the glove compartment; therefore, Of ficer Lovell believed tha

t the appellant knew of

the bag and was aware of its contents. Officer Love ll t estified

th at a video camera in his police cruiser recorded the stop and the search. Moreover, a recording de vice in the cruiser simultaneously recorded t

he sou nds in the cruiser. After the stop, Officer L ovell watched the tape and noticed that while he was c hecking the appellant’s name and social security number, the appellant repeatedly leaned towards the passenger seat of his vehicle and made a “pushing motion.” Officer Love ll stated that the appellant appeared “normal ” throughout the incident. However, when revie wing the tape, Officer

Lovell noticed that the appellant cursed twice when Office r Lovell bega

n examining the area

near the front passenger seat. He observed that it was not unusual for a person to curse when being ar rested. Office

r Lov ell also stated that the appellant did not appear to be in a hurry during the stop. The tape also revealed that the appellant made a telephone call while he was handcuf fed in the back of the patrol car. The appellant c alled a friend who was waiting at the golf course and asked the friend to drive the vehicle to the clubhouse so it would not be towed. The individual arrived at the scene, but Officer L ovell instructed the individual to leave because the drugs ha d been discovered. Officer Love ll admitted

that he di d not fing erprint a ny items foun d in the vehicle. He stated that he was not trained in fingerprinting and c ould not have performed that function himself. He was notaware of any one else fingerprinting the

vehicle or the ite ms discove

red ther ein. Off icer L ovell also did no t re member f inding a ny c ash on the

appella nt’s per son at the

time of the

arrest. Ad di ti on al ly, Office

r Lov ell stated that he believed the appellant was wearing sandals at the time of the arrest. He did not

remembe r finding any golf sho es in the v ehicle; how ever, th e appell ant did have soc ks in one of

the pocke

ts of his pa

nts. Officer Love ll conce ded that h

e did not p ersonally witness the a ppellant open the glove compartment

or shove the camera bag into the glove compartment. He also acknowledge d that the appellant had ample

time to ca

refully place the camer

a bag in the glov e compar

tment and lock it. However, Officer Love

ll noted that the a

ppellant would have attracted his attention if he had taken the time to carefully

place the camera bag

in the glove compartment.2 Th e trial pro ceed ings in the i nstan t case were recor ded on CD -Rom instead of being transcri bed by a court

reporter. Approximatel y ten minut es of Schn eider’ s tes timony was not recorded because the recor ding sys tem wa s not function ing pro perly. T he pa rties pro vided no o ther rec ord as to the conte nt of this m issing testim ony. -4- Andrew Schneide

r, the ow ner of th

e vehicl e the appellant

was driving, also

testifie d at trial

. 2 Schneider stated that the appellant called him on the da y in question and asked him to play g olf. Schneider decl ined the i nvitation. The appe llant then asked Sc hneider

to drive h

im to the g olf course, but Schneider did not have time to do so. However, Schneider offer ed to loan the appellant a vehicle to drive to

the golf course. Accord

ingly , the appe

llant wal ked, ca rry ing his g olf

clubs, to Schneider’s house. Schneider gave the appella nt the key s to the ve

hicle an d the appe

llant, in a hurry to make his tee time, put his golf clubs in the trunk of the vehicle and “took off.” Schneider stated that he had never seen the black camera bag that Of ficer Lovell discovered in th e v eh ic le . S pe ci fi ca ll y, Schneider had never seen the appellant in possession of the c amera bag. However, Schneider admitted that he would not have seen the camera bag if it had been in one of the compartments of the appellant’s golf bag

. Schneider also noted that on other occasions, three or four othe r individu als had driven the vehicle that he loaned the appellant. Schneider stated that he did not keep the vehicle locked at his home. Following the conclusion of the State’s proof, the appellant moved for judgments of acquittal on all count s ex cept the driving on revoked license cha rge. The trial court denied the appe llant’s motion.The appellant testified in his own defense and denied his guilt of all offenses except

driving on a revoked license. The appellantstated that he was forty -six years old and owned his own wallpaper hangin g busine ss. His dri ver’s lic ense had been revoked several y ears earlier because of a conviction for driving under the influence ( DUI). The appella

nt testified that on June

10, 2000, h

e was sc heduled t

o play golf wit h two frie nds, John Baker and Todd Dean, at the Te mple Hills Club. Howev e r, Baker cancelled at 2:30 p.m., shortly before the round

was to be gin at 3: 01 p.m. The appellant then began searching for a third person to play. Accor

dingly, the a

ppellant called Schneider and in vited him to play. Schneider informedthe appellant that he did not have time to play golf or to drive th

e appell ant to the

golf course, but he offered to loan the appellant a ve hicle to drive to the golf course. The appella

nt testified th at he live d only three bl ocks fro m Schneide r. He wa

lked to Schneider’s house, c arry

ing his golf clubs and a pill bottle containing four Darvoc et pills, which had been prescribed for

him. The appe

llant stat ed that he was wea ring loa fers an d had his so cks in his pockets. Upon arriving at Schneider’s house, the appe llanthad a blis ter on his heel, so he tosse d his shoes into the floor board of the fron t passeng er seat

. Schneider gave the appellant the key s to the veh icleand the appellant put his golf clubs in the trunk of the vehicle. The a ppellant got into t

h e driver’s seat and placed the Darvocet, which w ere in an unmarked pill bottle, in the console of the-5-

vehicle. The appellant then left for the golf course. The appellant stated that

the drive to the go lf course usually took appr

oximately fifteen minutes. The appellant claimed that he was very familiar with the speed limi t on the ro ad to Temp le Hills and that

he would not speed on that road because he fre quently saw police

stop vehicles in that area f or speeding. Additionally , the appellant knew he was committing a crime by driving on a revoked license and did not want to be stopped by police. Neverth eless, the appellant

stated that Officer Love

ll stopped him and informed him that he was speeding. When Officer Lovell returned to his cruiser, the a ppellant called Dean

and aske d him to postpone their tee time, thinking he would receive only a citation for his violations. However , upon being arrested

and placed into the back of the police cruiser, the appellant again called Dean to inform him that the appellant would b e una ble to play and to ask De an if he would move Schneider’s vehicle so that it would not be towed. The appellant asserted that he had never seen the black camer a bag before

it was discovered by Officer Love

ll. He stated that he had “trouble believing” that he w ould not have noticed the camera bag sticking out of the glove compa rtment, but he did not dispute Officer Lovell’stestimony on this issue. The appellant testified that he woul d not have “set foo t” in the v ehicle, much less driven it, if he had been aware that there were drugs in the vehicle. The appellant admitted that he cursed while sitting in the back of the cruiser, but he explained that he did so because he was “steamed”over missing his op portunity to play golf and being arrested. The appellant maintained that while Officer L ovell was check

ing his inf

ormation, he repe atedly leaned ove r towards the passenger side of the vehicle in orde r to retrieve his shoes, not to shove anything in the g

love compartment. At the conclusion of the appellant’s testimony , the appellant again m oved for judgmen ts of ac quittal and the tr

ial cour t again denied th

e motion. T

he jury found the

appella nt g ui lt y o f possession of over

.5 grams of cocaine with the intent to sell or deliver, possession of Alprazolam withthe inten

t to sell or

deliv er, posse ss ion of marijuana, possession of drug parapher nalia, and speeding . The app ellant pled guilty to driving on a revoked license. The jury found the a ppellant not guilty of possession of dextropropoxy phene with the intent to sell or deliver. After a sentencing hearing, the trial court sentenced the appellant to nine years inc arceration for the possession of

cocaine conviction; three y ears incarceration for the possession of Alpr azolam conviction; eleven mon ths and twen ty-nine day s for each of the convictions for possession of marijuana and drug paraphe rnalia; s ix months for the driving on a revoked license conviction; and a $50 fine o n the speeding co nvictio n. The tri a l court further ordered that all of the appellant’ s sentences be served concurre ntly for a total eff

ective sentence of nine y

ears incarceration. On appeal, the appellant raises the following issues for our review: (1) whether the trial court erred in denying

the appellant’s motion for judgments of acquittal at the close of the State’s case and,-6-

again, at the co nclu sion of the trial; and (2) whether the evidence a dduced at trial supported the jury’s verdicts. II. Analysis Ini ti al ly, we note th at this cour t has observed that “[t]he standard by which the trial court determines a motion fo

r judgme nt of acq uit tal at the end of

all the pr oof is, in e ssence, the same standardwhich applies on appeal in determiningthe sufficiency of the evidence after a conviction.” Statev. Thompson , 88 S.W.3d 611, 614-15 (Tenn. Crim. App. 2000). Moreover, “[a] motion for a judgment of acquittal made at the conclusion of the proof by the state is waived when

the defendant elects to present evidence on his own behalf.” State v. B all , 973 S.W.2d 288, 292 (Tenn. Crim. App. 1998); see also

Tenn. R. Cr

im. P. 29(a

). Acco rdingly , we will a

ddress t he appellant’s c omplaints as a challenge to the sufficienc y of the evidenc e. When an accused challenges the suff iciency of the

evidence, the standard is whether, after reviewing the evide

nce in the light most

favora ble to the prosecution, any rational trier

of fact could have found the essential elements of the crime bey ond a reasonable doubt. See Jackson v. Virgini a , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). In its review of th e evidence, an appellate court must afford the State “the strongest legitimate view of the evidence as well as all re asonab le and legitima te inferences that may

be drawn therefrom.” Statev. Tuggle , 639 S.W.2d 913, 914 (Tenn. 1982). Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the evidence, are re solved by the trier of fact , not this court. See State v. Mo

rris , 24 S.W.3d 788, 795 (Tenn. 2000). Moreover, we no te th at a g ui lt y verdict can be based upon direct evidence, circumstantial evidence, or a combination of direct and circumstantial evidence

. See S tate v. Pe nderg rass , 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Furthermore, while a g uilty verdict

may result from purely circumst antial ev idence, in order to sustain the conviction the facts and circumstances of the offense “must be so strong and cogent as to exclude every

other reasona ble hy pothesis s ave the g

uilt of the [appe llant], an d that beyond a re asonable doubt.” State v. Crawford , 470 S.W.2d 610, 612 (Tenn. 1971). The appella

nt contes ts the suff

iciency of the ev idence a s to his dr ug re la te d c on vi ct io ns on ly. In order to sustain the appellant’s two felony convictions, the State was required to pr ove that the appellant knowingly

possessed a controlled substance with the intent to sell or deliver. See Tenn. Code Ann. § 39-14-417(a)(4) (1997). Specifically , on count one the State accused the appellant of possessing over .5 grams of cocaine, a nd on count three the State accused the appellant of possessing Alprazolam. As to the misdemeanor convictions, on count four the State needed to prove that the appellant possessed marijuana. See Tenn. Code Ann. § 39-17-418(a) (1997). On count five, it was necessary for the State to prove that the appellant possessed drug para phernalia, which

is define d in part as something used to “process, prepare , test, analyze, pack, repack, store, contain, [or] conce al” a controlled substance. See Tenn. Code Ann. § 39-17-425(a)(1) (1997).-7-

Posses s ion of contraband, such as drugs, ca n be either actual or constructive. See State v. Transou , 928 S.W.2d 949, 9 55 (Tenn . Crim. App. 1996). As this court explained in State v. Cooper , 736 S.W.2d 12 5, 129 (Te nn. Crim. A

pp. 1987) (citatio ns omitted) : Before a person can be

found to c onstruct

ively possess a drug , it must appear that the person has “the pow er and in tention a t a give n time to exercise dominion and control over . . . [the drugs] either directly or th roug h others.” In other words, “ constructive possession is the ability to reduce an

object to actual possession.” The mere presence of a person in an area where dr ugs are discovered is not, alone, sufficient to su pport a find ing tha t the per son posses sed the dr ugs. Likewise, mere association with a person who does in fact control the drugs or property w

here the drugs are disco ve red is insufficien t to support a finding that the p erson pos sessed th e drug s. First, we note that the appellant correctly concedes that

“the State has unquestionably pr oved the exis tence o f the d rugs and paraphernalia for which the a ppellant was convicted.” Likewise, the Stateestablished that the ninety-f our individual plastic bags, electronic scales, and the spoon which were discovered with the drugs were drug paraphernalia. According ly, we will address the heart of the appe llant’s c omplaints, namely whether the appe llant posse ssed the c ontested items.
In the instan

t c ase, the appellant was in control of the vehicle when the drugs and paraphe rnalia were discovered. This court has noted that “[k]nowledge may be inferred from control over the vehic le in which the contraband is secreted.” State v. Brown , 915 S.W.2d 3 , 7 (Tenn . Crim. App. 1995 ). Moreover, such control, coupled with other circumstance s, may be an indica tor of possession of the contraband. Id. ; see also State v. Shaw , 37 S.W.3d 900, 903 (Tenn. 2001). Officer Love ll noted that the videotape of the stop reflected that, when he was checking the appellant’s information, the appellant repeatedly lean ed to wards the front passenger side of the vehicle and “shoved” something in the area of the glove c ompartment. The appellant also began cursing when the officer began his inventory of the passenger side

of the ve hicle. Officer Lovell stated that the camera bag appeared to have

been hurriedly

“jammed” into the gloveco mp ar tm en t. Ad di ti on al ly, Schneider, the owner of the vehicle, denied owners hip of the con traband . We concl ude that a reasona ble j uror cou ld have found that the foregoing f acts demonstrated the appellant’s knowing possession of the co caine, A lprazolam , marijuana, and drug paraphernalia, which items we re located in the camera bag. Next, we must further

consider whether

the State established that the appellant possessed the cocaine and Alpr

azolam with

the inten t to sell or deliver. Tennessee Code Annotated section 39-17- 419 (1997) provide s that “[i ]t may be inferre d from the amount of a controlled substance or substances possessed by an off ender, along with other relevant fa cts surrounding the arrest, that the controlled substance or substances were posses sed with t he purpo se of selling or o therwise dispensing.” The appe

llant posse sse d 9.1 grams of cocaine, w hich amount Officer Love ll maintained was greater than one w oul d possess for personal use. The appellant also possessed seventy -one Alprazolam pills.-8-

Officer Lovell explained that the electronic scale s and the spoon which we re disco vered in the vehicle

could be used to measure controlled substances for individual sale and both we re covered in a white powder residue. Additionally, the officer discovered

ninety-four small plastic bag s which could be used to package individual items, such as drugs, for sale. Thu s, we conclude tha t the State sufficiently prove d that

the appellant

possesse d the coc aine and Alprazola

m with the in

tent to sell or deliver. See State v. Larenzo De shawn Harris , No. W2001 -026 26-CC A-R3 -CD, 2002 W L 31259491, at *5 (Tenn. Crim. App. at Jackson, Aug. 30, 2002), perm. to a ppeal denied , (Tenn. 2002); S tate v. Cla

rence Boling , No. E2000-01985-CCA-R3-CD, 2001 WL 839365, at *3 (Tenn. Crim. App. at Knoxville, July 25, 2001). III. Conclusion Based upon the foregoing , we affirm the judgments of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE