### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs F eb ru ar y 6, 200 7

STATE OF TENNESS EE v . SAVALAS O. McNEAL

Appeal f rom the Circ uit Court for Madison Cou nty No. 03-696 Donald H. Allen, Ju dge

No. W2005-01150-C CA-R 3-CD - F iled May 24, 2007

The de fenda

nt, Savalas O. McN eal, wa s co n v i cted by a Madison County

jury of possession of

coca ine with the intent to sell and deliver a nd rec eived a

ten-y ear senten ce to the Depa

rtment of Correc tion as a Rang e I I
, multipl e offender

. On appeal, t he defenda nt contends that the evidenc e wa s insufficient to support his conviction. We conclude that the evidenc e wa s sufficient, a nd we a ffirm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , P.J
., delivere d the opi nion of t he court, in which J OHN E VE R E TT W I L L I AMS and D. K EL L Y T HOMAS , J R ., J J ., joined.

Cha rl e s F . F le e t, B oli va

r, Te nn e sse e , f

or the a pp e lla nt, Sa va la s O . M c Ne a l.

Rob e rt E. Coo pe r, Jr., At tor

ne y Ge ne ra l and

Re po rt e r; J. Ro ss Dy e r, As sis tant A tto rn e y Ge ne ra l; J am e s G

. Wo o d a ll
, D is tr ic t A tt o r n e y G e n e r a l; a n d

Ro lf H a zl e h u r s t, A s s is ta

n t D is tr ic t A ttorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

This case arose from a nar cotics investig ation that resulted in the de fenda nt’s arr est and indictment f

or possession of coca ine with the intent to sell and possession with the intent to deliver, in violation of Tennessee Code Annotated se ction 3 9 -1 7 -417. At t he def endant’ s trial, Serg eant Matthew Ha

rdaw ay , of the Jackson Metro Na rcotics Unit, testified that on August 15, 2003, he and two other law enfor ceme nt office rs were patrolling Hurt Street i n J ackson in a rente d unmarke d van in an “at t em p t t o arr est drug deale rs.” He said that at ar ound 2:00 a.m., their vehic le was f lag g ed down by a woman, w hom he later identified as J eanine Gre g ory

. The office rs told Ms. Greg ory that they wer e looking for a “fifty ,” which Ser g eant Ha rdaw ay explained was a slangterm for fifty dollars

wo rt h o f c ra c k c oc a ine . M s. Gr e g or y tol d th e of

fi c e rs “ that she kn e w a g uy do wn the str e e t th a t so ld do pe ” a nd ins tr

uc te d the m to re tur

n in fif te e n minu te s. Se rg e a nt H a rd a wa y sa id t hat th e y le ft Ms.-2-

Gr e g or y a nd re tur ne d tw e nty

to t hir ty min ute s late r a

nd that Ms. Gr e g or

y dir e c te d the m to a

ho us e at 150 Hurt Stree t. He said that Ms. Gre g ory knocked on a window of the house and that a w oman late r i de nti fi e d a s A nit

ra B a te s e me rg e d f

ro m th e fr on t do or . Se rg e a nt H a rd a wa y , u po n M s. Gre g ory ’s direc tion, approac hed Ms. B ates on the f ront porch, a

nd Ms. Ba tes showed him a r ock of

cra ck coc aine that she was holding in her ha nd. After Ms. Ba tes showed Ser g eant Ha rdaw ay the drug s and dec lare d, “Tha t’s a fifty ,” Serg eant Ha rdaw ay identified himself as the police and deta ined Ms. Ba tes. Serg eant Ha

rdaw ay said he a sked Ms. Bates if any one else was inside the residenc e and
enter ed it. She told him no one else was inside but
, ac co rd ing to Ser g eant Ha rdaw ay , g ave permission for him to searc h the re sidence for other people. Ser g eant Ha

rdaw ay said the def

endant

wa s f ound lyingin b e d wi th a n inf

a nt in the on e -b e dr oo m re sid e nc e

. Of fi c e rs ob ta ine d Ms. B a te s’ signature on a

Consent to Search f

orm. Ms. Bates said she was the lease holder of the proper ty , and

a sea rch of the apa rtment was c onducted. Ser g eant Ha rdaw ay said an investig ator a

rrived w ith a

narc otics d o g , w h o a le rte d to a d r e s s e r dr a w e r th a t w a s le s s th a n e ig h t f e e t a w a y f

r o m th e bed on which the de fenda

nt was ly ing. Ser g eant Ha rdaw ay said no contra

band was found in the dra wer but $922 in cash wa s found. He sa id there w as no contra band found a

ny wher e else in the residenc e.

Serg eant Ha

rdaw ay testified that althoug h Ms. Bates s ai d she wa s the lease holder of the

a pa rtme nt, sh e sa id t

he de fe nd a nt, he r bo y fr ie nd
, a lso liv e d the re

. He a dmi tte d that Ms . G re g or y did

no t id e nti fy

the “ g uy ” sh e sa id c ou ld p ro vid e the m w ithc oc a ine . H e sa id t hat it wa s actu all y

Ms. Bates who handled the drug transac tion a nd that the only drug s found in or ar ound the re sidence was the cr ack c ocaine rock in Ms. B ates’ posse ssion. He said it appea red that the defendant was aslee p wh en they

found him in bed with the infant, who Ser g eant Ha rdaw ay estimated wa s two or three months old and w ho was later identified as the defe ndant’s and Ms. B ates’ child. He rea d into the

rec ord a w arr ant in which he ha d written that Ms

. Bates voluntarily stated t hat the cr ack a nd money belong ed to her

. He sa id that the money was found a

fewfee t from wher e the de fenda nt was found b u t th a t th e a tt e mp te d d r

u g s a le a c tu a ll y to o k p la c e in th e d o o r w a y o f th e h o me , n o t inside it. He said that althoug h the nar cotics dog
, which was trained to detec t drug smells, alerted to the mone y in the draw er, no te sts were done to detec t narc otics on the money

.

Br ian Eaton testified that he was f ormerly a spec ial ag ent fore nsic scient i s t wi t h the Te nn e sse e B ur e a

u o f I nv e sti g a tio n Cr ime L a

bo rator y . H e sa id h e a na ly

zed a n e vid e nc e sampl e obtained in the def

endant’ s case and conc luded that it was .4 g ram of c ocaine

.

J eanine Gre g ory

testified that when she came into c ontact with the nar cotics ag ents on the night of the def endant’ s arr est, she did not know they wer e under cover p o l i ce

. S he said that the of fi c e rs wa nte d to buy

c ra c k c oc a ine a nd

that sh e tol d th e m th a t sh e kn e w a pe rs on wh o c ou ld provide them with some but that s h e h ad t o first make sur e the pe rson was home . She instructed them to leave a

nd return a fter f

ifteen minutes, and when they did, she took them to the house wher e t h e y c o u l d b u y c r a c k

. S h e s a i d s h e a s k e d t h e o f f i c e r s t o c o m e i n s i d e t h e h o u s e b e c a u s e “ t h e l a d y” had an inf ant child and c ould not come outside to meet them. She said that whe n the offic ers we re on the porc h, she re alized they wer e police.-3-

Ms. Greg ory

testified that the person from whom she expected to buy drug s that night wa s the def endant and that she was surprised to se e Anitra Bates making the sale. She a cknowledg ed that she did not see the de fenda nt with any drug s or m oney on the nig ht of the def

endant’ s arr est and that it was Ms. Bates who delivered the drug s to the underc over a g ents. She said she did not see the defe ndant that nig ht until s he ente red the residenc e af ter Ms. B ates wa s arr ested.

Anitra B ates testified tha t she was the f ormer gir lfriend of the defendant and is the mother of his c hild. She said that on Aug ust 15, 2003, she and the de fenda nt had bee n living tog ether at 150 Hurt S tree t in J ackson for one and one- half months. She said that on that date, Ms. Gr eg ory knocked

on the wi nd owthat w a s n e a r w he re he r t hr e e -m on th o ld b a

by wa s sl e e pin g a nd wa

nte d to ge t a

“ fi ft y piece of cr ack” from Z eus, which Ms. B ates said was the de fenda nt’s street name. She said she wa s

a w a k e a n d t o l d M s

. G r e g o r y t o “ s t o p b e a t i n g o n t h e w i n d o w

. ” S h e s a i d t h e d e f e n d a nt h e a rd

Ms. Gre g ory ’s “holler ing” and told Ms. Bates wher e the cra ck was and to g ive it to Ms. Greg ory . She said she found the cra ck whe re the defe ndant told her it was, under a banister in the bedr oom. She sai d s h e was scar ed and f ollowed the def

endant’ s order s beca

use the de fenda

nt was abusive. She said that when she g ot to the door, she saw the office rs walking down the sidewa lk toward he r and knew they

wer e poli ce. She said she di d not run away but told the police that the drug s were hers

so the y wo uld ta ke he r t o ja il. She sa id t hat w he n s he g ot t o ja il, she to ld them “ wh a t r e a lly happene d.”

Ms. B a te s te sti fi e d tha t she tho ug ht bot h s he a nd the de fe nd a nt s ig ne d th e le a se on the ir ho me but that she solely paid rent. She acknow ledg ed that she was tried and convicted of possession of

c oc a ine wi th t

he int e nt t o s e ll, ste mmi ngfr om t he same inc ide nt f

or wh ic h th e de fe nd a nt w a s o n tr ia l, but she said she ha d not y et bee n sentenc ed. She denie d that she wa s testify ing a g ainst the defe ndant in hope of obtaining a lenient se ntence . She said the District Attorney ’s office did not promise her
any thing in return for her testimony

. She admitted that she was imprisoned in 2001 and was c harg ed with ag g ravated per

jury in 1998. She said she pl eade d g uilty to ag g ravated per

jury and re ceive d a
sentenc e of thre e y ear s. She admitted to ly ing under oath previously but said that she was not ly ing under oath at the def

endant’ s trial and that she ha d no rea son to lie at the defe ndant’s trial.

Ms. Ba tes admitted that she hande d cra ck coc aine to a police office r, eve n afte r re alizing he

was a p o l i ce office r. She said she a ctually handed him two roc ks of cr ack c ocaine . She said the d ef en d an twa s n o tas l ee p wh en t h e of fi ce rs ca m e to m ee t h er b ec au s e he co u l d n o t h av e s l ep tt h ro u gh Ms. Greg ory ’s beating on the window. She acknow ledg ed that she initially told Serg eant Ha

rdaw ay that th e dr ug s and mon e y be lon g e d to he r b ut s a id t hat w he n s he g ot t o ja il, sh e tol d h im the “ wh ole
sto ry” a bo ut t he de fe nd a nt b e a tin g he r that nig ht. She sa id sh e wa nte d to be ta ke n to ja il s o s he c ou ld
g et awa y from the de fenda

nt.

The state r eca lled Serg eant Ha rdaw ay , wh o testified that when he first saw Ms. B ates on Au g us t 15 , 2 00 3, sh e a

pp e a re d to have tis su e in h e r n os tr il a nd a sw oll e n lip. He sa id s he tol d h im at the sce ne of the arr est that she wa nted to ta lk to him late r but did not want the def endant to find

ou t w ha t sh e wa s g oin g to tel l hi m. Se rg e a nt H a rd a wa y sa id t he de fe nd a nt w a s n ot c ha rg e d w ith domestic assault, extortion, or inti midation.-4-

Offic er Ma

rk Smith of the J ackson Police Depa rtment testified that he wa s a ca nine handler assig ned to the Metro N arc otics Unit. He s ai d h i s d o g was c ertified to de tect mar ijuana, coc aine, ha sh , c ra c k c oc a ine , h e ro in, a nd me tha mph e ta min e . H e sa id t

hat w he n the do g de te c te d on e of the se drug s, she bit and scra

tched a nd attempted to re trieve the source of the odor. He said the dog w as not cer tified to detec t money . He sa id that on Aug ust 15, 2003, he was called to sear ch the residence at 150 Hurt Stree t with a canine. He said that he searche d the entire home and that the dogonly had one alert, which was on a dresser drawe r in the bedr oom. He said off icer s took out the drawe r and discovered m o n ey inside it but no drugs. He believed that the dog detec ted the re sidual odor of

narc otics in the drawe r. He said he a nd the dog did not find narcotics a ny wher e in the house. He
was not aw are of any

phy sical tests that wer e perf ormed to detect the pr esenc e of na rcotics on the
money rec overe d from the dr awe r.
A jury found the de fenda

nt guilty of both possession of coc aine with the i n t en t t o sell and possession with the intent to de liver. The trial court merg ed the c ounts into a single Class C felony

c on vic tio n a

nd se nte nc e d th e de fe nd a nt t o te n y e a rs a t th ir ty -f ive pe rc e nt a s a

Rang e I I , mu lti ple of fe nd e r. On

a pp e a l, t he de fe nd a nt c on te nd s th a t th e e videnc e wa s n ot s uf fi c ie nt t o c on vic t hi m. The state argues t hat t he appeal shoul d be dis missed beca use i t was unti mely and that the evidence was suff icient.

As for the state’s timeliness contentions, the re cord r efle cts that the judg ment was filed on Marc h 10, 2005. The defe ndant filed his “Motion for Judgment of A cquittal or in the Alternative New T rial” on A

pril 20, 2005. The trial c ourt denied this motion in an order dated April 26, 2005, and th e d e f

e n d a n t’ s n o ti c e o f a

p p e a l to th is c o u rt f

o ll o w e d o n M a y 1 8
, 2 0 0 5

. T e n n e s s e e Ru le of Appellate Proc edure 4 provides that a notice of appe al is to be filed thi rt y day s after

entry of judgme nt or, if a c erta in post-trial motion i s fi l ed
, t h irty day s after

entry of the orde r deny

ing the motion. The Tennessee R u l es o f Criminal Procedure mandate that a motion for judg ment of acquitta l or for

a new trial is to be filed within thirty day s of the date of entry of the orde r of
sentenc e. Tenn. R. Crim. P. 29( e), 33(b). Our supreme court has held that the thirty -day limit for filing a motion for a new tria l is mandatory and that a tr ial court doe s not have jurisdiction to hear

a nd de te rm ine the me ri ts o f a moti on fo r ne w tri a l if it is fil e d outs ide the thi rt y -d a y pe ri od . St a te v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). Thus, when a defe ndant has not timely

filed a motion for a new tria l, he has not pre serve d those issues for appea l which ar e re quired to be r aised in a motion for a new

trial. I d. I n the prese nt c ase, the def endant f iled his moti on for a cquittal or a ne w trial over thirty

day s after the entry of j udg ment but filed his notice of a ppeal within thirty

day s of the denial of

the motion. Although the de fenda nt’s motion for a new

trial was not timely filed, he raises on a p p ea l o n l y t h e issue of the sufficie ncy of the e vidence , which is not require d to be
prese rved in a

motion for new tria l

. S ee State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987). Still , we a g ree with the state that beca use the defe ndant’s motion wa s filed late, he did not

succe ssfully toll the filing of his notice of appea l. Howeve r, the timely filing of a notice of appe al is n ot j ur isd ic tio na l, a

nd we e le c t in

thi s c a se to wa ive the re qu ir e me nt o f t ime ly fi lin g in t he int e re st of justice. See T .R.A.P. 4(a).-5-

Re g a rd ingthe de fe nd a nt’ s c on te nti on tha t th e e vid e nc e is n ot s uf fi c ie nt t o sup port

his

c on vic tio n, our s tand a rd

of re vie w on a

pp e a l is “ wh e the r, a ft e r v ie wi ng the e vid e nc e in t he lig ht m os t favor able to the pr osecution, any rational trier

of fa ct could have found the e ssential elements of the crime be y ond a re asonable doubt.” J ackson v. V irg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789 (1 97 9) . We do no t r e we ig h th e e vid e nc e ; r a the r, we pr e su me that the jur y ha s re so lve d a ll c on fl ic ts in the testimony

and dra wn all rea sonable infe renc es fr om the evidenc e in favor of the sta te. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabba g e, 571 S.W.2d 832, 835 (Tenn. 1978) . Questions reg arding witness cre dibilit y , conflict s i n t estimony , and the we ight a nd value to be g iven t o evidenc e were resolved by the j ury

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

.

The de fenda

nt was convicted of violating the pr ovision of our criminal code which make s it an offe nse for

a per son knowing ly

to“[p] ossess a contr olled substance w ith intent t o . . . deliver or sell such c ontrolled substance .” T.C.A. § 3 9 -1 7 -4 1 7 (a)(4). We note that “ possession” ca n be
actua l or construc tive, and construc tive possession can be established by proof that “the pe rson has ‘the powe r and intention at a g iven time to exercise dominion and control ove r ... [the drug s] either direc tly or throug h others.’ In other wor ds, ‘construc tive possession is the abili ty to reduc e an obje ct to actual possession.’” State v. Ross, 49 S .W.3d 833, 845-46 (Tenn. 2001) ( quoti n g S t ate v. Transou, 928 S.W .2d 949, 955-56 (Tenn. Crim. App. 1996)). Fur thermore
, “althoug h a def endant’ s

mere prese nce at a plac e whe re c ontrolled substance s are found will not support an infer ence of
po sse ssi on , a pe rs on in po sse ssi on of the pr e mis e s wh e re c on tr oll e d su bs tanc e s are fo un d ma

y a lso be pre sumed to possess the controlled substanc es themselves[.]” I d. at 846 (c itations omi tted).

I n the light most favor able to the state, the evidenc e shows that Ms. G reg ory told undercove r

na r c o t i c s a g e n t s t h a ts h e kn e w a m a n w h o c o u l d

s e l l t h e ma

“ f i f t y ” o f c r a c k c o c a i n e a n d

t h a tM s. Gr e g or y we nt t o th e ho us e wh e re the de fe nd a nt a nd Ms. B a te s li ve d a

nd re qu e ste d th e de fe nd a nt t o sell cra ck cocaine to the off icer s. Ms. Bate s said that, upon Ms. Greg ory ’s re quest, the def endant told her whe re dr

ug s could be found a

nd instructed her

to sell t h em to Ms. Greg ory . Ms. Ba tes

arr ived at the door

of the house w ith wh at wa s l at er d etermined to be cra ck coc aine. A na rcotics canine detec ted nar cotics re sidue in a draw er ne ar w here the def endant wa s ly ing a

nd wher e $922 in cash wa s found.

The defe ndant ar g ues that the only evidenc e linking him to the cr ime was the te stimony of Ms. B a te s, a

c on vic te d p e rj ur e r. Ho we ve r, the jur y a pp a re ntl y c ho se to a c c re dit

the te sti mony

of Ms. B a te s, de sp ite e vid e nc e of he r pr ior c on vic tio n fo r pe rj ur y , a nd we do no t se c on d- g ue ss c re dib ili ty deter minations by the j ury . Fur thermore , Ms. Ba tes’ testimony was c orrobor ated by

other e vidence
, including the testimony

of Ms. Gre g ory

that she expected the defe ndant t o s el l the cra ck and w as surprised to see Ms. Ba tes come to the door , the testimony of S erg eant Harda way that Ms. Bates had ph y sic a l in

jur ie s and a

pp e a re d to be wo rr ie d a

bo ut the de fe nd a nt fi nd ing ou t that sh e wa s ta lki ng to office rs, and the r ecove ry

of a la rg e amount of cash and detec tion of narcotics i n the dre sser dra wer only a few fe et from the de fenda nt. Ms. Bate s’ testimony combined with this circumstantial evidenc e is suf

ficient to e stablish that the defe ndant had constructive possession of the coc aine a nd-6-

int e nd e d to se ll it. We co nc lud e the e vid e nc e is suf fi c ie nt to es ta

bli sh the e le me nts of

the of fe ns e for whic h the def

endant wa s convicted.

B a se d on 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 nt of the tr ia l c ourt

.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE