# FILED March 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON DECEMB ER SESSION, 1998
STATE OF TENNESSEE, ) C.C.A.NO. 02C01-9803-CC-00071 ) Appellee, ) ) TIPTON COUNTY V. ) ) JOSE PH LE ROY S ULLIVAN ) HON.JOSEPH H.WALKER,JUDGE and VI CTORIA ALICIA TERA N, ) ) Appellants. ) (POSSE SSION OF CO CAINE)

FOR THE APPELLANTS : FOR THE APPELLEE : MELANI E E. TAYLOR JOHN KNOX WALKUP 50 North Front State., Ste. 780 Attorney General& Reporter Memphis, TN 38103 ELIZABE TH T. RY AN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenu e North Nashvill e, TN 37243 ELIZABETH T . RICE District Attorn ey Ge neral JAME S WAL TER FREE LAND , JR. Assistant Distri ct Attorney General 302 M arket Stre et Somervill e, TN 38068

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Defendants, Jos eph Leroy Sull ivan and Victoria Ali cia Teran, appeal as of rig ht t heir

conv ict ionsfol lowi ng a j ury t ria l i n theTipton Coun ty Ci rcui t Co urt
. Sullivan was fo und g uilt y of po ssession wit h intent t o deliver

.5 grams or more of cocaine, possession of drug paraphernal ia, and possessi on of a prohi bited weapon. Teran was convicted of possession with intent to deli ver .5 gra ms or more of cocaine and possession of drug paraphernalia. The jury fi ned each Defendant $25, 000.00 forthe posse ssion wi th int ent to del iver more t han .5 grams of cocai ne and $2,500.00 for possessi on of drug paraphernalia. Sullivan was fined an additional $3,000.00 for the conviction of po ssession of a prohibited wea pon. The trial court subs eque ntly senten ced Su llivan as Ra nge I Sta ndard O ffender to eight (8) years and six (6) months for the poss ession with intent to deliver, eleven (11) months, twenty-ni ne (29) days for the possessi on of drug paraphernalia, a nd one (1) year for the possessi on of the prohibited weapon. Teran was senten ced as a Range I Standard Offender to eight (8)years for the p ossession with intent to del iver and eleven (11) months, t

wenty-nin e (29) days for t he possession of drug paraphernali a. Teran was gra nted su spens ion of her s entenc e aft er servi ng six (6)months. For each Defendant, al l sentences wer e ordered to run concur re ntly. In this appe al, Defen dants argue that the evidence was i nsuffic ient to s upport any of the convictions. After a car eful rev iew of the r

ecord, we affirm the judgmentof the trial court.

The facts p resen ted at tria l revea l that on March 7, 1997, of ficers f rom the Tipton County Sherif f’s depart ment, along wi th D ete ctive Tarwater of the Shel by-3-

Coun ty Sher iff’s Department, obtained a search war rant for the reside nce of Joseph Leroy Sulliv

an. Upon enteri ng Sulliv an’s mobile home, t he officers encountered Teran comin g from th e back bedroo m. After she had been secured, Sergeant Dan Jones continued t he search of t he house for bot h drugs and Sullivan. Sergeant J ones went

int o th e mas ter

bedr oom wh erehe n oti ced severa l gu ns withi n ar ms reach of the bed, includi ng a sawed-off s hotgun. The barr el lengt h was later d etermined to be eight and one quarter i nches. Sergeant J ones also no ticed a Crown Royal bag on the f loor wit h a white powdery substance insi de . This wh ite substance in the bag was later id entified as being .7 gram s of co caine . The fo rensic scientist who tested t he white substance testi fied that she also founda white plastic strawin the Crow n Roya l bag con taining the cocaine
. Sergeant Jones fu rther found a “used sy ringe” in the bathroo m. No forensic te sts were conducted on t he straw or syringe. SergeantJones also lo cated a writ ing tabl et in the livi ng room which he and the other officers believed contained reco rds of drug t ransactions and money owed to Sulliv an and/or Teran. As the offi cer took th e tablet a nd be gan to read its contents, Teran tried to grab it , tell ing the officer not to take it because i t contai ned her personal notes.

Sullivan was spotted in a soybean f ield acro ss from thehouse about an hour after the sear ch beg an, and he was then bro ught b ack to his home. After bei ng Mirandized, Sullivan aske d narc otics inv estiga tor Ra ndall Robbins what the officers were doing at h is hom e. The o fficer explain ed th at they we re executing a search warran t, he told Sullivan wh at they had foun d, and inform ed hi m that he would be arrested. Sullivan be gan to q uestion th e officer ab out wha t would ha ppen to Teran. W hen th e office r told Su llivan tha t Tera n wou ld likely b e arres ted too , Sulliva n told the offi certhatall of the con traband was his a nd that T eran ha d nothing to do with-4-

it. According to

Investi gatorRobbins, neit her Defendant i ndicated t hat he or she had any me dical prob lems.
Sufficiency of the Evidence

When an accused chall enges the suff iciency of the convicti ng evidence, the standard is whether, after reviewing the evi dence in the light most favora ble to the prosection, any rati onal tri er of fact could have found the esse ntial elem ents of the cri me beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979). This standard i s applicabl e to findi ngs of guil t predicated upon di rect evi dence, circumstant ial evide nc e or a combinati on of direc t and circ umstantialevidence. State v. Matthews , 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the State is entitle d to the strong est leg itimate view of th e evide nce a nd all in fe rences the ref rom. State v. Cabb age , 571 S.W.2d 832, 835 (Tenn. 1978).Because a verdictof guil t removes the pr esumption of i nnoc enc e and replaces i t with a presumption of guilt, th e acc used has th e burd en in th is court of i llustr ating why

the evidence is i nsufficien t to suppo rt the verdict re turned b y the trier of fac t. State v. Williams , 914 S.W.2d 940, 945 (Tenn. Cri m. App. 1995) (citi ng State v. Tug gle , 639 S.W.2d 913, 914 (Tenn . 1982)); State v. Grace , 493 S.W.2d 474, 476 (T enn. 1973 ).

Questions concerning t he credibi lity of the wit nesses, the wei ght and valu e to be given the evidence, as wellas all factualiss ues r aised by the evide nce, are resolved by t he trier

of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. A pp.), perm. to appeal denied , id
. (Te nn. 1987). N or may this cou rt reweig h or reevalu ate the ev idence
. Cabbage , 571 S.W .2d at 835. A jury verdic t-5-

approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts in favor of the State. Grace , 493 S.W.2d at 476.
First, Sullivan argues that the evidence is insufficient to support a findi ng that he is guilty of pos session of a proh ibited wea pon. See Tenn . Code Ann. § 39- 17- 1302. Sergeant Jones found a sawed-off shot gun withi n arm s reac h of Su llivan’s bed in Sullivan’s home. The barr el on that

gun was measured at eight and a quarter inches long. The prohibited weapons statute states that a barrel of a shotgun must be at least

18 inches long. Tenn. Code Ann. § 39-17-1301( 11). A gun Defendant possessed in his own home whic h was almost ten inches shorter than the shortest length allowe d is suff icient e vid ence to uphold Sullivan’s convi ction of possession of a proh ibited wea pon.
Second, Sull iva n and Te ra n conte nd that the evidenc e is not su fficient to support their convic tions for po ssessio n of coca ine with intent to deliver . Tennessee Code Annotated secti on 39-17-417(a) (4) provides that it is an offe nse to “possess a controlled substa nce w ith intent to manufact ure, deliver or sel l such contr olled substa nce.” The st atute als o provides t hat where the sub stance is cocaine in an amount equal to or grea ter than . 5 grams, the off ense is a Class B felony. Tenn. Code Ann. § 39-17-417(c) (1). Defendant s were charged with and convicted of the possession of more than .5grams of cocaine with intent to deli ver. Tests revealed that the actual amount of cocai ne found in the Crown Royal bag was .7 grams. Tennessee law all ows a jury to infer f rom theamo unt of a cont rolled substance or substances poss essed by an offender , along with other re levant facts surrounding the arrest , that the control led substance or substances were poss essed forthe purpose of

selli ng or otherwi se dispensing t he drug. Tenn . Code Ann. §-6-

39-17-419. In State v. Larry G. H art , C.C. A. No. 02C 01-94 06-C C-00 111, H ardin Coun ty (Tenn. Crim . App., Jackso n, June 28, 19 95) (no Ru le 11 application filed), the defendant had only one gram of cocaine in his possess ion, but when that fact was viewed in light of all the circ umsta nces, this Court fou nd th at amount to be s uffici ent to sus tain a g uilty verd ict of po sses sion w ith inten t to delive r or sell. Furthermore, this Court has held that

the po s sess ion of a beep er and $239 .00 in cash, thoug h not c rimin al offens es in and of t hemselves, when coupl ed with the possession of 1.1 gram o f cocaine, was sufficient evidence for the jury to conclude thata defendant was gui lty of possession of

cocaine with the intent to deliver. See State v. Rona ld Mitch ell , C.C.A. N o. 02C 01-970 2-CC -00070 , Laude rdale Co unty (Tenn. Crim. App., J ackson, Sept. 15, 1997) (Rul e 11 applicat ion deni ed April 27, 1998). In t he instant

case, the pr

oof in therecord establ ishes that Defendants had .7 grams of cocaine in t heir possessi on. A “used syringe” was found in t he bathroom and a plas tic straw was fo und in the Crown Royal bag conta ining th e coc aine. W hile this evidence might

infer t hat the drug was possesse d by Defenda nts for their own use and not wit h intent t o deliver , the wri ting tabl et that Teran admit ted belonged to her was also admitted into evi dence. Invest igator Robbi ns testi fied that he bel ieved the tablet contai ned des cripti ons of drugs sol d, to whom they wer e sold, and how much was pai d or owed. A rat ional trier of f act could have concluded that Defen dants p ossess ed the co caine w ith the inten t to deliver.
Although not spec ifica lly raised as an issue a t trial or on appe al, we s hould note thatwe also fi nd suffic ient evi dence that bot h Defendants were i n possession of the cocaine
. Possession of a controll ed substance may be actua l or const ructive. State v. Brown , 915 S .W.2d 3, 7 (Te nn. Crim . App. 19 95); State v . Brown , 823 S.W.2d 5 76, 5 79 (Te nn. Crim . App. 19 91); State v. Cooper , 736 S.W.2d 125, 129-7-

(Tenn. Crim. A pp. 198 7). To constructively possess a drug, that person must have the power and inten tion at a given t ime to exerci se dominion and cont rol over the drugs either d irectly or throug h others
. Cooper , 736 S.W .2d at 129 (citation om itted). Constructive possession is the ability to reduce an object to act ual posse ssion. Brown , 915 S.W .2d at 7; Brown , 823 S.W .2d at 579 (citation om itted). More over , possession may be actual or con structive , either a lone o r jointly with others
. State
v. Copeland , 6 77 S.W.2d 471, 47 6 (Ten n. Crim. A pp.), perm. to appeal denied (Tenn. 1984). Having p ossession of t he premises where cont raband is found creates an inference that the p ossessor had possessi on of the cont raband. Armstrong v. State , 548 S.W.2d 334, 336 (Tenn. Cri m. App. 1976). A pe rson’s mere presence in the area where drugs are di scovered does not show possessi on, and neither will associa tion with the one who is i n control of drugs
. Cooper , 736 S.W.2d at 129. However, t he facts of this case r

eveal more than m ere pres ence b y both Defendants. First, Sulliv an was the owner of the t railer from which th e contraband was confiscated which creates an i nference he possessedthe contraband. Sullivan o f fered no evidence to rebut this inference . In fact, after one of the officers described to him what had been confis cated , he sa id, “W ell, it’s mine. . . . What you found is mine.” This is cer tainly enough evidenceto show possession by Sullivan. Second, Teran w as appreh ended coming out of t he back bedroom where the cocaine was found . One officer te stified th at he s aw wo men ’s clothi ng strewn about the trail er. Also, Teran admitted to the officer s that thewriti ng tablet containi ng drug transacti ons belong ed to he r. This is suff icient to show constructive poss ession on Tera n’s beha lf. The q uestio n of ow nersh ip of drugs is a que stion of fact for the jury. Based on all the foregoing facts, a rational tri er of fact could have reac hed the conclusion that both Defenda nts were in the possession of at least 0.5 grams of cocaine with the intent to deliver.-8- Third, Defen dants argue that t he evidence does not support thei r convict ions forposse ssion of d rug para pherna lia. See Tenn. Code Ann. § 3 9-17-42 5. T hey contend that the straw and thesyringe were n ever te sted to see if they we re actu ally used to intr

oduce the contr

olled substance into t he body. However, the statu te does not require t hat the paraphernalia to have actually been used. TennesseeCod e Annotated section 39- 17-402(12) provides that “‘[d] rug pa raphe rnalia’ m eans all equipm ent, produc ts and m aterials of a ny kind w hich are u sed, intended for use, or designed

for use in
. . . inject ing, ing esting, inhali ng or otherwi se introduc ing into the human body, a contr olled substance.” (emphasi s add ed). A straw found i n the sameCrown Royal bag as thecocaine and asyringe found in t he adjoini ng bathro om are suffi cient evide nce for a rational trier o f fact to find bo th Defen dants guilty of possession of drug paraphernal ia pursuant to Tennessee Code Annotated section 39-17-4 25. We also note that t he same possession analysis above applies here a s well.
The judgment of the t rial cour t is af firmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WA DE, Presiding J udge

___________________________________ JOHN EVERET T WILLIAMS, Judge-9-