### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs Ja nua ry 10, 200 6

STA TE OF TEN NES SEE v. JOHNN Y E . P ORT ER

Direc t Appeal from the Circ uit Court for Hardin County No. 8392 C. Cr eed Mc Ginley, Judge

No. W2005-01389-C CA-R 3-CD - F iled Fe bruary 15, 2006

T h e d e f e n d a n t , J o h n n y

E

. P o r t e r , w a s c o n v i c t e d o f p o s s e s s i o n o f

o v e r

. 5 g r a m s o f

a S c h e d u l e II controlled substanc e (c ocaine ) with intent to sell, a Class B f elony , and possession of marijuana, a C l a s s A m i s d e m e a n o r

. H e r e c e i v e d c o n c u rr e n t s e n t e n c e s o f n i n e ye ar s a n d e l e v e n m o n t h s , t w e n t ynine day s on the cha

rg es, re spectively

. On appe al, the def endant c ontests the sufficie ncy of the evidenc e and contends that the trial court err ed in e nhancing his se ntence on Count One from eig ht y e ar s to n in e y e ar s b a s e d s o le ly u p o n h is p r io r c r im in a l r e c o r d

. U p o n r e v ie w , w e a f f ir m the conviction and se ntence

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

J OHN E VE R E TT W I L L I AMS , J ., delivere d t h e o p i n i on of the c ourt, in which D AVI D G. H AYES and A L AN E. G L EN N , J J ., joined.
Guy T. Wil kinson, District Publ ic Def ender , and Richar d W. DeBe rry , Assistant Publ ic Def ender , for the a ppellant, J ohnny

E. Porter.

Pa ul G. Sum me rs , Atto rn e y Ge ne ra l and Re po rt e r; Re ne e W. T ur ne r, As sis ta nt A tto rn e y Ge ne ra l; Robert G. Radfor d, District Attorney Gene ral; and John W . Overton, J r., Chief De puty District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

At tr ia l, B ri a n Ri c h te sti fi e d that he wa s e mpl oy e d w ith the Sa va nn a h Po lic e De pa rt me nt i n Aug ust 2004, and was on patrol at the Sava n n ah Mot el when he noticed someone jump behind a fe nc e in a n a tte mpt

to h ide fr om h im. Up on his re qu e st, a wo ma n id e nti fi e d a s Jen nif e r A rn old
e me rg e d f ro m be hin d th e fe nc e a ndtol d him tha t she wa s sta y ing in ro om thirty -t wo of the mot e l. Offic er Rich a nd acc ompany ing de puty Charles Whit e rec eived Arnold’s permission to approac h the room and c onfirm the ver acity of her statement.-2-

As the door opened, the office rs detected a strong odor of marijuana and obta ined Arnold’s permission to conduct a c onsensual sea rch of the ro o m

. When the defe ndant opene d the door, J onathan a nd Cry stal Be nnett wer e sitting on the be d, and a f ourth individual, eventually identified as B erna rd Wallace , was in the bathroom. Offic er Rich noticed drug paraphe rnalia (brillo pads and
a cr ac k p i p e) in plain view on top of the television and discove red ba g s of what he believed to be marijuana and cr ack c ocaine behind the cushions of the couch.

Be cause no one cla imed owner ship of the substance s, all five individuals were arr ested, a nd the seized contra

band wa s sent to the Tenne ssee B ureau o f I nvestig ation (TB I ) crime lab for identification and to be weig hed. As the subjec ts were being transporte d to the j ai l , Of fice r Rich learned fr om the manag er of the motel that the room wa s actua lly rese rved by Ashley Morris, who was not found in the r oom at the time of t h e s ea rch. On cross-e x amination, Offic er Rich acknow ledg ed that the de fenda nt was not found to ha ve any drug s or a sig nificant a mount of money
on his pe rson and did not attempt to f lee. Deputy Whit e testified on cross-e x aminati o n t h at there
was e vidence of consumption in the room, including the pipes which w ere found in plain view.

J ennife r Arnold testified that she went to the m otel, upon invitation from Be rnar d Wallace, to smoke marijuana a nd cra ck coc aine. When she arrive d, Ashley Morris and the de fenda nt were prese nt. Wallace ar

rived s h o rt l ythere afte r. Sometime later, Ashle y Morris left a nd Cry stal and J onathan B ennett ar

rived. Arnold testified that Wallace g ave the defe ndant an $80 rock of cra ck
coca ine to se ll but that the def endant r eturne d without the money or the drug s. She further

stated that sh e we nt o uts ide to d e liv e r a $7 0 r oc k of cr a c k co c a ine bu t did not c omp le te the tr a ns a c tio n b e c a us e Offic er Rich a

pproac hed her

and she thre w the roc k awa y . Upon questioning by Offic er Rich, she advised him that she wa s stay ing in r oom thirty -two and w as outside to g et “a breath of fre sh air.” Arno ld s ta te d th a t sh e a ssu me d Wa lla c e br ou g ht the dr ug s to the mot e l r oo m.

On cr oss-examination, Arnold testified that she ar rived at the motel betwee n 10:00 and 10:30 p.m. and was hig h on cra ck coc aine by the t ime the other individuals ar rived. Arnold reiterated that Wallace ha n d ed t h e defe ndant what she believed w as an $80 r ock of c rac k coca ine, which the defe ndant put in his pocket befor e lea ving w ith Cry stal Be nnett. She stated that whe n the def endant
came back w ithout the drugs or money , he and Wallace “ had wor ds back a nd forth” r eg arding the incident, but the defe ndant had no e x planation for Wallac e. She testified that the only transac tion sh e a tte mp t e d t o m ak e f a i l e d b e c a u s e t h e p o l i c e arr i v e d

. O n r e d i r e c te xa m i n a t i o n , A r n old acknow ledg ed a prior intimate relation s h ip w it hWall ace but indicated that her testimonyrela ted “the way that it happened.”

As hle y Mo rris t e sti fi e d th a t sh e re se rv e d r oo m th irty -t wo a t th e Sa va nn a h M ote l “ mos tly to g et hig h.” She stated tha t she and Wallace , who provided t h e co caine, wer e later joined by

the defe ndant and Arnold. Morris rec alled that Ricky Hutton picked her

up from the motel and dr ove her home befor e the police arrived. On cr oss-examination, she stated that she rente d two rooms on the day of the incide nt, the first with the defe ndant, and the se cond for Wallace. She r eiterated that Wallace wa s the only

person that she saw bring drug s into the motel.-3-

Cry stal Be nnett testified that she a nd her husband, J onathan, ha d been at the Savannah Mote l
app ro xima te ly

fo rt y -f ive min ute s w he n th e po lic e arrive d. She state d th a t the de fe nd a nt b ro ug ht a rock of cra ck coc aine to their h o m e earlier in the day and invited them to a party at the motel that night. B ennett re called that she used coc aine while at the motel and that she lef t with the defe ndant sometime during the eve ning to pur chase cig are ttes. She further stated that she drove the def endant to a ho us e be hin d th e ja il at hi s r e qu e st be for e re turnin g to the mot e l. Wh e n th e de fe nd a nt c a me back to the motel sometime late r, he spoke with Wallace who “ wasn’t ve ry happy with [ the defe ndant]

. ” T h ereafte r, Arnold lef t the room to deliver dr

ug s to someone outside, and “ [a] few minutes later, the law showed up.” Be nnett stated t hat t he def endant a nnounced that the police we re
o u ts id e a n d th a t Wa ll a c e s u b s e q u e n tl y f lu s h e d th e c o c a in e d o w n th e to il e t b e f o r e the police
c on du c te d a

se arc h o f the ro om.

Jess ic a Web b te sti fi e d th a t sh e is e mpl oy e d b y the TB I a s a fo re ns ic sc ie nti st. She state d th a t, upon analy sis, she determined the substances submitted in the pre sent ca se consisted of thirty -one g rams of ma

rijuana a nd 8.9 g rams of coca ine base. She pa rticularly noted that the amount of c ocaine seized was “pr obably

g reater than normal.”

As the fi n al wi t n es s at trial, the de fenda nt testified that he we nt to the Savannah Motel betwee n 2:00 and 2:30 p.m. to talk to Berna rd Wallace about “[g oing] somewher e and ge tting hig h.” He state d th a t he us e d d ru g s a t th e mot e l bu t was no t th e re to d e liv e r d ru g s o r p ur c ha se dr ug s to
rese ll. The defe ndant recalled that he invited Cry stal and Jonathan Be nnett to the party ear lier that day and that he g ave Jonathan B ennett a sma ll rock of c rac k coca ine at that time. He st ated that Cry stal Be nnett drove him ac ross town so that he could tell an indi vidual he identified as Nebo that he didno t ha ve a ny

dr ug s to se ll. He fu rthe r ind ic a te d tha t he did no t use or de liv e r a ny dr ug s w hil e at Nebo’ s house. The de fenda nt expl ained that Wallace handed him drug s in jest before he lef t but that he immediately

returne d them to him.

On cr oss-examination, the defenda nt testified that he used both marijuana and c rac k coca ine in the motel room. The def endant a cknowledg ed that he g ave a rock of cra ck coc aine to Jonathan Be nnett but stated that he wa s not pa id f or the drug s and that Wallace did not send him there. O n redire ct examination, the defe ndan t testified that he did not g o to the Be nnett residenc e with the inte n t i o n o f s el l i ng drug s or delivering dr ug s to sell. He furthe r re iterate d that he we nt to Nebo’s house to tell them that he did not sell drug s and to tell them to stop calling him.

I . Sufficienc y

When an ac cused c halleng es the suff icien cy o f the e vidence , this court must review the
rec ord to determin e if the evide nce a dduced during thetrial was suff icient “to support the f

inding by the tr ie r o f f

a c t of g uil t be y on d a

re a so na ble do ub t.” Te nn . R. Ap p. P. 1 3(e) . T his ru le is applicable to findings of g uilt predicate d upon direc t evidence , circu m s t an t i al evidence, or a
c omb inatio n o f d ir e c t a ndc ir c ums ta nti a l e vid e nc e . St a te v. B re we r, 93 2 S.W.2 d 1, 18 (T e nn . Crim. App. 1996).-4-

I n determining the suff

iciency of t he evidence, this court does not rewe igh or ree valuate the
e vid e nc e

. Sta te v. Ca

bb a g e , 5 71 S.W. 2d83 2, 83 5 ( Te nn . 1 97 8) . N or ma y thi s c ou rt su bs titute its infere nces f

or those dra wn by

the trier of

fact fr o m ci rc u mstantial evidence . L iakas v. State, 286 S.W .2d 856, 859 (Tenn. 1956) . To the contra ry , thi s co u rt is require d to affor d the State the strong est leg itimate view of the e vidence contained in the re co rd as well as a ll reasona ble and leg itimate infere nces w hich may be dra wn from the evidence

. State v. Elkins, 102 S.W .3d 578, 581 (Tenn. 2003)

.
Th e tr ie r o f f

a c t, n ot this c ou rt , r e so lve s que sti on s con c e rn ing the c re dib ili ty of the wi tne sse s, the weig ht and value to be g iven the evide nce, a s well as all factual issues ra ised by the evidenc e. Id

. In S t a t e v

. G r a c e , t h e T e n n e s s e e S u p r e m e C o u r ts t a t e d t h a t“ [ a ] g u i l t y v e r d i c t b y t h e j u r y, app ro ve d by the tr ia l jud g e , a c c re dit s the te sti mon y of the wi tne sse s fo r the Sta te a nd re so lv es all conflicts in fa vor of the the ory of the State.” 493 S.W .2d 474, 476 (Tenn. 1973)

.
Be cause a ver dict of g u i l t re m o v es t he pre sumption of innocenceand re place s it with a pr e su mpt ion of

g uil t, the accusedha s th e bu rd e n in thi s c ou rt of ill us tr a tin g wh y

the e vid e nc e is insufficient to support the verdict returne d by the t rier of fac t. State v. Tug g le, 639 S.W.2d 913, 914 (Tenn. 1982) ; Grac e, 493 S.W.2d at 476.

Th e c on vic tio n o ff

e ns e s r e qu ir e pr oo f tha t th e de fe nd a nt kno wi ng ly po sse sse d o ve r . 5 g ra ms of coc aine with intent to sell it and that he knowingly possessed marijuana. See T.C.A. §§ 39-17- 417(a) (4) -(c) (1); 39-17-418(a)

. Possession may be actual or c onstructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) . To prove constructive possession, the State must establish the defenda nt had the power

and intention at a g iven time to exercise dominion an d co ntrol over the dr ug s either dir e c tly or thr ou g h o the rs

. I d. a t 90 3; se e a lso Sta te v. Pa tte rs on , 96 6 S.W. 2d43 5, 44 5 ( Te nn . Crim. App. 1997).

Presenc e in the ar ea of t h e d ru g s or association with thos e possessing drug s, alone, is not
su ff ic ie nt t o e sta

bli sh c on str

uc tiv e po sse ssi on . St a te v. Coo pe r, 73 6 S.W. 2d12 5, 12 9 ( Te nn . Crim. App. 1987). F urther, pur suant to Tennessee Code Annota ted sec tion 39-17-419, “[i] t may be inferr ed fr om the amount of a c ontr o l l ed substance or substances posse ssed by

an off ender , along with other re levant fa cts surrounding the ar rest, that the c ontrolled substance or substance s were possessed with the purpose of selling or otherw ise dispensing .”
On appe al, the def

endant pa rticularly contends that Arnold’s testimony was insuffic ient due to her lac k of cr edibility . Howeve r, as we have note d, the cr edibilityof witnesses is to be de termined by th e trie r o f f a c t a n d n o t th is c o u r t. T ak e n in a li g h t m o s t f

a v o r ab le to th e St a te , th e e v id e n ce established that Wallace g ave the defe ndant an $80 rock of cra ck cocaine to sell; t hat the def endant l ef twi t h C ry s t al Be n n et t ; an d t h at W al l ac e wa s u p s et wh en t h e d ef en d an tre t u rn ed wi t h o u tt h e d ru gs
or m oney . Furthermore , it was undisputed that the seized contra band included 8.9 g rams of c ocaine base. In our view, the testimony of Arnold a nd Be nnett, taken togethe r wit h the amount of c ocaine seized, was sufficie nt to convict the defe ndant of knowing ly possessing more than .5 g ram s of
coca ine with intent to sell.-5-

We l ike wi se c on c lud e that su ff ic ie nt e vid e nc e e xiste d to c on vict th e de fe nd a nt o f s imp le possession of marijuana

. Offic er Rich and Deputy Whit e indicated that a strong odor of marijuana
e ma na te d f

ro m the ro om oc c up ie d b y the de fe nd a nt, a ndJess ic a Web b te sti fi e d th a t th irty -o ne g ra ms of marijuana

wer e seized upon the consensua l se arc h. Moreove r, the def endant a dmitted to usi ng marijuana while in the room, there by exercising direc t control over it. F or these r easons, we aff irm the convictions.

I I . Sentencing

Second and finally , the defe ndant contends that the trial court err ed in se ntencing him to nine y ear s on Count One based solely upon his prior criminal re cord. The weight g iven to eac h enhanc ement or mitigating fac tor is in the discre tion of the trial court, assuming the trial court ha s complied with the purposes a nd principles of the sentenc ing a ct and its finding s are supported by the
rec ord. State v. Madde n, 99 S.W .3d 127, 138 (Tenn. Crim. App. 2002). The statutes presc ribe no particula r we ight f or an e nhance ment or mitiga ting f actor . State v

. Gos nell, 62 S.W .3d 740, 750 (T e nn . Crim. Ap p. 20 01 ). “ [A] de fe nd a nt’ s ‘ se nte nc e is n ot d e te rm ine d by the ma the ma tic a l pr oc e ss of adding the sum total of enhanc ing fac tors prese nt the n subtracting from this figur e the mitigating fac tors prese nt for a net num ber of y ear s.’” State v. Alde r, 71 S.W.3d 299, 306 (Tenn. Crim. App. 2001) (quoting State v. Bog g s, 932 S.W .2d 467, 475 (Tenn. Crim. App. 1996) ).

T h e d e f e n d a n tc h a l l e n g e s h i s s e n t e n c e f o r p o s s e s s i o n o f

o v e r

. 5 g r a m s o f

a S c h e d u l e II
c on tr oll e d s ub sta nc e (c oc a ine ) w ith int e nt t o s e ll, a Cla ss B fe lon y , whi c h ca rrie s a Ra ng e I pe na lty of betwe en eig ht and twelve y ear s. The trial c ourt beg an with the pre sumptive mini mum sentence of eig ht y ear s and enhanc ed the sentenc e to nine y ear s based upon the application of enhanc ement fac tor (2), the defe ndant’s pre vious historyof criminal convictions. See T.C.A. § 40-35-114( 2). The tr ia l c ou rt sp e c if ic a lly no te d th a t:
[ T h e d e f e n d a n th a s ] t w o p r i o r

f e l o n y c o n v i c t i o n s

. O n e o f t h e mi s , a c t u a l l y, the sale of a drug , marijuana . The c onviction time was 1989. He’ s also g ot a robbe ry conviction bac k in 1982. After those , as late as 2004, the re’ s a simple possession of marijuana . Other tha n that, the reco rd s are not signific ant, but there are two prior felonies a s well as a late cha rg e on the marijuana in this case.
Considering his prior - or

starting at the statutory

minimum of eig ht y ear s and
c on sid e ri ng his pr ior

c ri min a l his tory

in this c a se , th e Cou rt

fe e ls tha t th e app ro pr ia te
se nte nc e in this c a se is n ine y e ars . I ’m no t g oin g to e nh a nc e him be y on d th a t.
Upon re view, we conclude that the def endant’ s prior criminal recor d, which includes two prior drug -re lated off

enses, justified the tria l court’s one -y ear enhanc ement of his sente nce.-6- Conclusion

Ba s ed u pon the fore g oing, w e af firm the judg ment and sente nce of the Circuit Court of H ar d i n C o u n t y.

___________________________________ J OHN EV ERETT WI LL I AMS, J UDGE