IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 10, 2006

 STATE OF TENNESSEE v. JOHNNY E. PORTER

Direct Appeal from the Circuit Court for Hardin County

No. 8392 C. Creed McGinley, Judge

No. W2005-01389-CCA-R3-CD - Filed February 15, 2006

The defendant, Johnny E. Porter, was convicted of possession of over .5 grams of a Schedule II

controlled substance (cocaine) with intent to sell, a Class B felony, and possession of marijuana, a

Class A misdemeanor. He received concurrent sentences of nine years and eleven months, twentynine days on the charges, respectively. On appeal, the defendant contests the sufficiency of the

evidence and contends that the trial court erred in enhancing his sentence on Count One from eight

years to nine years based solely upon his prior criminal record. Upon review, we affirm the

conviction and sentence. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and

ALAN E. GLENN, JJ., joined.

Guy T. Wilkinson, District Public Defender, and Richard W. DeBerry, Assistant Public Defender,

for the appellant, Johnny E. Porter.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;

Robert G. Radford, District Attorney General; and John W. Overton, Jr., Chief Deputy District

Attorney General, for the appellee, State of Tennessee.

OPINION

At trial, Brian Rich testified that he was employed with the Savannah Police Department in

August 2004, and was on patrol at the Savannah Motel when he noticed someone jump behind a

fence in an attempt to hide from him. Upon his request, a woman identified as Jennifer Arnold

emerged from behind the fence and told him that she was staying in room thirty-two of the motel.

Officer Rich and accompanying deputyCharles White received Arnold’s permission to approach the

room and confirm the veracity of her statement. 
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As the door opened, the officers detected a strong odor of marijuana and obtained Arnold’s

permission to conduct a consensual search of the room. When the defendant opened the door,

Jonathan and Crystal Bennett were sitting on the bed, and a fourth individual, eventually identified

as Bernard Wallace, was in the bathroom. Officer Rich noticed drug paraphernalia (brillo pads and

a crack pipe) in plain view on top of the television and discovered bags of what he believed to be

marijuana and crack cocaine behind the cushions of the couch. 

Because no one claimed ownership of the substances, all five individuals were arrested, and

the seized contraband was sent to the Tennessee Bureau of Investigation (TBI) crime lab for

identification and to be weighed. As the subjects were being transported to the jail, Officer Rich

learned from the manager of the motel that the room was actually reserved by Ashley Morris, who

was not found in the room at the time of the search. On cross-examination, Officer Rich

acknowledged that the defendant was not found to have any drugs or a significant amount of money

on his person and did not attempt to flee. Deputy White testified on cross-examination that there

was evidence of consumption in the room, including the pipes which were found in plain view.

Jennifer Arnold testified that she went to the motel, upon invitation from Bernard Wallace,

to smoke marijuana and crack cocaine. When she arrived, Ashley Morris and the defendant were

present. Wallace arrived shortly thereafter. Sometime later, Ashley Morris left and Crystal and

Jonathan Bennett arrived. Arnold testified that Wallace gave the defendant an $80 rock of crack

cocaine to sell but that the defendant returned without the money or the drugs. She further stated that

she went outside to deliver a $70 rock of crack cocaine but did not complete the transaction because

Officer Rich approached her and she threw the rock away. Upon questioning by Officer Rich, she

advised him that she was staying in room thirty-two and was outside to get “a breath of fresh air.”

Arnold stated that she assumed Wallace brought the drugs to the motel room.

On cross-examination, Arnold testified that she arrived at the motel between 10:00 and 10:30

p.m. and was high on crack cocaine by the time the other individuals arrived. Arnold reiterated that

Wallace handed the defendant what she believed was an $80 rock of crack cocaine, which the

defendant put in his pocket before leaving with Crystal Bennett. She stated that when the defendant

came back without the drugs or money, he and Wallace “had words back and forth” regarding the

incident, but the defendant had no explanation for Wallace. She testified that the only transaction

she attempted to make failed because the police arrived. On redirect examination, Arnold

acknowledged a prior intimate relationship with Wallace but indicated that her testimony related “the

way that it happened.” 

Ashley Morris testified that she reserved room thirty-two at the Savannah Motel “mostly to

get high.” She stated that she and Wallace, who provided the cocaine, were later joined by the

defendant and Arnold. Morris recalled that Ricky Hutton picked her up from the motel and drove

her home before the police arrived. On cross-examination, she stated that she rented two rooms on

the day of the incident, the first with the defendant, and the second for Wallace. She reiterated that

Wallace was the only person that she saw bring drugs into the motel. 
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Crystal Bennett testified that she and her husband, Jonathan, had been at the Savannah Motel

approximately forty-five minutes when the police arrived. She stated that the defendant brought a

rock of crack cocaine to their home earlier in the day and invited them to a party at the motel that

night. Bennett recalled that she used cocaine while at the motel and that she left with the defendant

sometime during the evening to purchase cigarettes. She further stated that she drove the defendant

to a house behind the jail at his request before returning to the motel. When the defendant came

back to the motel sometime later, he spoke with Wallace who “wasn’t very happy with [the

defendant].” Thereafter, Arnold left the room to deliver drugs to someone outside, and “[a] few

minutes later, the law showed up.” Bennett stated that the defendant announced that the police were

outside and that Wallace subsequently flushed the cocaine down the toilet before the police

conducted a search of the room.

Jessica Webb testified that she is employed by theTBI as a forensic scientist. She stated that,

upon analysis, she determined the substances submitted in the present case consisted of thirty-one

grams of marijuana and 8.9 grams of cocaine base. She particularly noted that the amount of cocaine

seized was “probably greater than normal.” 

As the final witness at trial, the defendant testified that he went to the Savannah Motel

between 2:00 and 2:30 p.m. to talk to Bernard Wallace about “[going] somewhere and getting high.”

He stated that he used drugs at the motel but was not there to deliver drugs or purchase drugs to

resell. The defendant recalled that he invited Crystal and Jonathan Bennett to the party earlier that

day and that he gave Jonathan Bennett a small rock of crack cocaine at that time. He stated that

Crystal Bennett drove him across town so that he could tell an individual he identified as Nebo that

he did not have any drugs to sell. He further indicated that he did not use or deliver any drugs while

at Nebo’s house. The defendant explained that Wallace handed him drugs in jest before he left but

that he immediately returned them to him. 

On cross-examination, the defendant testified that he used both marijuana and crack cocaine

in the motel room. The defendant acknowledged that he gave a rock of crack cocaine to Jonathan

Bennett but stated that he was not paid for the drugs and that Wallace did not send him there. On

redirect examination, the defendant testified that he did not go to the Bennett residence with the

intention of selling drugs or delivering drugs to sell. He further reiterated that he went to Nebo’s

house to tell them that he did not sell drugs and to tell them to stop calling him. 

I. Sufficiency

When an accused challenges the sufficiency of the evidence, this court must review the

record to determine if the evidence adduced during the trial was sufficient “to support the finding

by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is

applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a

combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.

App. 1996).
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In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its

inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 286

S.W.2d 856, 859 (Tenn. 1956). To the contrary, this court is required to afford the State the

strongest legitimate view of the evidence contained in the record as well as all reasonable and

legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578, 581

(Tenn. 2003).

The trier of fact, not this court, resolves 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.

Id. In State v. Grace, the Tennessee Supreme Court stated that “[a] guilty verdict by the jury,

approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all

conflicts in favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973). 

Because a verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, the accused has the burden in this court of illustrating why the evidence is

insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982); Grace, 493 S.W.2d at 476. 

The conviction offenses require proof that the defendant knowingly possessed over .5 grams

of cocaine 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 constructive. State v. Shaw, 37 S.W.3d

900, 903 (Tenn. 2001). To prove constructive possession, the State must establish the defendant had

the power and intention at a given time to exercise dominion and control over the drugs either

directly or through others. Id. at 903; see also State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim.

App. 1997). 

Presence in the area of the drugs or association with those possessing drugs, alone, is not

sufficient to establish constructive possession. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim.

App. 1987). Further, pursuant to Tennessee Code Annotated section 39-17-419, “[i]t may be

inferred from the amount of a controlled substance or substances possessed by an offender, along

with other relevant facts surrounding the arrest, that the controlled substance or substances were

possessed with the purpose of selling or otherwise dispensing.”

On appeal, the defendant particularly contends that Arnold’s testimony was insufficient due

to her lack of credibility. However, as we have noted, the credibility of witnesses is to be determined

by the trier of fact and not this court. Taken in a light most favorable to the State, the evidence

established that Wallace gave the defendant an $80 rock of crack cocaine to sell; that the defendant

left with Crystal Bennett; and that Wallace was upset when the defendant returned without the drugs

or money. Furthermore, it was undisputed that the seized contraband included 8.9 grams of cocaine

base. In our view, the testimony of Arnold and Bennett, taken together with the amount of cocaine

seized, was sufficient to convict the defendant of knowingly possessing more than .5 grams of

cocaine with intent to sell. 
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We likewise conclude that sufficient evidence existed to convict the defendant of simple

possession of marijuana. Officer Rich and Deputy White indicated that a strong odor of marijuana

emanated from the room occupied by the defendant, and Jessica Webb testified that thirty-one grams

of marijuana were seized upon the consensual search. Moreover, the defendant admitted to using

marijuana while in the room, thereby exercising direct control over it. For these reasons, we affirm

the convictions. 

II. Sentencing

Second and finally, the defendant contends that the trial court erred in sentencing him to nine

years on Count One based solely upon his prior criminal record. The weight given to each

enhancement or mitigating factor is in the discretion of the trial court, assuming the trial court has

complied with the purposes and principles of the sentencing act and its findings are supported by the

record. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002). The statutes prescribe no

particular weight for an enhancement or mitigating factor. State v. Gosnell, 62 S.W.3d 740, 750

(Tenn. Crim. App. 2001). “[A] defendant’s ‘sentence is not determined by the mathematical process

of adding the sum total of enhancing factors present then subtracting from this figure the mitigating

factors present for a net number of years.’” State v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App.

2001) (quoting State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)).

The defendant challenges his sentence for possession of over .5 grams of a Schedule II

controlled substance (cocaine) with intent to sell, a Class B felony, which carries a Range I penalty

of between eight and twelve years. The trial court began with the presumptive minimum sentence

of eight years and enhanced the sentence to nine years based upon the application of enhancement

factor (2), the defendant’s previous history of criminal convictions. See T.C.A. § 40-35-114(2). The

trial court specifically noted that:

[The defendant has] two prior felony convictions. One of them is, actually,

the sale of a drug, marijuana. The conviction time was 1989. He’s also got a robbery

conviction back in 1982. After those, as late as 2004, there’s a simple possession of

marijuana. Other than that, the records are not significant, but there are two prior

felonies as well as a late charge on the marijuana in this case.

Considering his prior - or starting at the statutory minimum of eight years and

considering his prior criminal history in this case, the Court feels that the appropriate

sentence in this case is nine years. I’m not going to enhance him beyond that.

Upon review, we conclude that the defendant’s prior criminal record, which includes two prior

drug-related offenses, justified the trial court’s one-year enhancement of his sentence. 
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Conclusion

Based upon the foregoing, we affirm the judgment and sentence of the Circuit Court of

Hardin County.

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JOHN EVERETT WILLIAMS, JUDGE