# FILED
February 24, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE NOVEMBER 1997 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. NO. 01C 01-9701-CR-00019 Appellee, ) ) DAVIDSON COUNTY VS. ) ) HON. ANN LA

CY JOHNS, WILLIAM A

UBREY TROTTER, JR ., ) JUDGE ) Appellant. ) (Possession of cocaine with intent to sell)
FOR THE APPE LLANT: FOR THE APPELLEE:
GLENN R. FUNK JOHN KNOX WALKUP Suite 340-M, W ashington Sq. Attorney General & Repor ter 222 Second Ave. N. Nashville, TN 37201 DARYL J. BRAND Asst. Attorney General 450 Jame s Roberts on Pkwy. Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General SHARON BROX Asst. District Attor

ney General Suite 500, Washington Sq. 222 Second Ave. N. Nashville, TN 37201
OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 O P I N I O N

T he defendant was indicted for posses sing .5 grams or more o f cocaine with the intent to sell . Ajury convicted hi m of this offense and, after a hearing, he w as sentenced as a range I I multipl e offen der to thi rteen ye ars incarceration and a $2,000 fine. In this appeal as of rig ht, the defendant contends that:

1. The evidence is insufficient to sustain his convic

tion; 2. The trial court erred when it allow ed two police officers to give non- expert opin ion testi mony; 3. The trial court erred w he n it limited his cr

oss-ex aminati on of one o

f the police officers; and 4. The trial court erred w hen it refused to give the “full circumstantial evidence instructi on.” Upon our r eview of th e record, we affirm the judgm ent belo w.

FACTS At approximately 2:30 a.m. on October 20, 1994, Lee Dupie, then a patrol officer for the Metro Police Depar tment, and patrol officer Eby e ntered the Haynes Garden Apartments complex in Dav idson County and walk ed to the back of

one of the buildings. Officer Dupie went to the back of a breezeway and, as a patrol car pulled up to the front of the breezeway , he saw thedefendant “walk from the front of the breezeway to the back ofthe breezeway.” At thatpoint, he testified, he and Officer Eby stepped into the breezeway, tol d the defendant to stop, and identified themselves as police off icers. The defendant stopped and Off icer Dupie performed a pat-down se a rch. During the search he found a “box cutter” and a pl astic bag containing a “rocky substance” i n one of the defendant's pockets. At that poi nt, Officer Dupie arrested the de f e ndant. Upon continuing the search, Officer Dupie found approx imately $200 cash in tens and twenties in the same pocket. The rocky substance w as tested by Glen Ever

ett of the Tennessee3

Bureau of Investigation Cri me Laboratory and determined to be “ cocaine b ase, 3.4 grams.”

Officer

Dupie testified t hat the amount of cocaine seized from the defendant
was known on the street as an “eight ball.” He further testified that the only evidence he had that the defendant possessed the cocain e with the intent to sell was the amount of cocaine, the $200 cash, and the fact that he did not have any paraphernalia for using the drug on his person. Officer Dupie also testified that, in decidin g whether to charge
someone with simple possession or possession with intent to sell, he takes the suspect's appearance into cons ideratio n. He test ified th at, “most of the ti me, some body tha t is addicted tocrack cocaine is, you know, real thi n, probably dirty an d doesn't care about what they

look like, and some of the people that sell drugs are, you know, healthy, you know, they might

be clean[.]” He testified that, when he had arrested the defe ndant, “He was healthy. It seemed l ike he was in good shape

. His eyes weren't sunken in like he had been using a lot of drugs or anythin g like that. . . . He w as clean cut.” Officer Dupie further testified that, at the time he had arrested the defendant , “He didn't appear to be under the influence of crack cocai ne.”

O fficer Jesse Burchwell did

not participate in the defendant's arrest, bu t testified that he had been with the Metro Police Department for four and one-half years at the time of the trial, spen ding the la st three and one-half yea rs on the Cr ime Suppre ssion Uni t. He testified that, whi le a patrol officer, he had made “hundr eds” of drug related arrests inv olving “both simple possession and pos se ssion for resale of usuallycrack cocaine, Dilaudi d, and marijuana” and that he had arrested someone for possession with the intent to sell without any i ndication of the sale itself “ov er a hundred” times. He also testified that he had worked as an undercover office r on “well ove r a4

thousand” occasions. He expla ined that, as su ch, he had “to kn ow the street langu age that the drug dealers are using . . . what to ask for, and . . . approxi mately what quantity you are going to get for what you ask for.” According to Officer Burchwell, sales of crack cocaine were “[u]sually , on the street level, bet ween twenty-doll ar ($20.00 ) roc ks and forty-dollar

($40.00) rocks, which is just what it is. It is worth twenty or forty dollars.” The “rocks” were usuall y packaged in “[c]lear plastic bags.” He testified that the most
common “buy” for

users was twenty dollars because “[t]hey don't usually have the money to buy, to go buy more at any one time.” The average weight of a twenty-dollar piece of cocaine, he t estif ied, “is usually .2 grams.” He further testified that most buys on this level were paid for w

ith twenty-dollar

bills.

In response to the State's ques tion as to what, in his training and experience, distinguished between a simple possession and a pos sessio n for resale, Officer Burchwell testified, “ Usually, the simple po ssession is usually t hey always have
a crack pipe with them, and the majority of the ti me, one small rock of crack co caine, and the possession for resale are obviously several rocks of crack cocain e and . . . the amount of money is an indicator.” Other factors, he testified, included “[s]tandi ng on the
corner [in an area known to

have a hig h volume

of drug traffic], flagging cars down, going to cars, leaving car

s, standing there with really no objectiv e, not, don't live there, not visiting anyone there.”

Officer Burchwell testified tha t he ha d arrested “hundreds, maybe thousands” of people for simple possession and that they ty picallypossessed “A very small amount, a twenty-dollar ($20) rock usually

” at the time of their arrest

. When asked by the State, “And in the course of your training and experience, street level dealer, possession for resa le, what a mounts are you going to find on that person?” Officer5

Burchwell testified, “Larger amounts, several rocks, packaged, packages w e know it to be packaged for resale, money,standing in th e area of a high volume of drug traffic.” Upon examining the bag of cocai ne which had been confiscated from the defendant, he testified that

it contained ten “rocks” and thateach “rock” could be broken in half to sell “for at least twenty.”

The defendant called Charlotte Jennings who liv

ed at the Haynes Garden Apartments. She testified that the defendant ha d lived with his girlfriend there and that he had been headed in that direction when she saw him arr ested. She also testified that she had often seen the defendan t when she thought he was h igh, d escribing his appearance at those times as “Stumbling , ey es jet red, mumbling, talking out of his head.”

The defendant also called his mother, Linda Trotter, who testified thather
son had “started t aking drugs in '92” and that he was using dr ugs often in October of 1994. She testified that she had liv ed at the Haynes Garden Apartments at that time and that her son often stayedwith her there as well as with a girlfriend who al so lived there. She also testified that, during the entire time she lived there, from 1985 to 1995, it was a high drug activi

ty area including a l ot of selling.

ANAL YSIS We first address the defendant's contention tha t the evidence is insufficient to sustain his convicti on. A defendant challenging the sufficiency of th e proo f has the burden ofillustrating to thi s Court why the ev idence is insufficient to suppor t the verdict returned by the trier of fact in his or her case. This Court will not disturb a verdict of guilt forlack ofsufficient evidence unless th e facts contained in the record and any inferences6

which may be drawn from the facts are insuf ficient , as a mat ter of la w, for a rational trier of fact to find the defendant guilty bey ond a reasonable doubt. State v. Tuggle , 63 9 S.W.2d 913, 914 (Tenn. 1982).

When an accused challenges the sufficiency of the convic ting evidence , we must review the e vi dence in the light most favorab le to the prosecution in deter mining whether “ any rational trier of fact could have found the essential elements o f the cr ime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not reweigh or re-evaluate the evidence and are required to afford the State the strongest legitimate view of the proof contained in the record as well
as all reasonable and legitimate inferences which may be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of witnesses, the wei ght and value to be given to the evidence, as well as factual issues raised by the evidence are resolved bythe trier of fact, not this Cour t. Cabbage , 571 S.W.2d 832, 83 5. A guilty verd i ct rendered b y th e jury and approved by the trial judge accre

dits the testimony of the witnesses

for the State, and a presumption of guil t replace s the presumption of innocence. State v. Grace , 493 S.W.2d 474, 47 6 (Tenn. 1973).

The defendant was convicted of possessing .5

grams or more of cocaine with the intent to sell. T.C.A. § 39- 17-417(a)(4) (Supp. 1994).He does not dispute his possession of the drug; rather, he argues that the evidence was ins ufficient to prove that he possessed it with the i ntent to sell it. We disagree. The officers' testimony about the customs of cocaine dealing together with the amount of

cocaine found on the defendan t's person, the fact thatit wasbroken into ten “rocks” each of which could have been further1 See Tenn. R. Evid. 701 (1994-199 5). 7

broken in hal f and sold for twenty doll ars apiece, the $200 cash in te ns and twenties found on the defendant, his location at an area known for drug dealing , his demeanor and the lack of any paraphernalia for using the drug support the conclusion that he possess ed the cocaine for the pur pose of sel ling it. See T.C.A. § 39-17-419 (1991) (“ It may be inferred from the amount of a controlled substance

. . . possessed by an offender, along with other relevant facts sur rounding the arrest, that the controlled substance

. . . [was] possessed with the purpose of sellin g or other wise dispensing”) . This issue is without merit.

We next address the defendant's contention that the tri al court erred when it allowed Officers Dupie and Burchwell “to testify as to their opinion as to why [he] wa s guilty of possession for resale ver sus simple possession.” Initially, we di sagree with the defendant in his characteriz ation ofthe officers' testimony. Officer Dupie testified as to why he charged the defendant with possession for sale rather than simple possessi on. His reasons were base d on his actual exp eriences in invest igating a nd arr esting drug offenders. He did not testify that, in his “op inion,” the defendant was gui lty as charged. Nordi d Officer Burchwell, w ho also testified about the common differences betwee n users and sellers, based on his ex periences in the field. In r esponse to a similar argument, th is Co urt has previously held that a narcotics officer may testify about the language used by drug dealers and the appearance of cocaine. See State v. Carey , 914 S.W.2d 93, 96 (Tenn. Crim. App. 1995).

Addition ally, in support of his argument, th e defenda nt relies on an outdated version of Tennessee Rule of Evidence 701. 1 At the time the defendant was tried on July 22 and 23, 1996, Rule 701(a) provided as follows:2 It is undisputed that neither of the officers was testifyi ng as an “expert.” Howeve r, it would have been w ithin the trial cou rt's discretion to allow the o fficers to te stify as exp ert witness es with res pect to the common characteristi cs of cocaine deal ers. Under our Rul es of Evidence, “If sci entifi c, techni cal, or other sp ecialized k nowled ge will subs tantially assist the trier of fact to u ndersta nd the ev idence o r to determine a fact

in issue, a witness qual ified as an expert by knowledge, skil l, experi ence, trai ning or education may testify in the f orm of an opinion o r otherwi se.” Tenn. R. Evid. 702.

8 If a witness is not testi fying as an exp ert, 2 the witness's testimony in t he form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witnes s and (2) helpful to a clear understanding of the witness's testimony or the determination of a fact in is sue. To the extent that one

could characterize the officers' testimony in this case as “opinion or inferences,” it fell w

ithin the parameters of this Ru le. This issue is wi thout merit.

The defendant also

contends tha

t the trial court imp roperly li mited his crossexamination of Of ficer Burchwell. Dur ing defense counsel's questioning of Officer Burchwell, he asked if the officer had“ever madean arrest for possession for r esale that, after[an independent review by the prosecutor’s office or by a Judge or by a j ury], turned into a conviction for simple p ossession?” Officer Burchw ell then asked if counsel meant “by trial or by plea bar

gain?” A bench conference e nsue d during which the trial court ruled “That is misleading to the jury when you i nclude plea bargaining. That is going to have to be specifically ex cluded.” Defense counsel objec ted to the ruling, arguing that “a plea bargain includes c ases where the State agr ees thatthe proper charge is simple possession, and if the State agrees to that, then that means that an independent rev iew has been conducted and that is what the disposi tion is.” The trial cour

t responded, “That is not pleabargaining . I vehemently disag ree with that character ization of plea bargaining.” Defendant now complains that the trial court's ruling was error.

We first note that “[t]he propri ety, s cope , and control of the crossexamination of witnesses is . . . w ithin the reasonable discr etion of the trial judge. Ap pellate courts may not disturb di scretionary limitations on cross-examinati on absent9

a clear and plain abuse.” State v. Richardson , 875 S.W.2d 671, 675 (Tenn. Crim. App. 1993) (citations omitted). We see no such ab use here. Moreover, our rules of evidence providefor the exclusion of evide nce, even if it is rel evant, whe re “its pro bative value is substantially outweighed by the danger of . . . misleading the jury .” Tenn. R. Evid. 403. We agree with the tri al court that the implication of the defendant's question -- that plea bargainsresult from the district attorney's determination that the arresting officer's charge is incorrect -- is mi sleading. As pointed out by the State in its br ief, plea bargains are often entered into “for practical reas ons having little to

do with the legal or

factual merits of the case.” This issue has no mer it.
Finally, the defendant contends that the trial court erred w

hen it refused to charge thejury withthe “full circumstantial evidence instruction.” The defenda nt refers to the jury instruction that, when the proof against a defendant is c om pletely circumstantial in nature , the “fa cts must e xclude eve ry oth er reasonable theory ex cept that of guilt” before it can conv ict. T.P.I. -Crim. 42.03(a). A trial cou rt is requir ed to give this instruction when

all of the evidence is circumstantial, wheth er or not the defendant requestsit. See State v. Thompson , 519 S.W.2d 789, 792 (Tenn. 1975). Howev er, when the proof is b oth direc t and circu mstanti al, the tr ial court is required to give the instruction onlyif the defendant requests it. Id. The request must be in writing. Tenn. R. Crim. P. 30(a).

The proof in this case was both direct and circumstantial. We ackno wledge that the defendant's counsel orally requested the “ full” circumstantial ev idence instruction. However, the record contains no written r equest as required by

our rules of

procedure. This Court has previously hel d that, “[a]bsent a writ ten request, a

trial court's refusal t

o give [this] instruction is not error.” State v. Derek Denton , No. 02C 01-9409-CR-00186,1 0

Shelby County (Tenn. Crim. App. fil ed Aug. 2, 1996, at Jackson) citing State v. Mackey , 638 S.W.2d 830, 836 (Tenn. Crim. App. 1982). This is sue is without merit.
The judgment below is affirmed.

______________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ JOSEPH M. TIPT ON, Judge

______________________________ DAVID H. W ELLES, Judge