### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

STATE OF TENNESSEE v. LAR RY EDWARD ENGLET
Direct Appeal from the Circuit Court for Madison County No. 98-463 Hon. Franklin Murchison, Judge

No. W1999-00283-CCA-R3-CD - Decided May 8, 2000

The defendant appeals from his conviction of po

ssession of marijua

na with intent to sell, a Class E felony. He claims that because the indictment failed to specify the a mount o f marijuana he was accused of possessing, he could properly be convicted of no offense greater than simple possession of marijuana, a Clas s A misdemeanor. Bec ause his argument

is without merit, the judgment of the trial court is affirmed.
Tenn. R. App. P. 3; Judgm ent of the Circuit

Court Affirmed.

W ITT , J., delivered the opinion of the court, in which W ADE , P.J., and W OODALL , J., joined.
Lloyd R. Tatum, Hend

erson, Tennnesse

e, for the appell

ant, Larry Edwa

rd Englet.

Paul G. Su mmers , Attorney Gener al and Reporter,

Tara B. Hinkle, As sistant Attorney Ge neral, James G. Woodall, District Attorney Gen eral, and Chris Schultz, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

J UDGE W ITT delivered the opi nion of the court.

The defendant, Lar

ry Edward Englet

, appeals from his

conviction of

possession of marijuana withintent to sell, a Class E felony. He received his conviction at the conclusion of a jury trial in the Madison County Circuit Court. The trial court imposed a minimum, one-year sentence to be served with 3 0 day s in the local jail and the balance on probation. In this direct appeal, the defendant contends that bec ause the indictment against him did not specify that the amount of marijuana he was accused of possessing was greater than one-half ounce, he could properly be convicted of no offense greater than simple possession, a Class A misdemeanor. Because we find the defendant’s

argument and auth

orities unpersua

sive, we affirm t

he judgment of the t

rial court.

On March 12, 1998, officers of the Jackson Police Departmen

t and Madison County Sheriff’s Department discovered the defendant in possession of 94.4 g rams o f marijuana in six1 A forensic scientist with the Tennessee Bureau of Investigation testified that 28.35 grams equals one ounce.

2 The defendant was also indicted w i th possession of marijuana with intent to deliver. However, the assistant distr ict a t torney dismissed tha

t charge followin

g the return of the

verdict. That count of the in

dictment is not at issu

e in this appeal.

3 On July 1, 1998, subsection (g)(3) took effect, which created an additional Class C felony for marijuana possession of a certain quantity. See Tenn. Code Ann. § 39-17-417(g)(3) (Supp. 1998). Prior to that date, there wa s no Clas s C felony for marijuana possession. See Tenn. Code Ann. § 39-17-417 (1997) (amended 1998).

-2- plastic baggies. 1 Five of the baggies were contained in a black bag inside the defendant’s vehicle, and one of the baggies was on the defendant’s person. The def end ant acknowledged that the substance was marijuana.

The reafter, the defe ndant was indicte d for possession of

marijuana with inte

nt to sell. 2 The relevant count of the indictment charged, “LARRY EDWARD ENGLET . . . did unlawfully and knowingly possess w

ith the intent to sell a controlled substance, to wit: Marijuana, a Schedule IV Controlled substance, cl a ssified in §39-17-417 of the Tennessee Code Annotated, in violation of T.C.A. § 39-17-417 . . . .” The issue before the court arises because the indictment did not allege a specific amount of marijuana in the defendant’s possession.

The Crim inal Code contains two separate sections prohibiting the possession of marijuana. The lesser offense is criminalized by section 39-17-418, which prohibits the knowing possession or casual exchange of marijuana in an amount not in excess

of one-half ounce. See Tenn. Code Ann. § 39-17-418 (1997). With certain exception s not applicable to the case at bar, simp

le possession is a Class A misdemeanor. See Tenn. Code Ann. § 39-17-418(c) ( 1997). The g reater offenses were at the time of the crime and are presently defined by Code section 39-17-417, which criminalizes the knowing manufacture, de livery, sale or possession with the intent to manufacture, deliver or sell an amount of marijuana not less than one-half ounce. Compare Tenn. Code Ann. § 39-17-417(a), (g)(1) (1998) . Under the statute as it existed at the time, possession

of not lessthan one-half ounce of marijuana was a Class A, B, D or E felony, depending upon the weight of the contraband. See Tenn. Code Ann. §39-17-417(g)(1), (g)(2), (i)(13), (j)(13) (1997) (amend ed 1998). 3

In support of the defendant’s argument that he may be convicted

of only the lesser offense of simple possession because the indictment did not allege the amount of

marijuana in his possession, he relies upon the authority of State v. Hilliard , 906 S.W.2d 466 (Tenn. Crim. App. 1995). In Hilliard , the defendant challenged her conviction of Class B felony possession of cocaine because the indictment did not specify an amount of cocaine. Id . at 469. Possession o f any quantity of cocaine is criminalized by Code section 39-17-417, which differentiates between the Class

C crime for possession of less than .5 grams and the Class B crime for possessionof .5 grams or more. See Tenn. Code Ann. § 39-17-417(c)(1), (2) (1998); Hilliard , 906 S.W.2d at 469. The Hilliard court-3-

held that because the indictmen t failed to allege that part of the crime which confers an enhanced punishment on the defendant (an amount of coc

aine equal to or gr

eater than .5 gram s), it did not charge a Class B felony. Hillia rd , 906 S.W.2d at 470. Therefore, the defendant could only be convicted of the lesser, Class C felony offense. Id .; State v. Eric Sherrod Sanders
, No. 02C01-9503- CC-00060, slip op. at 5 (Tenn. Crim. App., Jackson, Nov. 15, 1995).

The distinction between Hilliard and the case at bar is that possession of marijuana, unlike possession of cocaine, is criminalized by two separate sections of the Code. That distinction is significant because the defendant in the present case was convicted of the least of the fe lony marijuana offenses defined by section 39-17-417; the next lesser offense, a misdemeanor, is contained in section 39-17-418. The indictment in this case referenced the felony Code section but not the misdemeanor Co

de section. Thus,

the question becomes whether the statutory reference is sufficient to charge the felony offense.

The state and federal constitutions require that an accused

be informed of the nature and cause of the accusation against him. See U.S. Const. amend. VI, XIV; Tenn. Const. art. 1, § 9; Statev. Hill , 954 S.W.2d 725, 727 (Tenn. 1997). “G

enerally st

ate d, an indictment is v

alid if it provides sufficient infor mation (1) to enable the accused to know the accusation to which answer is required, (2) to furnish the cou rt adeq uate basis for the entry of a prope

r judgment, and (3)

to protect the accused from

double jeopardy.” Hill , 954 S.W.2d at 727 (citations omitted). The Code requires

The indictment must state the facts constituting the offense in ordinary and concise language, without

prolixity or repetition, in such a

manner as to enable a person of

common understanding to know what is intended, and with that degree of certainty which will enable

the court, on conv

iction, to pronounc

e the proper judg

ment.
Tenn. Code Ann. § 40-13-202 (1997).

Recently, the appellate

courts have addr

essed several c

ases in which def

endants have challenged

the sufficiency

of indictments bec

ause th e inst

ruments failed to specifically allege a culpable mental state for the crime. See, e.g.
, Statev. Frederick Sledge , — S.W.3d —, No. W1994- 00005-SC-R11-DD (Tenn. Mar. 20, 2 000); State v. Carter , 988 S.W.2d 145 (Te nn. 1999); Statev. Ruff
, 978 S.W.2d 95 (Tenn. 1998); Hill , 954 S.W.2d 725. Notably, these decisions stand for the proposition that where an ind ictment complies wi

th constitutional an

d sta tuto ry notice requir

ements, the failure to specif

ically allege a c

ulpable mental sta

te is not a per se flaw. See Frederick Sledge
,

—S.W.3d at —, slip op. at 4-5 (mental state may be inferred from statutory reference and nature of conduct alleged); Carter , 988 S.W.2d at 149 (allegations which included s tatutory r eference sufficiently

alleged require

d mental state); Ruff , 978 S.W.2d at 97 (in dictme n t sufficient which referred to statutory defini

tion of crime and a

lleged conduct w

hich allow ed inference of mental state); Hill , 954 S.W.2d at 729 (mental state may be inferred from nature of conduct alleged).

Like the indictments in th

e culpable menta

l state cases, we believe that the indictment in the case at bar sufficiently chargesthe defendant with a crime. Addressing first the constitutional4 Notwithstanding our holding, we feel compelled to caution that we are not abandoning the

ruleof Hilliard . The re sult in this case is unique for two reasons. First, misdemeanor and felony marijuana possession are prohibited by separate statutes. Second, the defendant faced prosecution for the least serious of the four possible felony charges. Had the state contended that the defendant possessed an amount of marijuana which elevated him to the possibility of prosecution for one of the greater felony

offenses, Hilliard

might mandate that the defendant could be convicted of no more than the least of the felony offenses

. Likewise, were all marijuana possession offenses consolidated into one statutory provision, Hilliard might requir e that the de fendant could be prosecuted for no

more than the lesser of

all the possible offenses. Clearly, the preferred practice in drug possession cases is for the state to allege the amount of contraband possessed.

-4- concerns, the reference to the felony statute i nforme d the defendant that he was facing a felony possession charge, rather than a misdemeanor charge. Likewise, the statuto ry reference provided the court with a basis for entering a felony conviction upon a verdict or plea of guilt. Further, the statutory reference in conjunction with the other allegations of the indictment protected the defenda n t from twice being placed in jeopardy for the same crime. Further, we believe the language of the indictment met the statutory requirements by stating the char

ge in ordinary an

d concise langua

ge so that a person of common understanding would know the crime charged, and it was suffici entl y certain to enabl

e the court to ente

r a proper judgme

nt. 4

Because we hold that

the statutory reference was sufficient to charge the defendant with felony marijuana possession, the judgment of the trial court is affirmed.