IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 4, 2020 Session

STATE OF TENNESSEE v. JADARIUS SANKEVIOUS FOSTER

Appeal from the Circuit Court for Madison County

No. 19-788 Roy B. Morgan, Jr., Judge

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No. W2020-00349-CCA-R3-CD

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The Defendant, Ladarius Sankevious Foster, was convicted by a Madison County Circuit

Court jury of failure to maintain lane, possession of drug paraphernalia, and theft of 

property, and the trial court imposed an effective sentence of eleven months and twentynine days, with the Defendant to serve ten days in jail and the remainder of his sentence 

on community corrections. See Tenn. Code Ann. §§ 55-8-123, 39-17-425(a), 39-14-103. 

On appeal, the Defendant argues: (1) the evidence is insufficient to sustain his convictions 

for possession of drug paraphernalia and theft of property, and (2) the trial court failed to 

conduct an independent assessment of the fines fixed by the jury in this case. After review, 

we affirm the trial court’s judgments.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and J. ROSS DYER, J., joined.

Jessica F. Butler, Assistant Public Defender, Tennessee District Public Defenders 

Conference, Franklin, Tennessee (on appeal); George Morton Googe, District Public 

Defender; and Jeremy B. Epperson, Assistant Public Defender, Jackson, Tennessee (at 

trial), for the Defendant-Appellant, Jadarius Sankevious Foster. 

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant 

Attorney General; Jody S. Pickens, District Attorney General; and Michelle Shirley, 

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

In September 2019, the Madison County Grand Jury indicted the Defendant for

failure to maintain lane in Count 1, possession of drug paraphernalia in Count 2, theft of 

property in Count 3, and unlawful possession of a firearm in Count 4. Two days prior to 

03/26/2021
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trial, the trial court, upon motion by the State, entered an order of nolle prosequi on Count 

4.1

Trial. At the February 6, 2020 trial, John Whitney Hughes Tomlinson testified that 

he was the owner of J & H Gun Store, also known as Crossroads Outdoor, in Corinth, 

Mississippi. On August 30, 2018, Tomlinson’s store was burglarized, and ten guns were 

stolen, including a nine millimeter Glock 19 semi-automatic pistol that he received in his 

store on August 21, 2018. Video surveillance of the burglary showed “two individuals 

coming in with gloves, jumpsuit[,] and face mask on.” Tomlinson said that after 

discovering the burglary, he completed a federal firearms theft/loss report, admitted as an 

exhibit, that described and listed the serial number for each of the guns that had been stolen, 

and he submitted this form to his local police department as well as the local Alcohol, 

Tobacco, and Firearms office. Tomlinson acknowledged that it would have been possible 

for one of the burglars to sell one of the stolen guns to someone else, who would not 

necessarily know the gun was stolen. 

Tomlinson identified a receipt showing that a customer had traded the Glock 19 

pistol, which meant that Tomlinson, as the owner of the store, became the legal owner of 

that pistol. Tomlinson said he gave the customer $465 for it but would have “re-stickered” 

the Glock 19 for “around [$]550.” He confirmed that he had been compensated for the loss 

of this pistol by his insurance company. Tomlinson asserted that he never gave anyone 

consent to take, keep, possess, or exercise control over the Glock 19 handgun. 

Deputy Zach Fitzgerald of the Madison County Sheriff’s Office testified that he and 

Deputy Jason Wooley were patrolling Highway 18, a two-lane road also known as Bolivar 

Highway, the night of February 23, 2019. Deputy Fitzgerald said that his patrol cruiser 

was not equipped with a dashboard camera and that he was not wearing a body camera at 

the time he stopped the Defendant. He explained that while deputies in his office were 

allowed to purchase their own body cameras, he was not issued a body camera or required 

to wear one by the sheriff’s office. He stated that he and Deputy Wooley were riding in 

the same cruiser the night they encountered the Defendant. 

Deputy Fitzgerald said that he stopped the Defendant, who was driving a burgundy 

Nissan Maxima, just after 11:00 p.m. He stated that as he was travelling behind the 

Maxima, the Defendant “crossed over the fog line on the road which is commonly 

associated with the white line close to the side of the road” and then “he drifted over the 

white line, he came back and then went over the center line of Highway 18 and then got 

back in his lane[.]” Deputy Fitzgerald clarified that the location where the Defendant 

 

1 Notably, the defense did not file a motion to suppress the evidence challenging the legality of the 

traffic stop or the search in this case. 
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“swerved” was a “straightway” area of the road and that no other traffic was affected by 

the Defendant’s driving. He said that it was “no more than a minute” between the 

Defendant’s infraction and the traffic stop. 

Deputy Fitzgerald said that he initiated the traffic stop by activating his blue lights

and radioing his location, and the Defendant came to a stop. At the time, Deputy Fitzgerald 

could tell that the Defendant had a passenger with him in the vehicle. Upon stopping his 

patrol cruiser, Deputy Fitzgerald approached the driver’s side of the Defendant’s car, 

identified himself, and told the Defendant why he stopped him. He requested the 

Defendant’s identification and asked him if there was a reason he had just swerved, and 

the Defendant said that “his vehicle was out of line[.]” As he was talking to the Defendant, 

Deputy Fitzgerald “scanned the back seat [of the Defendant’s vehicle] with [his] flashlight 

and noticed that there was a digital scale behind the passenger’s seat in the floorboard[.]” 

Before returning to his cruiser, Deputy Fitzgerald asked the Defendant if he could ask him 

some additional questions after receiving the Defendant’s identification and the female 

passenger’s identification, and the Defendant agreed. Deputy Fitzgerald said that because

“officer safety is key,” he asked the Defendant, “Are there any firearms in the car?” and

then told him, “You’re allowed to have them unless you’re a convicted felon. We just like 

to know about it for our safety and yours[.]” The Defendant replied that there were no 

guns in his car. Deputy Fitzgerald then asked the Defendant if there were any narcotics in 

the vehicle because he had “already seen the digital scale behind the passenger’s seat.” 

The Defendant responded that there were no narcotics in his car. Next, Deputy Fitzgerald 

asked the Defendant if he was on “probation or parole for anything[,]” and the Defendant

said “he was not.” At that point, Deputy Fitzgerald returned to his cruiser and “ran a 

driver’s license check” on the Defendant, “check[ing] him for warrants out of Madison 

[County] and where he’s from, Hardeman County,” and then checking the Defendant’s 

passenger “to make sure she was clear of warrants[.]” He stated that the Defendant and his 

passenger had no outstanding warrants.

Deputy Fitzgerald returned to the Defendant’s car, informed the Defendant that he

was “going to give him a warning citation for . . . driving outside the lines,” and asked the 

Defendant to exit the vehicle. He said that after he told the Defendant that he was just 

going to give him a warning citation, the Defendant did not calm down and “stayed very 

nervous.” As the Defendant exited his vehicle, Deputy Fitzgerald told him, “Hey, I’m just 

going to pat you down for weapons” for the purpose of officer safety. Deputy Fitzgerald 

said he “patted [the Defendant] down[,] and he was clear” and then he “asked [the 

Defendant] if [he] could search his car.” 

Deputy Fitzgerald said that when he asked if he could search the Defendant’s 

vehicle, the Defendant refused to give consent. He told the Defendant, “Hey, man, I 

already see the digital scale,” and then asked him, “Is there anything illegal in your car?” 
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and the Defendant admitted, “There’s enough marijuana for a blunt in the ashtray[.]” 

Deputy Fitzgerald said that the Defendant’s admission regarding the marijuana gave him 

probable cause to search the Defendant’s vehicle, even though the Defendant had denied 

consent for him to search. Deputy Fitzgerald told the Defendant, “Look, I’m not worried 

about a little bit of weed,” and asked him, “Is there anything else inside the vehicle?” He 

said the Defendant was “still very nervous” and “looked down” and “was fidgeting with 

his hands” before the Defendant stated, “[N]o.” Deputy Fitzgerald said that because the 

Defendant was still acting nervous, he asked, “Is there a gun in this car?” and the Defendant

finally admitted that he had a gun in his vehicle. He said that during this entire 

conversation, the Defendant’s voice “was shaky.” 

Deputy Fitzgerald said that at that point, he asked the passenger to exit the car to 

ensure officer safety, and then he searched the Defendant’s vehicle. During this search, he 

found “marijuana . . . , just enough for a blunt[,]” as the Defendant had said. In addition, 

Deputy Fitzgerald observed the butt of a magazine “in between the driver’s seat and the 

center console[,]” and noted that it had been “shoved down pretty far[.]” He retrieved it 

and determined that it was a “Glock 19 Generation 5 with a 31-round mag[azine].” He 

said this pistol had “one round chambered” and “had two extra rounds” in the magazine.” 

Deputy Fitzgerald identified the digital scale that he found on the rear floorboard of 

the Defendant’s vehicle, which was admitted as an exhibit. When he was asked, based on 

his education, training and experience, about what made this digital scale drug 

paraphernalia rather than just a kitchen gadget, Deputy Fitzgerald replied:

These are used to—commonly associated with weighing narcotics. In 

the State of Tennessee, based on your amount of weight with the drug 

depends on if it’s a misdemeanor or a felony. With marijuana, anything over 

14.5 grams is a felony. So it’s commonly associated that you would weight 

your narcotics. Also, the weight depends on how much it costs. So that’s 

[what] makes [the digital scale] drug paraphernalia. 

He also asserted that drugs are commonly weighed and then packaged accordingly. 

Deputy Fitzgerald reiterated that in addition to the digital scale, he also recovered 

marijuana from the Defendant’s ashtray and the Glock handgun from inside the 

Defendant’s car. Deputy Fitzgerald next identified “a picture that [he] took of the handgun, 

the marijuana[,] and the magazine,” and this photograph, which depicted a substance

wrapped in plastic as well as a Glock pistol and magazine lying on a car seat, was admitted 

at trial. Deputy Fitzgerald said he rendered the pistol safe by locking back the slide for the 

purpose of “officer safety” and then moved it to the passenger seat with the marijuana 

before taking the photograph. He explained that the “digital scale [was] not in this picture” 
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because “[i]t was still behind the passenger’s seat” but that “everything else” he found was 

depicted in the photograph he took. When asked about what happened to the marijuana 

depicted in the photograph, Deputy Fitzgerald stated:

I did not charge [the Defendant] with the marijuana. I told him on the 

scene, I said, “Look, I’m not going to add insult to injury.” And if I’ve said 

this once, I’ve said it a thousand times. I said, “God has given me a lot of 

grace in my life, so I’m going to give you some tonight,” and [the Defendant] 

was allowed to dispose of the marijuana in the grass on the side of the road.

He said that while substances appearing to be marijuana are commonly sent to the state lab 

to be tested, he never sent the substance he recovered from the Defendant’s vehicle to a lab 

because he allowed the Defendant to dispose of it. 

Deputy Fitzgerald identified the Glock 19 that he recovered from the Defendant’s 

vehicle, and this pistol was admitted into evidence. He said that after he rendered the pistol 

safe, he asked the Defendant about it because he was “trying to figure out why [the pistol] 

was shoved so far down into the seat and why [the Defendant] was nervous[.]” He asked 

the Defendant, “Hey, is this gun stolen?” and the Defendant replied, “It’s not hot. It’s not 

hot.” Nevertheless, when Deputy Fitzgerald ran the pistol’s serial number through the 

crime information database, he found that the pistol had been reported as stolen. He stated 

that as result of these events, he took the Defendant into custody that night. 

Deputy Jason Wooley, a reserve deputy for the Madison County Sheriff’s Office,

testified that on the night of February 23, 2019, he was on patrol with Deputy Fitzgerald 

on Highway 18 in south Jackson. They noticed “a dark colored Nissan Maxima” pass by 

with the Defendant “kind of leaned back or pushed back in the seat in a way to kind of hide 

his face from us by the center post,” which was “what made us draw our attention to him. 

Deputy Wooley confirmed that the Defendant “was not maintaining his lane” and “was 

drifting over the fog line and across the center line,” which made Deputy Fitzgerald initiate 

a traffic stop. As Deputy Fitzgerald approached the driver’s side of the vehicle, Deputy 

Wooley approached the vehicle from the passenger side, which enabled him to closely 

observe the Defendant and the female passenger as Deputy Fitzgerald talked to the 

occupants of the vehicle and obtained their driver’s licenses. Deputy Wooley said that he 

was actually standing behind the center post of the Defendant’s car, where he could look 

through the rear passenger window to see what the Defendant and the passenger were 

doing. When Deputy Fitzgerald returned to his cruiser to check if the Defendant and his

passenger had any outstanding warrants, Deputy Wooley saw the Defendant “checking his 

rearview mirror to make sure [Deputy Fitzgerald] wasn’t coming back, and [the Defendant]

took his right hand and started trying to push something between the driver’s seat and 

center console of the car.” Deputy Wooley added, “I couldn’t see what it was, but [the 
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Defendant] was . . . making sure whatever it was was down below the seat where nobody

could see it.” He said that when Deputy Fitzgerald asked the Defendant and the passenger 

to exit the vehicle, he got the passenger out and took her to the back of the Defendant’s 

vehicle. As he remained with the passenger, the Defendant was put in handcuffs and placed 

in the back of the patrol cruiser while Deputy Fitzgerald searched the Defendant’s vehicle. 

The Defendant did not testify at trial and did not call any witnesses to testify on his 

behalf. 

At the conclusion of trial, the jury convicted the Defendant as charged in Counts 1, 

2, and 3. The jury did not fix any fine in Count 1 but fixed $150.00 fine for the possession 

of drug paraphernalia conviction in Count 2 and a $500.00 fine for the theft of property 

conviction in Count 3. 

Sentencing. At the beginning of the sentencing hearing, the trial court recognized 

that these convictions were “all misdemeanor charges,” that the Defendant had “no prior 

criminal history,” and that “there were really no aggravating circumstances at the time of 

the stop and the arrest.” The court also noted that “[t]he jury ha[d] answered the question 

on fines, as the Defendant had the right to have them do.” The court said it was going to 

consider full suspension of the Defendant’s sentence with proper supervision, but it wanted 

the Defendant to have a drug screen that day.

When the trial court asked the Defendant, who was twenty years old, if he had a job, 

the Defendant stated that he had “a interview Monday in Murfreesboro, Tennessee,” and 

the court replied, “Of course, I wish you luck with [the interview], but that’s not a job.” 

The Defendant explained that he was interviewing in Murfreesboro because he had a 

girlfriend who lived there, and defense counsel informed the court that the Defendant was

currently living with his mother in Bolivar, Tennessee. In response to questioning from 

the trial court, the Defendant stated that he had been previously employed at two different 

jobs for approximately three weeks each. The trial court asked if the Defendant would 

have a place to live if he were offered the job in Murfreesboro, and the Defendant replied 

that he did have a place to live, although he currently lived at home with his mother in 

Bolivar. 

During the hearing, Deputy Fitzgerald stated that the Glock pistol at issue in this 

case had been “used in a shooting the night before [the Defendant’s arrest]” and that the 

“[b]allistics did match.” The State offered that the Defendant “was scheduled to go to the 

Hardeman County grand jury” and that although she was unsure “about the status of that 

indictment, . . . the pending charges were two counts of attempted murder.” 
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During a recess in the sentencing hearing, the Defendant tested negative for drugs. 

The trial court stated that “[t]he fines [fixed by the jury] will stand.” The court then noted: 

[The Defendant] asked for a jury trial, and that included fine assessment, so 

we do have the fines of $500 on the theft and $150 on the paraphernalia, plus 

his jury costs and court costs. So, he going to owe a lot of money. He must 

set up payments. He doesn’t have a job.

The court informed the Defendant that “the minimum is $100 per month, within 30 days 

of today” but cautioned, “You’ll never get everything paid off in 11 months and 29 days if 

you don’t pay more than $100 a month, but that’s the minimum payment.” The Defendant 

acknowledged that he understood about the fines and costs. The trial court ordered the 

Glock pistol “forfeited to the law enforcement agency that took it at the time of his arrest[,]” 

and noted that this pistol was “evidence in another crime at this point that has allegedly 

occurred, the night before [the Defendant was arrested in this case.]” 

At the conclusion of the hearing, the trial court imposed concurrent sentences of 

thirty days for the failure to maintain lane conviction in Count 1 and eleven months and 

twenty-nine days for each of the convictions for possession of drug paraphernalia and theft 

of property in Counts 2 and 3. Although the trial court ordered the sentences in Count 1 

and Count 3 served on community corrections, the court in Count 2 ordered the Defendant 

to serve ten days of “shock incarceration day for day” in jail with the remainder of the

sentence served on community corrections. When the Defendant stated that he had already 

served “over 10 days” in jail, the trial court noted, “He might have his credit,” and then 

assured the Defendant, “They’ll give you your credit when you get down there.” 

Thereafter, the Defendant filed a timely notice of appeal. 

ANALYSIS

I. Sufficiency of the Evidence. The Defendant argues that the evidence is 

insufficient to sustain his convictions for possession of drug paraphernalia and theft of 

property. The State responds that the proof is sufficient to support both convictions. We 

agree with the State. 

“Because a verdict of guilt removes the presumption of innocence and raises a 

presumption of guilt, the criminal defendant bears the burden on appeal of showing that 

the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279 

S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)). 

When reviewing the sufficiency of the evidence, this court must “determine the elements 

that the State must prove to establish the offense” and then “analyze all of the evidence 

admitted at trial in order to determine whether each of the elements is supported by 
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adequate proof.” State v. Stephens, 521 S.W.3d 718, 723-24 (Tenn. 2017). 

 “Appellate courts evaluating the sufficiency of the convicting evidence must 

determine ‘whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court 

evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest 

legitimate view of the evidence and all reasonable inferences that may be drawn from that 

evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318 

S.W.3d 850, 857 (Tenn. 2010)).

Guilt may be found beyond a reasonable doubt where there is direct evidence, 

circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691 

(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review for 

sufficiency of the evidence “‘is the same whether the conviction is based upon direct or 

circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (quoting 

Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the credibility of 

the witnesses, determine the weight given to witnesses’ testimony, and reconcile all 

conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008) (citing 

Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)); see State v. Bland, 958 

S.W.2d 651, 659 (Tenn. 1997) (“Questions concerning the credibility of witnesses, the 

weight and value to be given the evidence, as well as all factual issues raised by the 

evidence are resolved by the trier of fact.”). Moreover, the jury determines the weight to 

be given to circumstantial evidence, and the inferences to be drawn from this evidence, and 

the extent to which the circumstances are consistent with guilt and inconsistent with 

innocence, are questions primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State 

v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the 

evidence, this court “neither re-weighs the evidence nor substitutes its inferences for those 

drawn by the jury.” Wagner, 382 S.W.3d at 297 (citing Bland, 958 S.W.2d at 659). 

A. Possession of Drug Paraphernalia. First, the Defendant argues that the 

evidence is insufficient to sustain his conviction for possession of drug paraphernalia. He 

claims that his possession of a digital scale, without proof that it was used in connection 

with illegal drugs, is not proof of possession of drug paraphernalia. 

Tennessee Code Annotated section 39-17-425, which defines the offense of 

possession of drug paraphernalia, provides in pertinent part:

[I]t is unlawful for any person to use, or to possess with intent to use, drug 

paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, 
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compound, convert, produce, process, prepare, test, analyze, pack, repack, 

store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the 

human body a controlled substance or controlled substance analogue in 

violation of this part.

Tenn. Code Ann. § 39-17-425(a)(1). 

In addition, drug paraphernalia is defined as follows: 

“Drug paraphernalia” means all equipment, products and materials of any 

kind which are used, intended for use, or designed for use in planting, 

propagating, cultivating, growing, harvesting, manufacturing, compounding, 

converting, producing, processing, preparing, testing, analyzing, packaging, 

repackaging, storing, containing, concealing, injecting, ingesting, inhaling or 

otherwise introducing into the human body, a controlled substance as defined 

in subdivision (4). “Drug paraphernalia” includes, but is not limited to:

(A) Isomerization devices used, intended for use, or designed for use in 

increasing the potency of any species of plant that is a controlled substance;

(B) Testing equipment used, intended for use, or designed for use in 

identifying, or in analyzing the strength, effectiveness or purity of controlled 

substances; and

(C) Objects used, intended for use, or designed for use in ingesting, inhaling, 

or otherwise introducing marijuana, marijuana concentrates, marijuana oil, 

cocaine, hashish, or hashish oil into the human body, such as:

(i) Metal, acrylic, glass, stone, or plastic pipes with or without 

screens, permanent screens, hashish heads, or punctured metal 

bowls;

(ii) Water pipes;

(iii) Carburetion tubes and devices;

(iv) Smoking and carburetion masks;

(v) Chamber pipes;

(vi) Carburetor pipes;
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(vii) Electric pipes;

(viii) Chillums;

(ix) Bongs; and

(x) Ice pipes or chillers[.]

Id. § 39-17-402(12). 

As to the determination of whether an object is drug paraphernalia, Code section 

39-17-424 provides:

In determining whether a particular object is drug paraphernalia as defined 

by § 39-17-402, the court or other authority making that determination shall, 

in addition to all other logically relevant factors, consider the following:

(1) Statements by the owner or anyone in control of the object concerning its 

use;

(2) Prior convictions, if any, of the owner or of anyone in control of the object 

for violation of any state or federal law relating to controlled substances;

(3) The existence of any residue of controlled substances on the object;

(4) Instructions, oral or written, provided with the object concerning its use;

(5) Descriptive materials accompanying the object which explain or depict 

its use;

(6) The manner in which the object is displayed for sale;

(7) The existence and scope of legitimate uses for the object in the 

community; and

8) Expert testimony concerning its use.

Id. § 39-17-424.
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In order to establish a violation of Code section 39-17-425(a)(1), which defines the 

offense of possession of drug paraphernalia, the State must prove the following three 

elements beyond a reasonable doubt: “(1) that the defendant possessed an object; (2) that 

the object possessed was classifiable as drug paraphernalia; and (3) that the defendant 

intended to use that object for at least one of the illicit purposes enumerated in the statute.” 

State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001) (citing State v. Mallard, 40 S.W.3d 473, 

486 (Tenn. 2001)). 

Here, the “object” is the digital scale found in the rear floorboard of the Defendant’s 

vehicle. The Defendant concedes that the first element of this offense is met because the 

digital scale was within his constructive possession. See State v. Williams, 623 S.W.2d 

121, 125 (Tenn. Crim. App. 1981). However, he argues there was no proof of the second

element, that the digital scale was classifiable as drug paraphernalia, or the third element,

that he intended to use the digital scale for at least one of the illicit purposes enumerated in 

the statute. See Ross, 49 S.W.3d at 846. 

The Defendant asserts that nothing in the definition of drug paraphernalia in Code 

section 39-17-402(12) has anything to do with “scales, digital scales, weighing, or 

weighing equipment” and that “contrary to Deputy Fitzgerald’s trial testimony—a person’s 

possession of a digital scale or scales, by itself, is not legally sufficient proof of possession 

of drug paraphernalia.” While the Defendant acknowledges that digital or electronic scales 

have been held to be drug paraphernalia in other cases, he claims this was only when other 

circumstances existed. See id. at 846-47 & n.10 (concluding that the evidence was 

sufficient to sustain the defendant’s conviction for possession of drug paraphernalia when 

(1) the defendant constructively possessed “electronic scales and plastic sandwich bags[,]” 

(2) an officer testified that electronic sales are “commonly used to weigh narcotics” in 

“bulk” sales of crack cocaine and that “plastic bags are commonly used to package crack 

cocaine, usually for resale[,]” (3) the scales and plastic bags were found “in close proximity 

to . . . a large amount of crack cocaine,” and (4) “several ‘rocks’ of crack cocaine were 

already packaged for resale[.]”); see also State v. Christopher R. Rickman, No. W2008-

02012-CCA-R3-CD, 2009 WL 3719458, at *4 (Tenn. Crim. App. Nov. 5, 2009) (holding 

that pipes with drug residue, baggies, and scales” were “drug paraphernalia” when “[t]he 

presence of residue on the pipes support[ed] the inference that they had been used in 

smoking the methamphetamine”); State v. Greg Harris, No. E2003-02834-CCA-R3-CD, 

2005 WL 419082, at *8 (Tenn. Crim. App. Feb. 23, 2005) (holding that “the glass jars, 

microwave, scales, and baggies” were “drug paraphernalia intended for use in converting 

or processing, and packing or storing the cocaine” when these items were found with more 

than 300 grams of cocaine); accord State v. Tyson Reed King, No. M2017-01594-CCAR3-CD, 2018 WL 4382074, at *3-4 (Tenn. Crim. App. Sept. 14, 2018) (concluding that “a 

single plastic sandwich bag” containing MDMA was “drug paraphernalia” when the 
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“baggie . . . was the item which the Defendant used to contain MDMA” and the existence 

of MDMA was established by a “drug field test”).

The Defendant contends that none of these additional circumstances were present 

in his case. He asserts that (1) the digital scale was not tested for the presence of drug 

residue, (2) none of the State’s witnesses testified that they observed a residue on the scale, 

(3) the Defendant did not make any statements to police about the scale’s use or intended 

use, and (4) Deputy Fitzgerald acknowledged that scales like the one found in the 

Defendant’s possession were “kitchen gadget[s]” that could be found in any household.

The Defendant asserts that despite the lack of evidence of packed or repacked drugs, the 

prosecutor, during her questioning of Deputy Fitzgerald, emphasized that the digital scale 

found in the Defendant’s vehicle should be considered “drug paraphernalia” because such 

scales are commonly used to “weigh[] and package[]” narcotics. He also asserts that this

prosecutor told the jury during closing arguments that it could find that the digital scale 

was “drug paraphernalia” because (1) “drugs are often weighed and packaged according[] 

to their weight,” (2) there was “the presence of marijuana in the vehicle,” and (3) the jury 

instructions listed “packag[ing] and repackag[ing] drugs as one potential use for drug 

paraphernalia.” 

The Defendant insists that in his case, there was no evidence of any packaged or 

repackaged drugs and no indication that the digital scale was used or intended to be used 

for the weighing and packaging of drugs. He asserts that although Deputy Fitzgerald 

claimed the Defendant had enough marijuana in his ashtray for one “blunt” or “marijuana 

cigarette,” he was never arrested or charged with possession of marijuana or any other 

drug. He also contends that the “substance” that Deputy Fitzgerald allegedly allowed him 

to dispose of “in the grass on the side of the road” was never recovered or tested by the 

Tennessee Bureau of Investigation and was never field tested by the officers at the scene. 

The Defendant argues that assuming that this substance was actually marijuana, it would 

have been an amount sufficient only for personal use. He then asserts the State’s proof 

failed to establish that “digital scales are commonly used for personal amounts of 

marijuana” and showed only that the “scales are commonly used for weighing and 

packaging drugs to determine their felony or misdemeanor amount and cost, which is 

necessary only when the drugs are intended for resale.” The Defendant states that he “was 

not found in possession of a large amount of marijuana, plastic bags, or cash, as might tend 

to indicate the weighing, packaging, repackaging, or selling of drugs.” Accordingly, he 

maintains that “the mere presence of a digital scale—without any proof of the presence of 

illegal drugs or drug residue, without any proof of drug packaging or selling, and without 

any proof that the scale was being used for an illicit purpose—is not legally sufficient 

evidence to support a conviction for possession of drug paraphernalia.” 
- 13 -

First, as to the claim that the State failed to prove the digital scale was classifiable 

as drug paraphernalia, we note that drug paraphernalia is defined, in pertinent part, as “all 

equipment, products and materials of any kind which are used, intended for use, or 

designed for use in . . . preparing, . . . packaging, [or] repackaging . . . a controlled 

substance[.]” Tenn. Code Ann. § 39-17-402(12) (emphasis added). This court has 

routinely held that scales are classifiable as drug paraphernalia. See Ross, 49 S.W.3d at 

846 (concluding that “[t]he evidence in the record demonstrates that the electronic scales 

and plastic sandwich bags could be used as drug paraphernalia”); State v. Gregory Gill, 

No. W2018-00331-CCA-R3-CD, 2019 WL 549651, at *12 (Tenn. Crim. App. Feb. 11, 

2019) (concluding that three sets of scales and plastic baggies found in the defendant’s 

rental car were drug paraphernalia in light of the officer’s testimony that individuals often 

use plastic bags and digital scales to measure and package drugs for illegal sale and 

distribution and the fact that marijuana and cocaine were also found in the rental vehicle);

State v. Jerry Floyd Caldwell, No. M1999-02363-CCA-R3-CD, 2001 WL 818207, at *5

(Tenn. Crim. App. July 20, 2001) (concluding that the scales, which were covered with a 

residue of white powder and were found with baggies, ties, a cut straw, and nine baggies 

of cocaine, were drug paraphernalia); see also Christopher R. Rickman, 2009 WL 3719458, 

at *4; Greg Harris, 2005 WL 419082, at *8.

The Defendant asserts that the digital scale is not drug paraphernalia because he 

“was not found in possession of a large amount of marijuana, plastic bags, or cash, as might 

tend to indicate the weighing, packaging, repackaging, or selling of drugs.” While he 

claims that the State’s proof failed to establish that “digital scales are commonly used for 

personal amounts of marijuana,” we disagree. 

Initially, we note that offense of possession of drug paraphernalia does not require 

that the object at issue be used in large-scale drug operations involving the packaging and 

repackaging of substantial amounts of drugs. In fact, the definition and examples of drug 

paraphernalia provided in Code section 39-17-402(12) reference certain items directly

related to the personal use of drugs. Moreover, despite the Defendant’s claims to the 

contrary, the State’s proof did show that digital scales are commonly used for personal 

amounts of controlled substances. At trial, Deputy Fitzgerald testified, based on his 

education, training, and experience, that digital scales like the one found in the Defendant’s 

vehicle are commonly used to weigh narcotics prior to packaging them, either to determine 

the cost of a drug or to determine whether the possession of a certain amount of a drug

would be a misdemeanor or felony offense. Deputy Fitzgerald specifically noted that 

“[w]ith marijuana, anything over 14.5 grams is a felony.” This proof is very consistent 

with the use of digital scales to weigh personal amounts of a controlled substance prior to 

packaging or repackaging it or in order to prepare a controlled substance prior to carrying 

or travelling with it. Furthermore, Deputy Fitzgerald testified that the Defendant was 

extremely nervous during the entirety of the traffic stop and that although the Defendant 
- 14 -

repeatedly denied having drugs or firearms in his car, he finally admitted to possessing 

both marijuana and a handgun inside his vehicle. Deputy Fitzgerald’s search revealed not 

only the digital scale in the Defendant’s car but also marijuana wrapped in plastic in the 

Defendant’s ashtray and a stolen, loaded Glock pistol, and both the marijuana and the pistol 

were depicted in the photograph he took at the scene that was admitted at trial. Given this 

evidence, a rational jury could have inferred that the Defendant used or intended to use the

digital scale to prepare, package, or repackage a controlled substance, including the 

marijuana found in his car. Accordingly, we conclude that the record supports the jury’s 

determination that the digital scale found in the Defendant’s car is classifiable as drug 

paraphernalia pursuant to Code section 39-17-402(12). 

Second, we address the Defendant’s claim that the State failed to prove that he 

intended to use the digital scale for at least one of the illicit purposes enumerated in Code 

section 39-17-425(a)(1). The “illicit purposes” in the statute include the following, in 

pertinent part: “to . . . prepare, . . . pack [or] repack . . . a controlled substance[.]” Tenn. 

Code Ann. § 39-17-425(a)(1). Although the Defendant argues on appeal that the State 

failed to prove that he intended to use the scale for an illicit purpose, we have already 

summarized the substantial proof offered by the State on this issue. In addition to Deputy 

Fitzgerald’s testimony, the jury was free to consider that the Defendant never provided any 

proof of an innocent explanation for the presence of the digital scale in his car and never

presented any evidence that the substance depicted in the admitted photograph was not 

marijuana. As to Deputy Fitzgerald’s testimony concerning the Defendant’s admissions to 

possessing marijuana, “[i]t was the responsibility of the jury to determine whether [the 

Defendant’s] statements were made, whether they were truthful, and what weight the 

statements should have been given in determining guilt or innocence.” State v. Litton, 161 

S.W.3d 447, 459 (Tenn. Crim. App. 2004); 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 

§ 42.11(a) (Prior Statement of the Defendant). While no proof was presented showing that 

the digital scale contained drug residue, there was no requirement that the scale actually 

contain drug residue in order for the State to prove the Defendant used or intended to use 

the scale to weigh a controlled substance, including marijuana. The jury, by its verdict, 

accredited Deputy Fitzgerald’s testimony about the Defendant’s admissions to the 

marijuana as well as Deputy Fitzgerald’s testimony that digital scales are commonly used 

to weigh personal amounts of drugs. Given all of the evidence presented at trial, a rational 

jury could have found that the Defendant used or intended to use the digital scale to weigh

a controlled substance prior to packing or repacking it or in order to prepare a controlled 

substance before carrying or travelling with it, either to determine the cost of a controlled 

substance during purchase or to avoid felony charges for possessing a controlled substance 

above a certain weight. See Tyson Reed King, 2018 WL 4382074, at *2 (“Drug offense 

charges are classified in part by weighing the amount of the drug in possession[.]”). In 

determining whether the evidence is sufficient to sustain this conviction, we decline the 

Defendant’s entreaties for us to overturn the jury’s factual findings on appeal. See Bland, 
- 15 -

958 S.W.2d at 659. We also reject the Defendant’s requests for us to reweigh the evidence 

or to substitute our inferences for those drawn by the jury. See Wagner, 382 S.W.3d at 

297. Because a rational jury could have determined that the Defendant used or intended to 

use the digital scale for the illicit purpose of “prepar[ing], . . . pack[ing], [or] repack[ing] 

. . . a controlled substance,” we conclude that the evidence, when viewed in the light most 

favorable to the State, is sufficient to sustain the Defendant’s conviction for possession of 

drug paraphernalia. 

B. Theft of Property. The Defendant also contends that the evidence is insufficient 

to sustain his conviction for theft of property. He claims that his possession of a handgun 

that is determined to be stolen, without any proof of how it was stolen or obtained, is not 

proof of theft of the handgun. The Defendant argues that “the time between the theft and 

[his] possession [of the gun]—almost six months to the day—is too attenuated for the gun 

to be deemed ‘recently stolen goods.’” He also asserts that “the distance between the theft 

and [his] possession [of the gun]—nearly 50 miles, which is approximately an hour’s 

drive—further separates [his] possession from the theft itself.” The Defendant argues that 

there was no proof he knew the gun had been stolen, much less that he had been involved 

in the theft, and asserts that he was not found in possession of “a baseball bat, gloves, 

jumpsuit, or face mask,” which were the items used by the two unidentified individuals 

who burglarized Tomlinson’s gun store. He contends that “[w]hen all these circumstances 

are viewed together, no reasonable juror could have concluded, beyond a reasonable doubt, 

that [he] was guilty of theft merely because he possessed a previously stolen handgun.” 

In order to establish a violation of Code section 39-14-103, which defines the 

offense of theft of property, the State must prove the following three elements beyond a 

reasonable doubt: “(1) the defendant knowingly obtained or exercised control over 

property; (2) the defendant did not have the owner’s effective consent; and (3) the 

defendant intended to deprive the owner of the property.” Tenn. Code Ann. § 39-14-103; 

State v. Gentry, 538 S.W.3d 413, 422 (Tenn. 2017). Significantly, “‘theft of property’ [is] 

defined in terms of knowingly obtaining or exercising control over property without the 

owner’s consent and with the intent to deprive the owner of the property.” State v. James, 

315 S.W.3d 440, 450 (Tenn. 2010) (citing Tenn. Code Ann. § 39-14-103) (emphasis 

added). Following the 1989 enactment of the current theft of property statute in Code 

section 39-14-103, larceny and other offenses were consolidated into a single “theft of 

property” offense, meaning that “[t]here is no difference between the actual larceny and 

either receiving or concealing the stolen property.” Id.; Tenn. Code Ann. § 39-14-101 

(stating that theft under the 1989 statute includes “the separate offenses referenced before 

1989 as embezzlement, false pretense, fraudulent conversion, larceny, receiving or 

concealing stolen property, and other similar offenses.” (emphasis added)); cf. Tenn. Code 

Ann. §§ 39-3-1101, -1112 (1982). Under the current consolidated theft statute, “‘the 

critical inquiry is thus twofold: whether the actor had control of the property, no matter 
- 16 -

how he got it, and whether the actor’s acquisition or use of the property was authorized.’” 

Gentry, 538 S.W.3d at 423 (quoting Model Penal Code Commentaries at 166). 

The unsatisfactorily explained possession of recently stolen property, in light of the 

surrounding facts and circumstances, creates a permissible inference2that the possessor

stole the property or knew that it was stolen.

3

 James, 315 S.W.3d at 450-52; see Bush v. 

State, 541 S.W.2d 391, 394 (Tenn. 1976); State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. 

Crim. App. 1995); see also State v. Trenton Ray Forrester, No. W2018-01947-CCA-R3-

CD, 2019 WL 4051801, at *3 (Tenn. Crim. App. Aug. 27, 2019). Such “[i]nferences from 

recently stolen property have a long history and widespread acceptance.” James, 315 

S.W.3d at 448 n.5. The jury may choose to apply this inference, even when presented with 

contradictory evidence or the defendant’s contrary explanation. State v. Land, 681 S.W.2d 

589, 591 (Tenn. Crim. App. 1984); see Bush, 541 S.W.2d at 395. Logically, a defendant’s 

failure to provide any proof explaining his or her possession of the recently stolen property

is also a circumstance from which the jury can draw the inference that the defendant stole 

the property or knew that it was stolen. State v. Veach, 456 S.W.2d 650, 652 (Tenn. 1970);

Myers v. State, 470 S.W.2d 848, 318-19 (Tenn. Crim. App. 1971); State v. Andrew 

William Byers, No. 01C01-9601-CC-00002, 1997 WL 488621, at *5 (Tenn. Crim. App. 

Aug. 22, 1997); State v. Wallace Eugene Steadman, 1987 WL 5545, at *2 (Tenn. Crim. 

App. Jan. 23, 1987); see James, 315 S.W.3d at 453. The term “recently” is a relative 

concept that “depends upon the nature of the property and all of the facts and circumstances 

 

2 We note that “[g]enerally speaking, ‘a permissive inference is not a violation of due process 

because the State still has the burden of persuading the jury that the suggested conclusion should be inferred 

based on the predicate facts proved.’” James, 315 S.W.3d at 450 (quoting Estelle v. McGuire, 502 U.S. 62, 

78-79 (1991) (O’Connor, J., concurring & dissenting)). 

3 A different, more rigorous standard exists with regard that to the inference of burglary that arises

from the possession of recently stolen property. As noted in James, “[T]he better rule is to permit the jury 

to infer a burglary from possession of recently stolen property only when there exists a rational connection 

between possession [of the stolen property] and participation [in the burglary], when guilt more likely than 

not flows from possession, and, importantly, when there is some other evidence corroborating the burglary 

that warrants the inference.” James, 315 S.W.3d 440 (Tenn. 2010); see 2 Wharton’s Criminal Law & 

Procedure § 411 (1st ed. 1957) (“While the possession of recently stolen goods gives rise to an inference 

that the possessor has stolen the goods, it is not ordinarily proof or prima facia evidence of burglary. There 

should be some evidence of guilty conduct besides the bare possession of the stolen property, before the 

inference of burglary be superadded to that of larceny.”); 13 Am. Jur. 2d Burglary § 48 (“A defendant’s 

possession of recently stolen property is sufficient to support a burglary conviction if there is a rational 

connection between his or her recent possession of property stolen in the burglary and his or her 

participation in the burglary; the defendant’s guilt of burglary more likely than not flows from his or her

recent, unexplained possession of the burglary proceeds, and there is evidence corroborating the defendant’s 

guilt. . . . However, the mere possession of recently stolen goods does not constitute prima facie evidence 

of an unlawful entry by the possessor.”). 
- 17 -

shown by the evidence in the case.” State v. Anderson, 738 S.W.2d 200, 202 (Tenn. Crim. 

App. 1987). 

Although the Defendant acknowledges that a jury may infer theft from proof of 

possession of recently stolen property, he contends that “the mere act of possession is rarely 

sufficient, by itself, to invoke this inference. As support, the Defendant cites the following 

language from Bush v. State: 

The evidence of possession, sufficient to invoke the presumption, is seldom, 

if ever, alone. It necessarily establishes the time and distance relationship 

between the burglary or theft and the possession by defendant. Frequently 

the defendant’s proximity to the place of taking and his opportunity or lack 

of opportunity to have committed the theft are revealed by some 

circumstance accompanying the proof of possession. In short, the evidence 

of possession is almost inevitably accompanied by facts that either increase 

or decrease the degree of probability. Thus the evidence of possession 

sufficient to invoke the presumption will vary widely from case to case; and 

at one end of the spectrum, the degree of probability that defendant 

committed the theft will be so strong that a clear and cogent explanation may 

be necessary to convince a jury that the presumption has been overcome, 

while at the other end of the spectrum, a reasonable explanation of much less 

probative value will suffice.

541 S.W.2d at 396.

In this case, during a hearing outside the presence of the jury and after the defense’s

motion for judgment of acquittal, the trial court informed the parties that it was planning 

to provide a jury instruction regarding the inference of theft from the possession of recently 

stolen property. The court provided both parties with the specific language of the jury

instruction, and the Defendant’s attorney stated that he had “[n]o objection” to this 

instruction. Later, after instructing the jury on the theft of property offense, the trial court 

provided the following instruction to the jury regarding the inference of theft that arises 

from a defendant’s possession of recently stolen property, which closely mirrors the pattern 

instruction:

Now, ladies and gentlemen, if you find beyond a reasonable doubt 

from the evidence in this case that the property in question had been recently 

stolen and that soon thereafter this same property was discovered in the 

exclusive possession of the Defendant, this possession, unless satisfactorily 

explained, is ordinarily a circumstance from which you may reasonably draw 

an inference that the Defendant gained possession through theft. However, 
- 18 -

you are never required to make this inference, or these inferences. It is for 

you to determine whether the facts and circumstances shown by the evidence 

in the case warrant any inference which the law permits you to draw from 

the possession of recently stolen property. When the evidence is offered that 

the Defendant was in possession of recently stolen property, the Defendant 

has the right to introduce evidence that he came into possession of the 

property lawfully or possession may be satisfactorily explained through other 

circumstances or other evidence independently of any testimony or evidence 

offered by the Defendant. In considering whether possession of recently 

stolen property has been satisfactorily explained, you are reminded that in 

the exercise of constitutional rights, the accused need not take the witness 

stand and testify. 

The term [“]recently[”] is a relative term and has no fixed meaning. 

Whether a property may be considered as recently stolen depends upon the 

nature of the property and all the facts and circumstances shown by the 

evidence in this case. The longer the period of time since the theft, the more 

doubtful becomes the inference which may be drawn for unexplained 

possession.

The correctness of the inference and the weight to be given any 

explanation that may be shown by the evidence are matters that must be 

determined by you, and you are not bound to accept them. You must weigh 

all the evidence presented as to the Defendant’s alleged possession of the 

property in question and decide in light of all the facts and circumstances in 

the case whether any inference is warranted. You are reminded that the 

burden of proving the Defendant’s guilt of the offense beyond a reasonable 

doubt remains upon the State of Tennessee. 

See 7 Tenn. Prac. Pattern Jury Instr. T.P.I.—Crim. 42.20 (Inference from possession of 

recently stolen property). 

The Defendant asserts that he was not arrested “until six months after the break-in 

at the gun store, when he was stopped for an unrelated traffic violation nearly 50 miles 

away in Bolivar, Tennessee.” He argues that the differences in time and place between the 

burglary of the gun store and his possession of the stolen Glock, as well as the “highly 

transferable” nature of the handgun, make the evidence insufficient to sustain his theft 

conviction. Interestingly, the record shows not only that the Defendant had “no objection” 

to the trial court’s instruction on the inference but also that the Defendant never filed a 

motion for new trial challenging this inference instruction. Consequently, the Defendant 

has waived any challenge to the inference instruction itself. See Tenn. R. Crim. P. 30(b); 
- 19 -

State v. Faulkner, 154 S.W.3d 48, 58 (Tenn. 2005). In any case, we recognize that the trial 

court properly instructed the jury that it was not required to make this inference, that the 

Defendant had a right not to testify at trial, and that the State had the burden of proving the 

Defendant’s guilt beyond a reasonable doubt. See James, 315 S.W.3d at 454. The jury, 

after being properly instructed and fully informed of the differences in time and location 

between the burglary and the Defendant’s possession of the stolen handgun, ultimately 

found the Defendant guilty beyond a reasonable doubt of theft of property. Cf. State v.

Jerry Sherrill, II, No. W2013-01166-CCA-R3-CD, 2014 WL 2547775, at *11-12 (Tenn. 

Crim. App. May 30. 2014) (concluding that there was no error in the trial court’s inference 

instruction where the defendant was found in possession of a stolen Camaro nearly seven 

months after it had been stolen). We decline the Defendant’s request for us to re-weigh 

the evidence or to substitute our inferences for those drawn by the jury. Wagner, 382 

S.W.3d at 297. As we will explain, the evidence is sufficient to sustain the Defendant’s 

theft conviction.

The Defendant also claims that the evidence is “legally insufficient to establish any 

degree or probability that [the Defendant] committed the theft.” He contends that while 

the State’s proof showed that ten guns had been stolen from “J & H Guns” in Corinth, 

Mississippi by two unidentified individuals, neither the Defendant nor his female passenger

were ever alleged to be responsible for this crime. He adds that only one of the ten pistols 

stolen was found in his possession and that he was never found in possession of “a baseball 

bat, gloves, jumpsuit, or face mask,” which were the items used by the two unidentified 

individuals who burglarized the gun store. However, as the previous explanation of the 

current consolidated theft statute makes clear, a defendant does not have to steal the 

property from the victim in order to be convicted of theft of property. As we will more 

fully develop below, the evidence is sufficient to show that the Defendant, at a minimum, 

exercised control over the Glock handgun with intent to deprive the owner of the property 

and without the owner’s effective consent. See Tenn. Code Ann. § 39-14-103; Gentry, 538 

S.W.3d at 423 (Under the current consolidated theft statute, “the critical inquiry is thus 

twofold: whether the actor had control of the property, no matter how he got it, and whether 

the actor’s acquisition or use of the property was authorized.” citation and quotation marks 

omitted)). 

The evidence, when viewed in the light most favorable to the State, showed that a 

nine millimeter Glock 19 semi-automatic pistol, along with nine other guns, was stolen 

from John Whitney Hughes Tomlinson’s gun store during a burglary on August 30, 2018. 

Tomlinson stated that he never gave anyone consent to take, to keep, to possess, or to 

exercise control over the Glock pistol. The Defendant was in possession of the stolen 

Glock when he was arrested the night of February 23, 2019, less than six months after the 

burglary of Tomlinson’s gun store. Deputy Wooley testified at trial that he saw the 

Defendant “trying to push something between the driver’s seat and center console of the 
- 20 -

car” when Deputy Fitzgerald returned to his cruiser to check the Defendant and his 

passenger for outstanding warrants. Deputy Fitzgerald testified that the Defendant was 

extremely nervous during the entirety of the traffic stop, even after he was informed that 

he would not receive a ticket, and that the Defendant lied to him at least twice about having 

a firearm before finally acknowledging that he had a gun in his vehicle. During the search 

of the Defendant’s vehicle, Deputy Fitzgerald observed the butt of handgun magazine “in 

between the driver’s seat and the center console[,]” and noted that it had been “shoved 

down pretty far[.]” In an attempt to determine why the gun had been pushed so far down 

between the seats and why the Defendant was so nervous, Deputy Fitzgerald asked the 

Defendant if the handgun was stolen, and the Defendant replied, “It’s not hot. It’s not hot.” 

Deputy Fitzgerald later determined that the gun in the Defendant’s vehicle was the Glock 

19 that had been stolen from Tomlinson’s gun store. 

The aforementioned evidence raised the logical inference to the jury that the 

Defendant was guilty of the theft offense because he either stole the Glock pistol or knew 

it was stolen and intended to deprive the owner of it. James, 315 S.W.3d at 453; 

Christopher R. Rickman, 2009 WL 3719458, at *3. Because the Defendant provided no 

proof explaining his possession of the stolen gun at trial, the State’s evidence went

unrefuted, and the inference of the Defendant’s guilty knowledge was not negated. We 

conclude that evidence of the Defendant’s possession of the stolen gun, when considered 

along with his attempt to hide the gun from law enforcement, his dishonesty about having 

a gun in his car, his extreme nervousness even after being informed that he would not 

receive a ticket, his overzealous insistence that the gun was “not hot,” and his failure to 

provide any proof explaining his possession of the stolen handgun is sufficient to sustain 

the Defendant’s conviction for theft of property. 

II. Imposition of Fines. The Defendant argues that his fines in Counts 2 and 3 

should be vacated because the trial court failed to conduct an independent assessment of 

the fines fixed by the jury, including the Defendant’s ability to pay them. He claims “the 

trial court may not have even understood that it had both the authority and the discretion 

to reduce or waive the fines, because the court stated that [the Defendant] ‘asked for a jury 

trial, and that included fine assessment.” He also maintains that the court, after 

acknowledging that the Defendant “was going to owe a lot of money,” chose not to reduce 

or waive the fines and merely “rubber-stamped the fines set by the jury.” The Defendant 

contends that because the trial court failed to exercise its own discretion on the fines, this 

court should reverse and remand the fine determination for reconsideration, “with 

instructions for the trial court to independently assess the jury-imposed fines and determine 

whether they should be reduced or waived in light of [the Defendant’s] lack of criminal 

history, his status as an indigent defendant, the lack of applicable enhancement factors, the 

fact that the owner of the handgun had already been compensated for his loss through 

insurance, and the fact that [the Defendant’s] convictions were all for misdemeanor 
- 21 -

offenses.” In response, the State contends that the trial court properly imposed the fines 

fixed by the jury. We agree with the State. 

This court reviews a trial court’s imposition of a fine, which is part of a defendant’s 

sentence, under an abuse of discretion standard. State v. Bryant, 805 S.W.2d 762, 767 

(Tenn. 1991); State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). Typically, fines are fixed 

by a jury unless the defendant waives this constitutional protection. Tenn. Const. art. VI, 

§ 14; Tenn. Code Ann. § 40-35-301(b); State v. Mahoney, 874 S.W.2d 627, 630 (Tenn.

Crim. App. 1993). Here, the record makes it clear that the Defendant chose to have the 

jury fix the fines in his case. 

A trial court has “the power to impose any fine which does not exceed the fine fixed 

by the jury, and to reduce, suspend, or release fines.” Bryant, 805 S.W.2d at 765 (citing 

Tenn. Code Ann. §§ 40-24-101, -102, -104); see Tenn. Code Ann. § 40-35-301(b). In 

imposing a fine, the trial court must consider the principles of sentencing, including “prior 

offenses, potential for rehabilitation, mitigating and aggravating circumstances, and other 

matters relevant to an appropriate sentence.” Bryant, 805 S.W.2d at 765-66. 

It is well recognized that a defendant’s ability to pay is a factor in the establishment 

of a fine. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. 1996). “[A]lthough the 

defendant’s ability to pay a fine is a factor, it is not necessarily a controlling one.” State v. 

Marshall, 870 S.W.2d 532, 542 (Tenn. Crim. App. 1993), overruled on other grounds by

State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999). While “an oppressive fine can disrupt 

future rehabilitation and prevent a defendant from becoming a productive member of 

society[,] . . . a significant fine is not automatically precluded just because it works a 

substantial hardship on a defendant—it may be punitive in the same fashion incarceration 

may be punitive.” Id. Moreover, while the record shows that the Defendant was indigent, 

we recognize that “[a] declaration of indigency, standing alone, does not, however, 

immunize the defendant from fines” and is “merely one factor which may be taken into 

account.” Alvarado, 961 S.W.2d at 153. 

The record shows that the trial court instructed the jury that if it found the Defendant 

guilty beyond a reasonable doubt of failure to maintain lane in Count 1, then the jury, in its 

discretion, could fix a fine in an amount of not more than $50.00, but not less than zero 

dollars. See Tenn. Code Ann. § 40-35-111(e)(3). The court also informed the jury that if 

it found the Defendant guilty beyond a reasonable doubt of possession of drug 

paraphernalia in Count 2, then the jury, in its discretion, could fix a fine of not more than 

$2500.00, but not less than $150.00. See id. §§ 40-35-111(e)(1), 39-17-428(b)(7). Finally, 

the trial court informed the jury that if it found the Defendant guilty beyond a reasonable 

doubt of theft of property in Count 3, then the jury, in its discretion, could fix a fine of not 

more than $2500.00, but not less than zero dollars. See id. § 40-35-111(e)(1). Ultimately, 
- 22 -

the jury fixed a fine of $0.00 in Count 1, a fine of $150.00 in Count 2, and a fine of $500.00 

in Count 3. 

We note that during the entirety of the sentencing hearing, the Defendant never 

raised an objection regarding his fines, never presented any proof regarding his ability to 

pay fines, and never argued that the trial court should refrain from imposing the fines fixed 

by the jury for any reason. Rather, the Defendant only argued for a suspended sentence 

and no jail time. By failing to do so the Defendant risked waiver of this issue. See Tenn. 

R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to 

a party responsible for an error or who failed to take whatever action was reasonably 

available to prevent or nullify the harmful effect of an error.”); Alvarado, 961 S.W.2d at 

153 (“Ordinarily, issues raised for the first time on appeal are waived.”); State v. Maddin, 

192 S.W.3d 558, 561 (Tenn. Crim. App. 2005) (“When an issue is raised for the first time 

on appeal, it is typically waived.”); State v. Turner, 919 S.W.2d 346, 356-57 (Tenn. Crim. 

App. 1995) (“A party may not raise an issue for the first time in the appellate court.”); State 

v. Charles A. Kennedy, No. M2013-02207-CCA-R9-CD, 2014 WL 4953586, at *10 (Tenn. 

Crim. App. Oct. 3, 2014) (“Because the State failed to present this argument in the trial 

court, the trial court did not have the opportunity to pass on it, and we will not consider 

it.”). In any event, we will briefly address the merits of the Defendant’s claims. 

As to the Defendant’s fine in Count 2 for possession of drug paraphernalia, the 

Tennessee General Assembly has determined that a mandatory minimum fine of $150.00 

is required for that particular offense. See Tenn. Code Ann. § 39-17-428(b)(7). 

Accordingly, we conclude that the trial court did not abuse its discretion in imposing the

$150.00 fine fixed by the jury in Count 2.

Next, as to the Defendant’s fine in Count 3 for theft of property, the trial court 

recognized that the Defendant “had no prior criminal history[,]” that he had only been 

convicted of “misdemeanor offenses[,]” and that “there were really no aggravating 

circumstances at the time of the stop and the arrest.” The trial court asked the Defendant 

if he had a job, and the Defendant replied that he had a job interview “Monday in 

Murfreesboro, Tennessee.” The court then asked if the Defendant would have a place to 

live if he were offered the job in Murfreesboro, the Defendant replied that he did have a 

place to live, although he currently lived at home with his mother in Bolivar, Tennessee. 

In response to the court’s questioning, the Defendant acknowledged that he had been 

employed at two other jobs for short periods of time. The trial court then stated, “The fines 

will stand. He asked for a jury trial, and that included fine assessment, so we do have the 

fines of $500 on the theft and $150 on the [possession of drug] paraphernalia[.]” Although 

the trial court recognized that the Defendant was “going to owe a lot of money” and was

currently unemployed, it chose to impose the fines set by the jury and informed the 

Defendant that the minimum payment on these fines was $100.00 a month.
- 23 -

The record shows that the trial court conducted a full, independent assessment of 

the fines fixed by the jury, specifically considering the Defendant’s ability to pay these 

fines. The court determined that the Defendant had been employed in the past and was 

searching for work while living with his mother. At the conclusion of the sentencing 

hearing, the trial court ordered the Defendant to serve only ten days in jail, with the 

remainder of his of his eleven months and twenty-nine day sentence supervised by 

community corrections. In light of these facts, we likewise conclude that the trial court did 

not abuse its discretion in imposing the $500.00 fine in Count 3. Accordingly, the 

Defendant is not entitled to relief. 

CONCLUSION

Because the evidence is sufficient to sustain the Defendant’s convictions in Counts 

2 and 3 and the trial court did not abuse its discretion in imposing the fines fixed by the 

jury in those counts, the judgments of the trial court are affirmed. 

____________________________________

 CAMILLE R. MCMULLEN, JUDGE