### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Ma y 2, 200 6 S es sio n

STATE OF TENNESS EE v . BERNARD M. WALLACE

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

No. W2005-01927-C CA-R 3-CD - F iled Novem ber 1, 2006

Following a jury trial, Def endant, Be rnar d M. Wallace, was convicted of possession of coc aine ove r po int fi ve (0 .5 ) g ra ms with inte nt to se ll, a Cla ss B fe lon y , a ndpo sse ssi on of mari jua na , a Cla ss A misdemeanor. D efe ndant was se ntence d to se rve twenty -five y ear s in the Depa rtment of Corre ction for the Class B felony , and ele ven months and twenty -nine da y s for the Class A misdemeanor, to be

se rv e d c on c ur

re ntl y . I n th is a

pp e a l, D e fe nd a nt a

rg ue s th a t ( 1) the tr ial cou rt e rr e d in de ny ing his motion to s uppress the e vidence obtained as a result of the se arc h of a motel room; (2) the e vidence was insuffic ient to support his convictions; (3) the trial court imprope rly applied the e nhance ment fa c tor s in de te rm ini ng the le ng th of De fe nd a nt’ s se nte nc e

. Af te r a tho ro ug h re vie w, the jud g me nts of the trial c ourt are aff

irmed.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed

T H O M A S T. W O O D A LL , J ., delivere d the opinion of the court, in which J OHN E VE R E TT W I L L I AMS and J.C. M C L IN , J J joined.

J ames N. A dams, J r. and Jake Ada ms, Selmer, Tenne ssee, f or the a ppellant, B erna

rd M. Wallace.
Paul G. Summers, Attorney Gene ral a nd Reporter ; Ra chel E. Wil lis, Assistant Attorney Gene ral; G. Robert “Gus” Radford, District Attorney Gene ral; and J ohn W. Ove rton, Assistant District Attorney Gene ral, for

the appe llee, the State of Tenne ssee.

OP IN ION

I. Bac kgr ound
On August 9, 2004, at approx imately 12:30 a.m., Officer Brian R ich of the Savannah Police Depa rtment was on r outine patrol in Savannah. Whil e passing by the S avanna h Motel, Offic er Rich

saw a person jump behind the f ence adjac ent to the motel in order to hide from him. Office r Rich approa ched and asked the individual to step out f rom behind the fe nce. T he individual told Office r Rich her na me was Jennifer A rnold and that she w as stay ing in r oom thirty -two at the motel.-2-

Deputy Whit e ar rived to assist Offic er Rich, and toge ther they approa ched r oom thirty -two to determine whether Ms. Arnold was stay ing in the r oom. As they g ot closer to the r oom, the door to the room wa s o p en ed and the office rs “smelled a strong smell of marijuana .” The re w ere four other indi viduals in the room who verified M s. Arnold’s identity and the f act that she was stay ing in the ro om. Th os e ind ivi du a ls w e re la te r i de nti fi e d a s Cry sta l B e nn e tt a nd J on a tha n B e nn e tt, Be rnar d Wallace, a nd J ohnny Porter. Althoug h Ms. Arnold orig inally led the offic ers to believe she had re nted the room, doc ument at i o n i n t he motel’s off ice indicated the room ha d been r ented by Ashley Morris. Ms. Morris was n o t p re s en t i n the room whe n the offic ers a rrived. T he off

icer s asked Ms. Arnold for permission t o sear ch the r oom and she a g ree d to allow them to searc h.
Acting on this co n sent, the off icer s beg an an “ overvie w sea rch.” Offic er Rich sa w pa ra ph e rn a lia in p la in v ie w a ndfe lt tha t th e re we re dr ug s in the ro om. Spe c if

ic a lly , h e sa w “ B ri llo pads and ma y

be a pie ce of

pipe or something like that,” which he identified as pa raphe rnalia use d to smoke cra ck coc aine. Office r W hite likewise recog nized the items as para pherna lia used to smoke

cra ck coc aine. As the sear ch continued, Offic er Whit e found “e ight point nine ( 8.9) g rams of r ock substance ba se cr ack c ocaine ” and “thirty -one g rams of marijuana

. . . in the couch a nd behind the cushion, stuck down in the couc h.” The rock c ocaine su b s t an ce a nd the marijuana wer e bag g ed separ ately in two ba g s. Ba sed on his experience , Offic er White knew tha t such a lar g e amount of

cra ck coc aine a nd marijuana wer e typically associate d with a dea ler rather than a n individual user.
At trial, J ennife r Arnold testified that on Aug ust 9, 2 0 0 4 , s he wa s sitti ng outside of the Savannah Mote l when she w as appr oache d by Of fi ce r R i ch. S he told Offic er Rich that she was stay ing w ith some friends in room thirty -two at the motel a nd she wa s outside “g etting a bre ath of fre sh air.” She sa id that Defe ndant had invited her to the room to “assoc iate” and “ge t high.” She ag ree d to come to the motel r oom a nd to drive Def endant to pick up some drug s. Once she ar rived

a t th e mot e l, D e fe nd a nt n e ve r b ro ug ht u p th e su bje c t of g oin g to p ic k u p th e dr

ug s.

When Ms. Arnold arrived at the motel on the night of the incident, Ashley Morris and Johnny Porter we re a lrea dy

in the motel room “g etting high.” Def endant arrived at the room shortly afte r Ms. Arno ld. Ric ky Hu tto n wa s the ne xt t o arrive

. Mr

. Hu tto n g a ve De fe nd a nt c a sh fo r the pu rc ha se of an “ eig ht ball” or twenty -eig ht gr ams of cr ack c ocaine . After making his purchase , Mr. Hutton and Ashley

Mo rr is left the motel room. Following their depa rture, Cry stal Be nnett and Jonathan Be nnett arrived at the motel room.

Acc ording to Ms. Arnold, J ohnny Porter lef t the m otel room at s ome point during the eve ning to sell an eig hty

($80.00) dolla r p i ece of c rac k coca ine to a man na med Nebo. Ms. Arnold saw Def endant g ive Mr. Porter the drug s which were to be sol d. When Mr. P orter returne d to the motel room, he did not have the drug s or the money from the sale. A discussion ensued be tween D efe ndant and Mr. Porter

reg arding what had happene d during the s ale. Ms. Arnold di d not hear the spec ifics of the c onversation.

De fe n d an tre ce i v ed a p h o n e c al l o n h i s ce l l u l ar t el ep h o n e. He t h en as k ed M s

. Ar n o l d t o go outside and “ma

ke a sa le” by

delivering a seventy

($70.00) dollar

piece of cr ack c ocaine to Ricky-3-

Hutton. He g ave Ms. Arnold the crack coca ine i n a plasti c sandwich bag

. The poli ce a rrived be fore Ms. Arnold could deliver the drug s to Mr. Hutton. She threw the ba g containing the drug s “down the hill on the other side of the brick wa ll that is right on the other side of the white f

ence .”
Ms. Arnold said that both marijuana and cr ack c ocaine had bee n smoked in the motel room on the nig ht of the incident. She a ssumed that Def endant br oug ht the cra ck coc aine a s well as the marijuana to the motel room, but she di d not know for sure. Ms. Arnold witnessed De fenda nt selling drug s to various individuals while she was in the motel room. She then sa w De fe n d an t u s e the money from those drug sales to purc hase one -half ounc e of c rac k coca ine from Peter Ross.

M s

. A r n o l d a d m i t t e d t h a ts h e w r o t e D e f e n d a n t a l e t t e r f

r o m t h e H ar d i n C o u n t y J a i l f i v e d a ys afte r she was arr ested. I n the letter, Ms. A rnold ref err ed to the drug s as “mine” and told Def endant that she should have c laimed the drug s the nig ht of the incident. She testified howeve r, that the drug s did not be long to he r and that she wrote the letter beca use she wa s emotional and wa s involved in a sexual relationship with Defe ndant.
Ashley Morris t estified that on Aug ust 9 , 2004, she re nted room thirty -two at the Sava nnah th Motel so that she and Def endant could g et high on coca ine. Def endant g ave Ms. Morris the money to rent the motel room. JohnnyPorter and J ennife r Arnold wer e also prese nt in the m otel room, and t h eyal l “s at ar o u n d an d go t h i gh

. ” M s

. M o rr i s d i d n o ts ee an y o n e o t h ert h an De fe n d an tb ri n g d ru gs int o the mot e l r oo m. A t so me po int , Ri c ky Hu tto n e nte re d th e ro om a nda g re e d to g ive Ms. Mo rris a ride to her house.
Cry stal Be nnett testified that on Aug ust 9 , 2004, J ohnny Porter invited he r and her husba nd th to come down to room thirty -two at the Sava nnah Motel for a party . When they

arrived at the motel room, she and he r husband use d cra ck coca ine. Ms. B ennett never saw a ny one in the motel room smoking marijuana, but she said it smelled like someone ha d previously been smoking m ar i

j u ana in the room. Ms. Be nnett left t he motel room to g o to the store for cig are ttes. She g ave Mr . Porter a ride to someone’s house on her way to the s tore. Ms. Be nnett and Mr. Porter returned to the motel

ro om independent of

one anothe r. When Mr. Porter r eturne d, he and D efe ndant eng ag ed in a discussion a nd Def

endant looked “irritate d” with Mr

. Porter. She could not he ar what t h ey wer e discussing.

Ms. Be nnett said that Def endant r ece ived a tele phone ca ll a nd then he “ sack[ed] some cra ck

coca ine up” f

or Jennifer Arnold to take outside and de liver to somebody

. This was the only time that Ms. B e nn e tt s a w d ru g s ta

ke n o ut o f the mot e l roo m. A fe w m inu te s a ft e r M s. Arno ld l e ft the ro om, J ohnny Porter “looke d out the window and said, ‘the law ’s her e.’” Ms. Be nnett said that Def endant g rabbe d the cr ack c ocaine off the be d and we nt into the bathroom and shut the door. She hear d the commode flush sever al times from whe re she was seated in the motel room. At that point, the police office rs enter ed the r oom and beg an to sea rch.-4-

J essica Webb testifie d t h at s h e was a for ensic scie ntist wit h the Tenne ssee B ureau of I nvestig ation. As part of her job, Ms. W ebb per formed a drug analy sis on the substances re cover ed from the motel room on the nig ht of the incident. Ms. Webb identified the dr ug s rec overe d from the

scene as marijuana

and coc aine ba se. Ther e we re “ thirty -one point zero (31.0) g rams” of marijuana and “e ight point nine (8.9) g rams” of coca ine base or “c rac k.” Ms. Webb said that the quantity of the dr ug s w a s la

rg e r tha n wh a t is no rm a lly se e n in the c ri me la b, bu t st ill wa s n ot a n u nu su a l a mou nt.

J ohnny Porter, Def

endant’ s co-de fenda nt, testified that at appr ox imately two-thirty

p.m. on Au g us t 9, 20 04 , h e we nt t o r oo m th ir ty -t wo at the Sa va nn a h M ote l to se e De fe nd a nt a ndto u se dr ug s. Mr. P ort er s a id tha t he wa s n ot d e liv e ri ng a ny dr ug s to De fe nd a nt, no r w a s h e g oin g to purcha se drug s to sell somewhere else or to se ll or deliver to somebody else. Mr. Porter

did not see wh o br ou g ht the dr

ug s to the mot e l ro om. He a dmi tte d that he ha d sto pp e d by Ms. B e nn e tt’ s h ou se
ear li e r th a t d a y a n d h a d in v it e d h e r a n d h e r h u s b a n d , Jo n a th a n B e n n e tt , to c o me to a p ar ty at the Savannah Mote l.

When Mr. Porter ar

rived a t the motel room there w ere people smoking marijuana and using

coca ine. Mr. P o rter a dmitted that he too was smoking ma rijuana a nd using c ocaine . He sa id that the motel room smelled like marijuana . Mr. Porter sa id that a phone c al l wa s m ad e t o t he motel room phone fr om someone at a man named N ebo’s house

. T h e caller said that people at Nebo’s house wa nted some cra ck. Mr. Porter told the caller that no one had a ny

cra ck coc aine to sell, but he would come by

Nebo’ s house any way

. When Mr. Porter hung up the phone, Defe n dant threw him some crac k coca ine, but Mr. Porter re fu s ed t o t ak e t h e drug to Ne bo’s and thre w it rig ht back to De fenda nt. He said that Def endant wa s not really

serious, he w as just “play ing” with him. Ms. B ennett then g ave Mr . Porter a ride to N ebo’s house so that he could tell the people at the house that there was not any “dope” for sale. Mr. Porter

said that when he returne d to the motel room, Def endant ha nded Ms. Arnold “ dope” and she w ent outside the motel room to sell it for him.
Prior to trial, Defe ndant filed a motion to s uppress the e vidence obtained as a r esult of the office r’s sea

rch of the motel room. Def

endant a rg ued that the se arc h was illeg al and that the of fice rs could not have r easona

bly believed that Ms. Arnold had authority to give consent to a se arc h of the motel room. At the hea

ring on the motion, Office r Rich provided the sole testi m o ny with respec t to the va lid ity

of the se arc h. Th a t tes tim on y wa s e sse nti a lly the sa me te sti mon y

pr e se nte d a t tria l, with one exception. At the m otion to suppress hearing , Offic er Rich testified that Ms. Arnold g ave the offic ers permission to sear ch the room based on the s mell of m arijuana . He state d, “we asked

e ve ry bo dy the re , a nd no bo dy wo uldte ll u s n oth ing be sid e s [Ms . A rn old ]. Sh e ’s the on e that sa id i t was he r room. Nobody knew nothing about nothing.” At trial howeve r, Off icer Whit e testified that the office rs asked the occ upants of the r oom if Ms. Arnold was staying the re a nd “they all said y es.” The trial court denied Def endant’ s motion, finding that Ms. A rnold g ave va lid consent for a sear ch of the motel room and in a ny event, the of

fice rs had pr obable cau s e to s ear ch the r oom, and they

we re jus tif

ie d in c on du c tin g the se arc h w ith ou t a wa rr a nt b a se d o n e xig e nt c ir c ums ta nc e s.-5-

II. M ot ion to Suppr e ss

Def endant a rg ues that the trial court err ed in over ruling his moti on to suppress the evide nce fo un d a s a

re su lt of th e sear ch of the mot e l r oo m be c a us e Of fi c e r R ic h c ou ld n ot h a ve re a so na bly believed that J ennife r Arnold had authority to consent to a sea rch of room thirty -two of the Sava nnah motel. When the trial court make s findings of fac t at the conclusion of a suppre ssion hearing , the fac ts are a ccor ded the weig ht of a jury verdic t. State v. Adams , 8 59 S.W. 2d35 9, 36 2 ( Te nn . Crim. App. 1992). The trial court’s findings are binding upon this court unless the evidence in the rec ord preponde rate s ag ainst them. State v. Odom , 928 S.W .2d 18, 23 (Tenn. 1996) . Questions of

cre dibilit y

of witnesses, the weig ht a nd value of the evidenc e, and re solution of conflicts in evidence

are ma tte rs e ntr

us te d to the tr ia l ju dg e a s th e tr ie r of fa c t. Th e pa rt y pr e va ili ng in the tr ia l c ou rt is

e nti tle d to the str on g e st l e g iti ma te vie w of the e vid e nc e a dd uc e d at the su pp re ssi on he ari ng a s w e ll as all rea sonable and leg itimate infere nces that may be dra wn from the e vidence

. Odom , 928 S.W .2d

a t 23 . T he app lic a tio n o f the la w to th e fa c ts, ho we ve r, re qu ir e s de novo revie w. State v. Daniel , 12 S.W. 3d42 0, 42 3- 24 (T e nn . 2 00 0) . Like wi se , if the e vid e nc e do e s n ot inv olv e a c re dib ili ty assessment, the r eviewing court must examine the rec ord de novo without a p resumption of

corr ectne ss. State v. Y

eargan , 958 S.W .2d 626, 6 29 (Tenn. 1997) . Review is not limit ed to the

re co rd of the suppression hearing; r ather , it ex tends to the entire r ecor d of proc eeding s. State v. Henning , 975 S.W .2d 290, 299 (Tenn. 1998)

.
Under both the Fourth A mendment to the United States Constit ution and article I , section 7 of t he Tennessee Constit ution, a warra ntless sear ch is presume d unrea sonable. State v. Bartram , 925 S

. W

. 2 d 2 2 7 , 2 2 9 -3 0 (T en n

. 1 9 9 6 ) ( ci t i n g Coo lid ge v . Ne w H

am ps hire , 40 3 U .S. 44 3, 45 4- 55 , 9 1 S. Ct. 2022, 2032, 29 L . Ed. 2d 564 (1971)) . There are many well-re cog nized ex ceptions to this rule, including a

sear ch conduc ted pursuant to conse nt. Bartram , 925 S.W .2d at 230. The State ha s the burden of establishing that the sear ch wa s conducte d pursuant to this ex ception. Id . I f the Sta te fa ils to s a ti s f y it s b u r d e n , th e e xc lu s io n ar y ru le may o p e r a te to b ar

th e a d mi s s ib il it y

o f a n y e v id e nce obtained dire ctly

or derivatively

from the unc onstitut ional sear ch. W ong Sun v. United States , 371 U.S. 471 , 4 85 , 8 3 S. Ct. 40 7, 41 6, 9 L . E d. 2d44 1 ( 19 63 ); Sta te v . Cl ar k , 8 4 4 S. W. 2 d 597, 600 (Tenn. 1992)

.
I n the pre sent ca se, De fenda nt asserts that the of fice rs c o u ld

n o t h ave r easona

bly believed that Ms. Arno ld h a d auth or ity to c on se nt t o a sear ch o f the ro om b e c a us e on fi rs t e nc ou nte r w ith Ms. Arnold, Officer Rich was “skeptical of [her] identity and her possessory

interest in room [thirty -two] to the extent t h at h e thoug ht it was nece ssary to confirm her

story .” De fenda nt contends that the office rs took no steps to verify Ms. Arnold’s stat em en t an d confirm that she was staying in r oom thirty -two befor e they knocked on the door. He arg ues that he a nd the three other individuals wer e inside room thirty -two with the motel door close d

. As s u ch , he ar g ues that he a nd the other individuals had an expectation of privac y in the motel r oom supe rior to that of Ms. Arnold’s whom Offic er Rich ne ver sa w inside the room. Be cause Def endant’ s “intere st” in the motel room was

su pe ri or to M s. Arno ld’ s, he arg ue s tha t on ly he or on e of the oth e r i nd ivi du a ls i n th e ro om c ou ld have g iven valid conse nt for a sear ch. There fore , he arg ues that the offic ers’ war rantless sea

rch of the motel room was a

violation of his Fourth Amendme nt rig ht to privacy

.-6-

Th e tr ia l c ou rt

ov e rr ule d th e mot ion to s up pr e ss f ind ing a s f

oll ow s: Concerning the sea

rch, the Court f

inds tha t it is a constitutionally valid sear ch. The Court finds, first of all, that the off icer had a rig ht to chec k on the information that Ms. Arno ld, wh o wa s susp ic iou s outs ide the pr e mis e s, he ha d a rig ht t o c he c k o n th a t. As I said ea rlier, she ’s wande ring about, skulking a b o u t , hiding be hind the fenc e. She sa y s, “ I ’m

a g ue st he re .” Whe n h e a tte mpt s to ve ri fy that in fo rm a tio n, wh ic h is appropriate, the information give n from he r i s t h at she is a g uest at the motel, that room thirty -two is her r oom. They proce ed to that [room] , knock on the door

. He smells the odor of marijuana

. He obse rves co n t ra b an d in plain view, ac cording to the office r, which, in a nd of itself, would g ive him the rig ht conce rning exigent cir cumstance s, to enter the r oom since he ’s alre ady

violated - - a lrea dy

observe d criminal ac tivity

.
Furthermore , the Court finds th at s h e gave a valid consent, that none of the other Def endants in this c ase had any superior rig ht ove r her to the room, that she indicate s sh e ’s stay ing in the ro om, the re ’s no inf or ma tio n tha

t sh e ’s no t stay ing in the ro om, and she g ives that consent to se arc h, which is not any - - no one el s e h ad superior rig hts to her to g ive that conse nt. Perhaps any of the people in the r oom could have g ive n th e c on se nt u nd e r the se c ir c ums ta nc e s w he re the re ’s simply a g a ng of pe op le in the room. Certainly , she wa s in a position under these c ircumstance s where she could g ive a va lid consent.
We ag ree with the trial court that Ms. Arnold’s consent to sear ch the motel room was va lid. “The sufficie ncy of conse nt depends lar g ely upon the fa cts and c ircumstance s in a particula r ca se.” State v. Jac kson , 889 S.W .2d 219, 221 (Tenn. Crim. App. 1993). The prosec ution bears the bur den of proving that t h e co n s en t was fr eely and voluntarily

g iven. See State v . McM ahan , 650 S.W .2d 383, 386 (Tenn. Crim. App. 1983)

. “‘The exis tence of conse nt and whethe r it was voluntarily g iven

are questions of fac t.’” Sta te v . A sh wor th , 3 S.W .3d 25, 29 (Tenn. C ri m

. App. 1999) (quoting McM ahan , 650 S.W .2d at 386).

Gene rally , consent may be g iven “either by the individual whose proper ty is searc hed or by a thi rd party who possesses c ommon authority over the premises.” Sta te v . E lli s , 89 S.W .3d 584, 592 (Tenn. Crim. App. 2000) (cit ati ons omitt ed). “ [T] he conse nt of one who posse sses common authority over pr emises or e ffe cts is valid a s ag ainst the abse nt, non-consenting person with whom that authority

is shared.” State v. Bartram , 9 2 5 S

. W

. 2 d 2 2 7 , 2 3 0 -3 1 (T en n

. 1 9 9 6 ) ( q u o t i n g United States v. Matlock , 4 1 5 U

. S. 1 6 4 , 1 7 1 n

. 7 , 9 4 S. Ct

. 9 8 8 , 9 9 3 n

. 7 , 3 9 L

. E d

. 2 d 2 4 2 ( 1 9 7 4 ) )

. The United States Suprem e C o u rt d efined common authority as the “ mutual use of the pr operty by pe rs on s general ly ha vin g joi nt a c c e ss o r c on tr ol f or mos t pu rp os e s, so that it is r e a so na

ble to
rec og nize that any

of the c o-inhabitants has the right to pe rmit the inspection in his own right a nd that the others ha ve assumed the risk that one of the ir number mig ht pe rmit the common are a to be

sear ched.” Bartram , 9 2 5 S

. W

. 2 d at 2 3 1 (q u o t i n g United States v. Matlock , 415 U.S. at 171 n.7, 94-7-

S. Ct . at 993 n.7). This c ourt has previously explained tha t c ommon authority may be esta blished either by demonstrating that the third party in fac t possessed common authority as def ined above or, alternatively , by

demonstrating that the fa cts ava ilable to the sea rching police off

icer s would have

war rante d “a man of rea sonable caution in the belief that the consenting party had authority over the premises.” El lis , 8 9 S

. W

. 3 d at 5 9 3 (q u o t i n g Illinois v. Rodriguez , 497 U. S. 177 , 188 -8 9, 11 0 S. Ct. 2793, 2801 (1990))

. Ap ply in g t hes e pri nc ipl e s to the fa c ts o f this c a se , w e c on c lud e that th e of fi c e rs ha d v a lid consent to ente r and se arc h the motel room. The f acts s h o w t h at M s

. Arnold wa s standing in the parking lot of the Sava nnah Motel and attempted to hide from Of fice r Rich when he drove by the motel on patrol. Off

icer Rich found her

behavior suspicious and approa ched h er to a scertain her identity and her rea son for being at the m otel. She g ave her na me and told Off icer Rich that she was stay ing in r oom thirty -two at the motel. When O ffice r Whit e ar rived a s back- up, Ms. Arnold ag ree d to acc ompany

the offic ers to room thirty -two so that they could verify

her identity and whe ther she was staying at the motel. As the offic ers a pproac hed the motel room, the door to the room opene d and the of fice rs immediately

smelled marijuana

. The occupants in the room verifie d Ms. Arnold’s identity and the f act that she was stay ing in the room. The office rs then asked Ms. A rnold, “Do y ou
c are if we se arc h th e apa

rt me nt? B e c a us e we do sm ell mar ij uana c omi ng [fr om the ro om]. ” Ms. Arno ld s ub se qu e ntl y

c on se nte d to a

se arc h o f the ro om. Un de r the c ir c ums ta nc e s, it wa s r e a so na ble fo r the of fi c e rs to be lie ve that Ms. Arno ld ha d the a uth or ity to c on se nt t o a

se arc h o f the mot e l r oo m. Con se qu e ntl y , th e se arc h w a s a va lid , le g a l se arc h a nd wa s n ot i n v iol a tio n o f D e fe nd a nt’ s F ou rth Amendment rig hts. Defe ndant is not entitled to relief on this issue.

II. Su ff iciency of the Evid ence

Def endant ne x t arg ues that the e vidence was insuffic ient to support his convicti on of possession of over point five (0.5) g rams of c ocaine with intent to sell or deliver and misdemea nor possession of marijuana . Specifica lly , Def endant a rg ues that there was no e vidence demonstrating that Def endant intende d to manufac ture, sale , or deliver a contr olled substance. H e conte n d s that the jury should not have acc redited the testimonyof Jennifer Arnold because “she g ave he r testimony ag ainst the defe ndant in hope s of g etting a favor able se ntence .” De fenda nt also points out t hat the

ev i d en ce s h o we d M s

. Ar n o l d h ad wr i t t en a l et t er t o De fe n d an ti n wh i ch s h e c l ai m ed t h at t h e d ru gs belong ed to her . He notes tha t although Ms. Arnold said that she wa s in the parking lot of the motel to s e ll d ru g s f

or De fe nd a nt, no dr

ug s w e re re c ov e re d f

ro m he r p e rs on or

from the pa

rking lot

. Finally , as further proof

that the evidenc e wa s insufficient, Defenda nt points to the fac t that among the occ upants, he wa s the furthe st from the drug s when the police enter ed the motel room.

When the sufficie ncy of the e vidence is challeng ed, the r eleva nt question is whether, a fter revie wing the evidenc e in the lig ht most favorable to the state, any rational trier of fact could have fo un d th e e sse nti a l e le me nts of the c ri me be y on d a re a so na ble do ub t. T e nn . R. Ap p. P. 1 3( e ); Sta te
v. W i l liams , 6 57 S.W. 2d40 5, 41 0 ( Te nn . 1 98 3) . O n a pp e a l, the Sta te is e nti tle d to the str on g e st leg itimate view of the e vidence and all reasonable infere nces which might be draw n there from. Sta te v. Cabbage , 571 S.W .2d 832, 835 (Tenn. 197 8 ). Qu es tions concerning the cre dibilit y of the-8-

witnesses, the we ight and value of the evidenc e, as well as all fac tual issues raised by the evidenc e
are resolved by

the trier of

fac t. Lia k

as v . S tat e , 28 6 S

. W

. 2 d 8 5 6 , 859 (Tenn. 1956) . Be cause a verdic t of g uilt aga inst a defe ndant remove s the presumption of innoce nce a nd raises a presumption of g uil t, the c on vic te d c ri min a l def e nd a nt be ars the bu rd e n of sho wi ng that the e vid e nc e wa s le g a lly insufficient to sustain a g uiltyverdic t. State v. Ev ans , 838 S.W .2d 185, 191 (Tenn. 1992)

.
I t is a criminal offe nse for a person to know ingly “sell a controlled substanc e.” See T.C.A. § 39-17-417( a)( 3) (2003 & Supp. 2005). A person is g uilty of poss ession with intent to sell cocaine, a Class B f

elony , “if the a mount involved is poi nt five (. 5 ) gra ms or more of a ny substance containing coca ine.” T.C.A. § 39- 17-417(c )(1) . A per son is guilty of simple poss essi on of marijuana , a Class A misdemeanor , if a pe rson know in g ly p o s s e s s e s or ca sually

exchang es marijuana wi tho ut a va lidpr e sc ri pti on ob ta ine d f ro m a pr a c tit ion e r w ho dis tr ibu te d th e pr e sc ri pti on wh ile acting in his professional ca pacity . T.C

. A. § 3 9-17-418( a) ( 2003). “A ‘ca sual exchang e’ contemplates a

spontaneous passing of a small amount of dr ug s, for instance , at a pa

rty ,” whe re “money may or may not be involved.” State v. Copeland , 983 S.W .2d 703, 708 (Tenn. Crim. App. 1998).

Tenne ssee c ourts rec og nize that possession may be either actua l o r constructive. State v. Shaw , 3 7 S.W.3 d 900 , 903 (T e nn . 2 00 1) ; see also State v. B igsby , 4 0 S. W.3 d 8 7, 90 (T e nn . Crim. App. 2000). A person constructively possesses a c ontrolled substance when he or she ha s “the powe r
a ndint e nti on a t a

g ive n ti me to e xer c ise do min ion a ndc on tr ol o ve r [the c on tr aba nd ] ei the r d ir e c tly

o r t hroug h others.” Shaw , 3 7 S

. W

. 3 d at 9 0 3 (q u o t i n g State v. Patterson , 966 S.W .2d 435, 445 (Tenn. Crim. Ap p

. 1 9 97)). Said diffe rently , constructive posse ssion is t he “a bilityto reduc e an object to ac tual possession.” State v. Cooper , 736 S

. W

. 2 d 1 2 5 , 1 2 9 (Tenn. Crim. App. 1987)

. H o w e v e r , “ [t ]h e me r e p r e s e n c e o f a p e r s o n in a n ar e a w h e r e d ru g s ar e d is c o v e r e d is n ot, alone, sufficie nt.” Bigsby , 4 0 S. W.3 d a t 90 ; see also Cooper , 736 S

. W

. 2 d at 1 2 9 . “Likewise, mer e association with a pe rson who does in fac t co n t ro l the drug s or prope rty wher e the dr

ug s are discovere d is insufficient to support a finding that the per son possess ed t h e d ru gs.” Cooper , 736 S.W .2d at 129. Further, pursua nt to Tennes s ee C o d e Annotate d section 39-17- 419, “[i] t may be inferr ed fr om t h e amountof a c ontrolled substance or substance s possessed by an off ender , along with other re levant fa cts surrounding the ar rest, that the c ontrolled substance or substance s were possessed with the purpose of selling or otherw ise dispensing .”

I n the pre sent ca se, the off i ce rs discovere d Def

endant in a motel r oom with severa l other individuals who wer e smoking cra ck coc aine a nd marijuana . After rec eiving consent to sea

rch the motel room, the offic ers f ound drug para

pherna lia in plain view and rec overe d 8.9 g rams of c rac k

c oc a ine a nd31 g ra ms o f m ari jua na that ha d b e e n h idd en in the mot e l r oo m so fa . M s. Mo rris testified that Def

endant g ave he r the money to rent t he room so that they could “ge t high” smoking

cra ck coc aine. Ms. Morr is also testified that De fe n dant was the only individual she witnessed bring ing dr

ug s into the room. Ms. Arnold t estified that she saw Def endant selling drugs in the motel room. She furthe r testified that De fe n dant g ave he r a “ seventy dollar piec e of c rac k coca ine” a nd told her to g o outside and conduc t a sale of drug s on his behalf. When the police arrived and disrupted the sale , Ms. Arnold immediately threw the drug s “down the hill on the other side of the-9-

br ic k w a ll. ” Ms. B e nn e t te sti fi e d tha t she sa w De fe nd a nt “s a c k” so me c ra c k co c a ine fo r M s. Arno ld to take outside the motel room and se ll on his behalf. Mr. Porter likew ise witnessed this transac tion. I n finding Def

endant g uilty , the jury

acc redited the testimonyof the State’s wi t n es s es. W e have previously stated that deter mining the cre dibilit y

of witnesses is left to the sole pr ovince of the jury and we will not overturn those determinations. Liakas , 286 S.W .2d at 859. Viewing the evidenc e in a l ight most favor able to the S tate, we conclude that the evidence was sufficie nt to establish that Def endant wa s g uiltyof possession of coc aine ove r .5 g rams with i n t en t t o sell and possession of marijuana . Def

endant is not entitled to relief on this iss ue.

III . Se nt e nc ing

F ina lly , D e fe nd a nt a

rg ue s th a t th e tr ia l c ou rt

inc or re c tly app lie d e nh a nc e me nt f

a c tor s in de te rm ini ng the le ng th of his se nte nc e

. Spe c if ic a lly , De fe nd a nt a

rg ue s th a t th e tr ia l c ou rt

“ sh ou ld have pr ovided m ore enhanc ing fac tors if it was not going to sentence [Defenda nt] to the minimum of the rang e fo r w hic h h e wa s e lig ibl e .” Th is c ou rt ’s re vie w o f a c ha lle ng e d s e nte nc e is de novo wi th a pr e su mpt ion that the tr ia l c ou rt ’s de te rm inatio ns are c or re c t. T. C.A

. § 40 -3 5- 40 1( d)

. This presumption of correc tness is conditioned upon the af firmative showing in the rec ord that the trial court c onsidered the sentenc ing principles and a ll releva nt fac ts and circ umstances. State v. Pe ttus , 98 6 S. W.2 d 5 40 , 5 43 -4 4 ( Te nn . 1 99 9) . I n th is r e g ard , f or the pu rp os e of meani ng fu l app e llate revie w, the trial c ourt must place on the r eco rd i t s re as o n s for a rriving at the fina l sentencing decision, identify

the mitigating and enha nceme nt fac tors found, state the spec ific fa cts supporting

eac h enhanc ement fa ctor found, a nd articula te how the m i t i g ating and enha nceme nt fac tors have be e n e va luate d a ndba la nc e d in de te rm ini ng the se nten c e . T .C. A. § 4 0- 35 -2 10 (f ) ( 20 03 ); State v. Ma rti n , 146 S.W .3d 64, 69 (Tenn. Crim. App. 2004)

.
I n conducting a de novo revie w, we must also conside r (1) the evidenc e, if a ny , rec eived at the trial and the sentenc ing he aring , (2) the pr esente nce r eport, (3) the principles of sentencing and

arg ume nts a s to se nte nc ing a lte rn a tiv e s, (4 ) the na tur e a ndc ha ra c te ri sti c s o f the c ri min a l c on du c t, (5) a ny mitigating or statutory enhanc ement fac tors, (6) a ny statement that the de fenda nt made on his own behalf, a nd (7) the potential for rehabilitation or t reatment. T.C.A. §§ 40-35-102, - 103, -210 (2 00 3) ; see State v. Ashby , 823 S.W. 2d16 6, 16 8 ( Te nn . 1 99 1) ; Sta te v . M os s , 727 S.W .2d 229, 236- 37 (Tenn. 1986) . Howeve r, if the re cord shows tha t the trial court f ailed to consider

the sentenc ing pr inc ipl e s a nda ll re le va nt fa c ts a ndc ir c ums ta nc e s, the n r e vie w o f the c ha lle ng e d s e nte nc e is p ur e ly de novo without the pr esumption of corr ectne ss. Ashby , 8 23 S.W. 2da t 16 9. On app e a l, the pa rt y challeng ing the sentenc e im posed by the t rial court has t he burden of establishing that the sentenc e is e rr on e ou s. T. C.A . § 40 -3 5- 40 1( d) , Se nte nc ing Com mis sio n Co mme nts

.
I n s e nte nc ing De fe nd a nt, the tr ia l c ou rt fo un d a s f

oll ow s:

I n th is c a se , th e Sta te ha s f ile d a pp ro pr ia te ra nge, andthe y ’v e fi le d a s E xhibi t 2 i n this he aring the prior convictions that show that, in fac t, the Def endant is a pe rsistent offe nder, be ing a

rang e thre e offender

. For the C lass B felony , which the f irst count-10-

is, ov e r poi nt fi ve (. 5) g ra ms of c oc a ine , tha t wou ld make a pe rm iss ibl e ra ng e tw e nty to thirtyy ear s on that . . .

* * *

He ’s g ot p ri or - - a hi st ory of pr ior c ri min a l c on vic tio ns or

be ha vio r i n a dd iti on to those n ece ssary

to establish the rang e. The re’ s a host of misdemeanor convictions in addition to the five felony convictions.

He ’s p reviously

been looke d at and r evoked f rom Communit y

Correc tions. He’s been r evoke d from par ole. History of re habilitation to any type of a lternative sentenc ing ha s been e x tremely poor in this case.

* * *

I ’m g oing to put him in the middle of the ra n g e that he’ s elig ible for. Tw enty -five y ear s, forty -five pe rce nt (45%).

Count two will be ele ven months and twenty -nine da y s. They will be concur

rent. The y

will be consec utive to tha t prior conviction that is on appea l. I don’t have the number in fr ont of m e, but that will be placed in the J udg ment.

P ri or to Def

endant’ s sentencing hearing, our Supreme Court dec ided State v. Gome z, 1 63 S.W .3d 632 (Tenn. 2005) , in which the court concluded that “[ t ] h e Reform Ac t [ of Tenne ssee] authorizes a discre tionary , non-manda tory sentenc ing proce dure and requir es trial judg es to consider the principles of sentenc ing to eng ag e in a qua litative analy sis of enhanc ement and mitig ating fac tors

. . . a ll of whi ch ser ve to g uid e tr ia l ju dg e s in e xer c isi ng the ir dis c re tio n to se le c t a n a

pp ro pr ia te sentenc e with t h e ra n g e set by the L eg islature.” Gomez , 163 S.W .3d at 661. Upon the f inding of

e ve n o ne e nh a nc e me nt f

a c tor , “ the statut e a ff

or ds the jud g e dis c re tio n to c ho os e a n appro priate sentenc e any wher e within the statutory rang e.” Id . at 659.

The sente ncing statute sets the senten ce fo r a R ang e I I I , persistent off ender convicted of

a Cl a s s B f e lo n y a t “ n o t le s s th a n tw e n ty ( 2 0 ) n o r mo r e th a n th irty ( 3 0 ) y e ar s

. ” T .C.A. § 40-35- 112(c) (2). Fo r a C lass A misdemeanor , the authorized term of imprisonment is “not gre ater than eleve n (11) months twent y -nine (29) day s.” T.C.A. § 40-35- 111(e) (1). As pr eviously stated, De fe nd a nt wa s sen te nc e d as a R a ng e I I I , p e rs ist e nt o ff e nd e r a ndre c e ive d tw e nty -f ive y e ars fo r h is Class B fe lony

conviction, and e leven months and twe nty -nine da y s for his Class A misdemeanor , to b e se rv e d c on c ur

re ntl y

. As su c h, De fe nd a nt’ s se nte nc e s w e re wi thi n th e statut ory ra ng e se t f

orth by the L eg islature. The rec ord re flec ts that in sentencing Defen d an t , t h e t rial court relied on Def endant’ s ext ensive c riminal history and lac k of potential for

reha bilitation. See T.C.A. § 40-35- 114(1), ( 8) (Supp. 20 0 5 ). Ac co rdi ng ly , under Gomez , the trial court properly considere d the-11-

se nte nc ing pr inc ipl e s and did no t er r in se nte nc ing De fe nd a nt to a term of twe nty -f ive y e ars fo r h is Cl a s s B f e lo n y c o n v ic ti o n a n d e le v e n mo n th s , tw e n ty

- n in e d a y s f o r h is Cl a s s A misdemeanor conviction. Gomez , 163 S.W .3d at 659. Def endant is not entitled to relief on this iss ue.

CO NC LU SION

For the fore g oing r eason, the judgme nts of the trial court are aff irmed.

___________________________________ THOMAS T. WOODAL

L , J UDGE