### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE October 15, 2002 Se ssion
STATE OF TENN ESSEE v. ROBERT WA YNE HERRON
Direct Appeal from the Criminal Court for P utnam County No. 98-0294A Leon Burns, Judge

No. M2002-00951-CCA-R3-CD - F iled January 22, 2003

The Appellant, Robert Wayne He rron, was convicted by

a Putnam County jury

of felony possession of cocaine with inten

t to deliver, simple possession of cocaine, and possession of drug paraphernalia. In this appeal, Herron contends that (1) the trial court er red in admitting evidence of his prior drug activity in violatio n of Tennessee Rule of Evidence 404(b) and (2) the evidence is legally insufficient to support these conv

ictions. After review, we fin d thes e cont entio ns are w itho ut mer it. A ltho ugh notraised as error, we find Herr on ’s multiple convictions for simple possession and felony possession, stemming from a single cocaine possession, violate principles of double jeopardy. T

he misdemeanor

coca ine c onviction i s, the

refo re, m erg ed wi th the

felo ny coca ine c onviction. We remandfor entry of

judgmen ts of conviction consistent with this holding. Herron’s convictions for felony possession with intent to deliver and misdemea n or possession of drug paraphernalia a re affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Re versed in Part; and Rema

nded.

D AV ID G. H AYES , J., delivered the opinion of the court, in which J ERRY L. S MITH and J OHN E VERE TT W ILLI AMS , JJ., joined.

David Neal Brady , District Public Defender; H. Marshall Judd, Asst. Public Defende r, for th e Appellant, Robert Wayne He rron.
Paul G. Summ ers, Attorn ey Gene ral a nd Rep orte

r; Mic hael Moor e, Sol icito r General ; Renee W. Turner, Assistant Attorney Gene ral; William Edward Gibson, Di strict Att orney Genera l; and John Moore, Assistant District Attorney Ge neral, for the Appellee, State of Tennessee

.1 It was l ater dete rmin ed th at t

he out sta ndin g war rant was n ot i ssu ed for

the Appellant . Rathe r, i t was i ssued for ano ther m an with the same name

.

2 The indictment was also re turned against Gary T homa s, Kristie L ynn Fla tt, and N ancy E lizabe th M aynard

. The reco rd refle cts that T hom as pled guilty to facilitating the sale of co caine and r eceiv ed ju dicial d iversio n. Dispos it ion of the ch arges against th e rem aining tw o co -defen dan ts is not sho wn.

3 The Appell ant was pr eviou sly convi cted on al l cou nts on May 20, 1999. However, t hese convi ctions were set aside in M ay, 20 00, p ursuan t to an o rder granting the Ap pellan t a new tria l due to a Ru le 16 violatio n.
-2- OPINION

Factua l Background The events leading to the Appellant’s arre st occurred on June 19, 1998, when two Putnam County Sheriff’s deputies we nt to an apartment searching for Kristie Flatt, who had been reported missing by her fa

ther. Initially , their knocks at the apartment went unanswered. While waiting down the road , the deputi es saw two individuals, later identified as the Appellant and Nancy Maynard, drive up and enter

the apartment. The deputies returned to the apartme nt and, af ter a disc ussion with the Appellant, Flatt appeared from another room and advised that she was alright. After leaving the residence, the deputies ran a records check on the registration of

the two vehicles parked outside the apartment. The check reveale d outstanding warrants for Nancy Maynard a

nd Robert Herron. 1

The depu ties then ret

urned to the apartment for the third time. Approximately fifteen minutes elapsedbetweenthe deputies’ second and third visits. Upon entering the apartment, they saw a crack pipe a nd a cigarette box, later found to contain .1 gr ams of rock cocaine, on an end tab le. Th e deputies also encountered the co-defenda nt, Gary Thomas, w

ho advise d that he r

ented the apartme nt. Thomas then gave written permission to search the entire apartment. During the searc h of the sparsel y f urnished apartment, numerous other incriminating items were disc overed in va rious rooms : (1) in the kitchen, a small pan containing alcohol, a can of a lcohol, baking soda, and

scouring pads; (2) in the bedroom, drug paraphernalia includinga glass pipe, smoking material, and a box of baking soda; and (3) in the bathroom, a plastic bag containing seven individual bags of cocaine in a roll of toiletpaper. The seven individual bags were later determined

to contain 9.7 grams of

cocaine . All four occupants in the apartment were ar rested.

On August 1 8, 1998, the Putnam County Grand Jury

returne d a three coun t indictment agains tthe Appellant 2 for: (1) possession of cocaine over .5 g rams with inten

t to delive r, a cla ss B fe lo ny; (2) manufacturing a schedule I I substance over .5 g

rams, a class B felony ; and (3) possession of drug pa rapher nalia, a class A misdemeanor. A jury convicted the Appellant on April 30, 2001, 3 of counts 1 and 3 as charged, and on count 2 of the lesser-i ncluded of

fense of simple possession. The Appellant received an eight-y ear com m unity corrections sentence on count 1 and concurrent sentences of 11 months, 29 days on counts 2 and 3. The trial court subsequently denied the Appellant’s motion for new trial on November 15, 2001, with this appeal following.-3- Analysis

I. Rule 404 (b)

The Appellant contends that the trial court er red by per

mitting the co-defendant, Gary Thomas, to testify

about the Appellan t’s prior acts of drug usage. Specifically, Thomas testified tha t he and the Appellant regularly used crack cocaine during the four to five-week per iod t hey lived together. At the apartment, Thomas stated that they used the cocaine “practically

every da y, every night.” He furth

er state d that he g ave the A ppellant thousands

of dollar s, which the Appellant used to purchas e cocaine for Thomas and h imself. Th

eir ag reemen t was to joi ntly

sh ar e all t he dru gs purchased; “if I

had it, you know, it was his; y ou know, if he had it, I would smoke it.” He further stated that var

ious gue sts in the a

partmen t, particularly

you ng wome n, were also giv en drug s. Thomas also testified that they had “ cooked” cocaine that morning, and

he and the Appellant had bothsmoked it. Before Thomas was permitted to give this testimony , a Rule 404(b) jury out he aring
was held. Fo llowing t

his hearing, the trial court found that the e vidence was prob ative to e stablish guilty knowledge. The court

also found that

the prej udicial im

pact of t he Appellant’s pr

ior drug use was outweighed by

its probative value. Immediately after Thomas testified, the trialcourt gave the jury a lim iting instruction as to the permissible use of the evidence. The Appellant ar gues that admission of

the evidence of

his prior drug involvement violated Tennessee Rule of Evidence 404(b) and constituted reversible error. We disagre e.
Alth ough Rule 404(b) isgener ally regar ded as be ing a rule of exclusion, it may equally be viewedas a rule

of inclus ion, if the

prior ba d acts or crimes of t he accused are admissible for purposes other than to prove character. “Other purposes” have been def ined to include: (1) motive; (2) intent; (3) guilty knowledg e; (4) identity of the de fendant; (5) absence of mistake or ac cident; (6)
a common scheme or plan; (7) completion of th e s to ry; (8) opportunity; and (9) pr eparation. Collard
v. State , 526 S.W.2d 112, 114 (Tenn. 197 5); se e also Neil P. Cohen, et al., Tennessee Law of Evidence § 404.6 (3d ed . 1995). A dditionally, the “other purposes” must meet the relevancy requirement

of Rule 401; the defined purpose for introduction of the prior bad acts of the accused must have a “tendency

to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401. The issue

of conse quence

before the jury in this cas e was w he ther the Appellant did (1) knowing ly

possess c ocaine with the inte nt to delive

r; (2) kn owingly

manufactur e a substance containing cocaine; or (3) intentionally possess drug paraphernalia. We would also note that, even if relevant, the evidence of prior bad a cts should be withheld from the jury if the probative value is outweighed

by the danger of un fa ir pr ej ud ic e o r i f t he ev id en ce wo ul d c on fu se or mi sl ea d t he ju ry. Tenn. R. Evid. 403, 404(b)(3). TheAppellant asserted at the beginning of the trial that, although he was present at the residence when the a rrest was made, thedrugs were not his and he “didn’t have anything to do with [them].” The proof es tablished

that the App ellant ha

d reside d at the a

ddress approxima

tely four to five weeks prior to the date of his arre st. The co-defendant’s testimony of the Appellant’s bad acts was limited to the four to five week period in which they shared the residence and of their m

utual poss ession o f cocaine and drug para phernalia, including the purchasing a nd “cook ing” of crack cocaine and its delivery to young wome

n who visited the apartment. Indeed, the4 In his brief , the Appellant present s a two-fol d challenge to his sufficiency argument which he frames as follows:

B. Did the Trial

Court Err i n Not Directi ng a Judgment of Acquit

tal Based Upon T he Uncorroborated Te stimon y of a C o-D efend ant?

C. Did th e Trial

Court Err i n Not Gran ti ng a Ju dgment of Acqu it tal Based Upo n the Eviden ce Not Being S ufficient As a Ma tter of Law to Co nvict Defend ant of Any of the C ounts?

W ith regar d t o the lat ter is sue, the Appell ant argu es, “[T]h e onl y evi dence t hat he poss esse d any il lega l dru gs or para phe rnalia came fr om a co-defen dant, Gary Thomas.” Because the Appellant ’s i ssue as set for th i n “B” an d “C” of his brief a re clea rly interrela ted, we add ress them unde r the singu lar issue o f sufficiency o f the evid ence

. -4- proof establish ed that the cocain e, w hich is the subject of this prosecution, was “cooked” by the Appellant during the fifteen minute interval between t he de puties’ second and third visits to the apartme nt. The coc aine wa s then smok ed by the Appellant a

nd Thomas and delivered to the two female guests for their use.

We agree with the tr

ial cour t that e vidence of

the Appellant’s prior drug activities was relevant to establi sh knowledg e and inte nt to posse ss cocaine on the date in question. See gen erally U.S. v. Tomber

lin , 130 F.3d 1318 (8 th Cir. 1997) (defendant put at issueboth his knowledge of and intent to po ssess drugs, asserting “mere pr esence” defense in prosecution for felony posse ssion by admitting occupation of bedroom but deny ing knowledge of drug s found at residence ; th er eb y, allowing admission of

prior drug convicti ons). Ge nerally , the admi ssibility

of evide nce unde r Rule 404(b) is within the discretion of the trial court. State v. D ubose , 953 S.W.2d 649, 652 (Tenn. 1997). We find no abuse of discretion with regard to the trial cour t’s ruling on this issue.
II. Sufficiency of the Evidence

The Appellan

t con tends that the evidence at trial was insufficient to support the jury ’s verdict

. 4 Specifically, he a rgues that the State failed to sufficiently corroborate the testimony of Gary Thomas, a

n accomp lice to thi s offens e. I t is well-s ettled tha

t a conviction may

not be bas ed solely upon the uncorroborated testimony of an accomplice. State v. Bigbee , 885 S.W.2d, 797, 803 (Tenn. 1994). This “very sa

lutary rule”is designed to prevent the “obvi ous da nge rs” of a llow ing a defendant to be convicted solely on the basis of an accomplice’s testimony

. Sherrill v . State , 321 S.W.2d 811, 814 (Tenn. 1959). However, Tennessee law requir es only a modicum

of evide nce in order to sufficiently corr

oborate the testimony of a n accomplice. State v. C opeland , 677 S.W.2d 471, 475 (Tenn. Crim. App. 1984).

With respect

to the nature, quality, and suf ficiency of the evidence necessa

ry to corro borate an accomplice’s testimony , this court has held:

The rule of c orrobor

ation as a pplied and used in th

is State is that

there mu st be some evidence indepe ndent of the testimony of the ac complice. The corroborat ing evidenc e must connect, or tend to connect the d efenda nt with the commission

of the cr ime charged; and, furthermore, the tendency of the corroborative evidence to connect the-5-

defendant must be independent of any testimony of the acco mplice. The corroborativeevidence must of its own force, indepen d ently of the ac complice’s te st im on y, tend to connect the defendant with the commission of the crime.

. . . The
e vidence corroborating the testimony of an accomplice may consist of dire c t evidence, circumstantial evidence, or a combination of direct and circu mstantial evidence. The qu antum of evidence necessary to corroborate an accomplice’s testimonyis not req

uired to b e suffic ient enou gh to support the accused’s conviction independent

of the ac complice ’s testimo ny n or is i t re quired to extend to every portion of the accomplice’s testimony

. To the contrary , only slight circumstanc es are required to corroborate an accomplice’s testimony . The corrobor ating evidenc e is sufficient if it connects the accused with the crime in question.

State v. Griffis , 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted). Furthermore, the jury is to determine the deg ree of evidence necessa

ry to corrobo

rate the te stimony of an accomplice. State v. Chris Billingsley , No. 01C01-9506-CC-00166 (Tenn. Crim. App. at Nashville, May 16, 1996).

The co-defendant, Thomas, testified that he and the Appellant ha d shared the apartment

for four to five weeks. They

had been involved in buying , cooking, and using co caine ov er the c ourse of this period. A

ccordin g to Thomas, he pr ovided the

money for the c ocaine, the Appellant usua lly purchased

and cook ed it, and they

both posse ssed it for

their mutu al use and for use and deliv ery

to others. Thomas further testified that cocaine had been c ooked and smoked by both he a nd the Appellant on the day of their

arrest. Thomas testified that he had put the cocaine in the toilet paper roll that day with the intent to smoke it later and that the Appellant was aware the drug s were there.

From a consideration of theproof in the re cord bef

ore us, w e find the

evidenc e suffic ient to corrobo rate the testimony of Gary

Thomas. The proof reflects that the Appellant

told the sheriff’s deputy that he did in fact

live in the apartment

with Thomas. Additional corroboration is found from the fact that the Appellant was seen entering the apartment and was pre sent when the deputies found cocaine and drug paraphernalia. The physical proof

corrobo rates Thomas’ sta

tements a s well. Drug paraphernalia was found

throughout the apartment, including a pan found on the stove as if it had just been use d; support

ing Thomas’ state

ment that c

rack co caine ha

d recen tly been cooke d and smoked. From this evidence, a rational jury could have concluded

that the A ppellant shared constructive possession of the cocaine in the apartment with Thomas. See State v. Williams , 623 S.W.2d 121, 125 (Tenn. Cr im. App. 19 81); State v. Copeland , 677 S.W.2d at 476. Clearly take n together, these facts give credenc e to Thomas’ statements; thus, the re q uirement of corroboration has been satisfied. Having found t hat the accomplice testimony was sufficiently c orroborated, the Appellant’s argument

must fail because, taken

in the light most favorable to the State, the evidence
was more than sufficient to allow a rational trier of fact to find the essential elements of the offenses beyond a reasonable doubt. See Jac kson v. V irginia , 443 U.S. 307, 319, 9 9 S. Ct. 2781, 2789 (1979); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992).-6-

Notwithstanding our findingth at the evidence i s suffici ent, we a lso find tha

t the multip le convictions for felony posse ssion with the intent to deliver and simple possession violated principles of double jeopardy. Our state and federal constitu tions protect a person from being punished multiple times for the same offense. State v. Mou nce , 859 S.W .2d 319, 321 (Tenn. 1993). Upon review we must

first determine whether the Appellant’s convictions for count 1, felony possession withintent to deliver

7.9 grams of cocaine found in the bathroom, and count 2, simple possession of .1 grams of rock cocaine, c onstitute a single offense or a multiple offense.

Alth ough schedule

II controlled substances wer e found in the vari ous rooms o f the apa rtment, they were all found within the same residence. As such, we find that the Appellant’s act of possession of a

schedule II controlled substanc e repre sents a single ac t and, thus , a singl e offense. See State v. Denton , 938 S.W.2d 373, 378-83 (Tenn. 1996) (reviewing double jeopardy under “s ame offense” anal ysis); see also State v. Rhonda Pat ricia Mayes , No. M2001-004230CCA-R3-CD (Tenn. Crim. App. at N a shville, July 18, 2002) (finding that multiple convictions based on possession of cocaine in differ

ent part s of the sa

me residence constitutes a single offense) . Accordingly , we find under plain error review that the Appellant’s multiple co nvi ctions for felony posse ssion with the intentto deli ver coc aine and simple poss ession of

cocaine are precluded by

principle s of double jeopardy. See Tenn. R. Crim. P. 52(b).

CONCLUSION

Based o n the for

egoing , we find

that the a dmission of

evidenc e of prio

r drug u se by the

Appellant
was proper. Moreover, we find the evidence legally

sufficient to support

the Appellant’s convictions for possessio n of coca

ine in excess of .5 grams with the intent to deliver and for possession of drug paraphernalia. We find as plain error that the Appellant’s multiple convictions for felony possession of cocaine and simple possession of cocaine, stemming for a single possession of cocaine, violative of double je opardy

principle s. Accor

dingly , the Appe

llant’s c onviction

for simple

possessio n is merged with his conviction for felony possession. The sente

nce impos ed for si mple posse ssion is vacated. This case is remanded for e ntry of judg ments of conviction consistent with this opinion.

___________________________________ DAVID G. HAYES, JUDGE