IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

December 4, 2001 Session

STATE OF TENNESSEE v. MAURICE LASHAUN NASH

Direct Appeal from the Circuit Court for Tipton County

No. 3933 Joseph H. Walker, Judge

No. W2000-02971-CCA-R3-CD - Filed February 8, 2002

The Appellant, Maurice LaShaun Nash, was found guilty by a Tipton County jury of possession of

a Schedule VI controlled substance with the intent to deliver, a Class E felony. The trial court

sentenced Nash, as a Range Istandard offender, to eighteen months in the Department of Correction.

On appeal, Nash raises three issues for our review: (1) whether the search warrant was issued upon

probable cause; (2) whether introduction of Nash’s presence during a prior drug sale at the same

residence constituted evidence of a prior bad act in violation of Rule 404(b) of the Tennessee Rules

of Evidence; and (3) whether the evidence presented at trial was sufficient to support the verdict.

After review, we find the issues presented are without merit. Accordingly, the judgment of

conviction is affirmed.

Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES,J., delivered the opinion of the court, in which GARY R. WADE, P.J., and DAVID

H. WELLES, J., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); J. Thomas Caldwell, Ripley, Tennessee (at

trial), for the Appellant, Maurice LaShaun Nash.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,

Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Ryan Brown, Assistant

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

OPINION

Factual Background

In October of 1999, Covington Police Department Investigator, Ricky Chandler, received

complaints regarding the presence of numerous individuals and vehicles at a house located at 1401

Howard Street. Based upon these complaints, Investigator Chandler conducted a three-week
Investigator Chandler explained that the use of the confidential informant in purchasing drugs was “for the 1

purpose of executing a search warrant.” The informant was not called as a witness at trial.

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surveillance of the location for periods of two to three hours at a time. The surveillance revealed

numerous vehicles arriving and leaving the location; described as “in and out” traffic. He also

observed “five to seven different people that stayed there off and on.” During the periods of

surveillance, it was estimated that the Appellant was present “80 to 85%” of the time. On October

26th, a police informant was equipped with a small electronic transmitting device, which permitted

Investigator Chandler to listen and record conversations between the informant and a third party.

The informant was instructed by Investigator Chandler to go to 1401 Howard Street and attempt to

purchase drugs. At the time of the planned drug buy and for a two-hour period prior thereto, the 1

only persons inside the house were the Appellant and Brian Howard. 

Investigator Chandler positioned himself directly across the street to observe and listen on

his receiver as the transaction took place. Chandler observed Howard standing at the front door

while the informant went inside. The Appellant was seen crossing in front of the doorway inside the

house several times. After entering the house, the informant purchased one ounce of marijuana from

the Appellant. Although Investigator Chandler did not actually see the transaction take place,

Chandler testified that he recognized the Appellant’s voice on the tape recording.

On the following day, October 27th, Investigator Chandler obtained a search warrant for 1401

Howard Street. The search warrant was based upon Chandler’s surveillance of the residence and the

transaction which took place there the night before. After searching the home, officers discovered

70 grams of marijuana, digital scales, balance scales, and plastic bags. Investigator Chandler

testified that the only personal item found in the house was a picture of the Appellant and four other

individuals. None of the Appellant’s possessions or belongings were found in the house and no

persons were present when the police entered the house to search.

At trial, the State introduced proof that the utilities to the house were in the name of the

Appellant. The defense introduced proof that the house was occupied by Edric Weathers. The rental

manager of the property testified that the Howard Street residence was rented to Edric Weathers, and

that Weathers signed the written lease, paid the deposit, and paid the rent. The Appellant, testifying

on his own behalf, stated that he had lived at his mother’s house in Atoka for the past two years. He

acknowledged that he was a close friend of Weathers, and that the utilities to the property were in

his name. The Appellant explained that when he vacated his Covington residence to return to his

mother’s home, he transferred his utilities to 1401 Howard Street to accommodate Weathers, who

could not pay the deposit.

ANALYSIS

A. Validity of Search Warrant

The Appellant contends that the search warrant is invalid as the affidavit supporting the

warrant failed to establish probable cause. In a secondary challenge to the validity of the warrant,
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the Appellant contends that the affidavit contains “a false statement” or a “recklessly made false

statement.”

When reviewing a trial court’s ruling on a motion to suppress, questions of credibility of the

witnesses, the weight and value of the evidence, and resolutions of conflicts in the evidence are

matters entrusted to the trial judge as the trier of fact. State v. Carter, 16 S.W.3d 762, 765 (Tenn.

2000). Findings based on evidence that do not involve issues of credibility are reviewed de novo by

this court without a presumption of correctness. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).

The question of whether Rule 41 of the TennesseeRules of Criminal Procedure requires suppression

of the evidence in this case is a question of law which we review de novo with no presumption of

correctness afforded to the judgment of the court below. State v. Coffee, 54 S.W.3d 231, 232 (Tenn.

2001). The standard of review for the magistrate’s determination of probable cause for the issuance

of the search warrant is whether the magistrate had a substantial basis for concluding that the search

warrant would yield evidence of wrongdoing. State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989).

“A magistrate’s determination of probable cause is accorded ‘great deference’ by a reviewing court.”

Id. at 431-32.

The Affidavit, in pertinent part, includes the following recitation of facts as provided by the

affiant, Investigator Chandler:

After receiving numerous complaints on the above mentioned address I have sent an

informant to 1401 Howard in Covington, Tipton County, Tennessee within the last

72 hours and purchased approximately one (1) ounce of marijuana from Maurice

Nash for the purpose of developing enough probable cause to request a search

warrant. The purchase was monitored and witnessed by me. I have used this

informant on over a dozen controlled buys in the past which have resulted in several

legal search warrants, arrests and convictions and several pending indictments.

The following proof was introduced at the suppression hearing:

PROSECUTOR: Tell me where you were - - where you observed.

CHANDLER: Okay. I was almost directly across the street.

PROSECUTOR: And your CI went to the door.

CHANDLER: Yes, sir.

PROSECUTOR: Who did you see at that point?

. . . 

CHANDLER: Mr. Howard and Mr. Nash.

. . .

CHANDLER: [Appellant] was on the couch at the time the deal took place but I had

seen him pass in front of the door. He was on crutches at that time.

PROSECUTOR: But your CI was wearing a wire?

CHANDLER: Yes, sir.

PROSECUTOR: Could you hear what took place?
The Appellant challenges this statement in the affidavit that Investigator Chandler “witnessed” the illegal drug 2

activity as his testimony at the suppression hearing indicated that he “didn’t see the actual transaction go down.”

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CHANDLER: Yes, sir. I could listen to the transaction go down. I recognized Mr.

Nash’s voice on the tape.

. . . 

CHANDLER: The CI called him by his name - - called Maurice by his name.

. . . 

PROSECUTOR: Is there any doubt in your mind that that was the voice of Maurice

Nash?

CHANDLER: No doubt at all.

In denying the Appellant’s motion to suppress, the trial court recited the following findings:

The affidavit sworn to procure the search warrant is supported by information

provided by an officer who personally observed an informant enter a residence and

heard a drug transaction by way of a monitoring device. The court finds that this

information is presumed reliable as provided by the officer. State v. Melson, 638

S.W.2d 342; State v. Brown, 638 S.W.2d 436. The court heard no proof to rebut the

presumption. The court finds the warrant was adequate.

. . . 

The motion to suppress is denied.

We agree with these findings and the trial court’s conclusion that the affidavit was sufficient to

establish probable cause. The search warrant in this case was issued based upon information

personally observed by the affiant and also upon information which he overheard by means of an

electronic listening device. The affidavit states that one ounce of marijuana was purchased from the

Appellant at the 1401 Howard Street address. The affidavit clearly states that the purchase was

“monitored and witnessed” by the affiant. Finally, the affidavit provides that the informant has been 2

used by the police in “over a dozen controlled buys in the past which have resulted in several legal

search warrants, arrests and convictions.” The affidavit sufficiently informed the magistrate of both

(1) the basis for the informant’s knowledge, and (2) a basis establishing the informant’s credibility.

Spinelli v. United States, 393 U.S. 410, 412-13, 89 S. Ct. 584, 587 (1969); Aguilar v. Texas, 378

U.S. 108, 114, 84 S. Ct. 1509, 1514 (1964); Jacumin, 778 S.W.2d at 436.

Accordingly, we find the affidavit was sufficient to establish probable cause and that no false

or misleading statements were contained in the affidavit or in the procurement of the warrant. State

v. Little, 560 S.W.2d 403, 407 (Tenn. 1978). Moreover, the basis of knowledge of both the informant

and affiant and the informant’s reliability can be determined from the entirety of the affidavit. State

v. Melson, 638 S.W.2d 342, 356 (Tenn. 1982). The trial court properly denied the Appellant’s

motion to suppress.
Prosecutor: So its my understanding that before the buy took place, you saw

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[the Appellant] in the house?

Chandler: Yes.

Prosecutor: And then you saw him after the buy took place?

Chandler: Yes.

Although the trial court, after a jury-out 404(b) hearing, permitted introduction of the above testimony, it also 4

found “that the unfair prejudice outweighed the probative value with regard to the conclusion made as to who actually

did the sale,” and directed Investigator Chandler not to identify the Appellant as the seller. Although the trial court

attempted to shield from the jury the fact that it was the Appellant who sold drugs to the police informant, little was left

to the jury’s imagination from the proof introduced that the Appellant was, in fact, the drug seller.

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B. Admission of Prior Drug Activity

We next examine the Appellant’s argument that the trial court erred by denying his motion

in limine which sought exclusion of any evidence pertaining to an alleged drug transaction between

him and an informant the previous night. The Appellant contends that the introduction of this

testimony was “unfairly prejudicial” and exceeded the scope of those narrowly defined exceptions

contained within Rule 404(b) of the Tennessee Rules of Evidence.

At trial, the State was permitted to introduce the following proof with regard to the

Appellant’s prior drug activity, which we summarize as follows: 

On October 26, 1999, Investigator Chandler testified that he positioned himself

across the street from the 1401 Howard Street address and then directed two

informants into the house in an attempt to purchase drugs. Chandler related that he

had been surveilling the house for two hours at this time and had determined that the

only occupants of the house were the Appellant and Brian Howard. Mr. Howard

pretty much stayed at the doorway of the house most of the time, either on the porch

or at the doorway. . . . The CI’s walked up, one went into the house, one stayed at the

door. Chandler observed the Appellant in the house. After about forty-five seconds 3

to a minute, not much more than a minute . . . they came back out and Chandler

followed his informants to a prearranged meeting place. The informants delivered

to Chandler one bag of a green leafymaterial that field-tested positive for marijuana.

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The State argues that the testimony concerning the alleged drug sale on the previous night was

proper, and was offered to establish a common scheme or plan, i.e., that the house was being utilized

by the Appellant for the sole purpose of selling drugs. On appeal, the State asserts that at trial the

“State’s theory was that the [Appellant] used 1401 Howard Street as his ‘stash house’ and Chandler’s

testimony ‘was highly probative to this matter.’”

Rule 404(b) of the Tennessee Rules of Evidence provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity with the character trait.
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It may, however, be admissible for other purposes. The conditions which must be

satisfied before allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s

presence;

(2) The court must determine that a material issue exists other

than conduct conforming with a character trait and must upon request

state on the record the material issue, the ruling, and the reasons for

admitting the evidence; and 

(3) The court must exclude the evidence if its probative value is

outweighed by the danger of unfair prejudice.

In State v. Mallard, 40 S.W.3d 473, 487 (Tenn. 2001), our supreme court recently held “evidence

that the defendant has committed some other crime wholly independent of that for which he is

charged, even though it is a crime of the same character, is usually not admissible because it is

irrelevant.” Nonetheless, where the prior crime “is relevant to some matter actually in issue in the

case on trial and if its probative value as evidence of such matter in issue is not outweighed by its

prejudicial effect upon the defendant, then such evidence may be properly admitted.” Mallard, 40

S.W.3d at 487. Additionally, this court has previously stated, “only in an exceptional case will

another crime, wrong, or bad act be relevant to an issue other than the accused’s character. Such

exceptional cases include identity, intent, motive, opportunity, or rebuttal of mistake or accident.”

State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).

First, we are not persuaded by the State’s argument that admission of the Appellant’s prior

drug sale was relevant to establish a common scheme or plan. In order to qualify as a common

scheme or plan, the modus operandi must be so unique or distinctive as to be like a signature. State

v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). The offense in the instant case, although

of the same character as the prior drug sale, was clearly not so distinctive as to be like a signature.

At the hearing on the motion, the trial court permitted introduction of the prior drug sale but

for different grounds than those now argued by the State:

There is a relevant issue as to the connection of the [Appellant] with the premises

involved in 1401 Howard in Covington where the controlled substance was found,

upon execution of the warrant . . . so the key issue for the jury is the connection of

the [Appellant] to the premises.”

We believe this finding correctly states the relevant issue which, in effect, is whether the Appellant

constructively possessed the marijuana found at 1401 Howard Street. We also find material to the

issue of constructive possession, the fact that the Appellant sold marijuana to the informant at the

Howard Street address on October 26 , and that marijuana was seized from the same premises on th
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the following day. These facts are relevant to the question of whetherthe Appellant had control over

the house and knowledge that marijuana was present. We agree with the trial court’s findings (1)

that the probative value of the Appellant’s unlawful activities at the Howard Street address was not

outweighed by the danger of unfair prejudice, Tennessee Rule of Evidence 404(b)(3); and (2) that

proof was shown by clear and convincing evidence that the Appellant committed the crime. State

v. Parton, 694 S.W.2d 293, 303 (Tenn. 1985). This issue is without merit.

C. Sufficiency of the Evidence

The Appellant maintains that the evidence presented at trial is insufficient to support the

jury’s verdict of guilty. Specifically, the Appellant asserts that the evidence introduced against him

was “purely circumstantial,” and argues that the State failed to prove that he “was in possession and

control of the premises at 1401 Howard Street.”

A jury conviction removes the presumption of innocence with which a defendant is cloaked

and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of

demonstrating that the evidence is sufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Likewise, it is not the duty of this

court to revisit questions of witness credibility on appeal, that function being within the province of

the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison,

868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish that the

evidence presented at trial was so deficient that no reasonable trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513

U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). The State is entitled to the strongest

legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State

v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).

A crime may be established by circumstantial evidence alone. State v. Tharpe, 726 S.W.2d

896, 899-900 (Tenn. 1987). However, before an accused may be convicted of a criminal offense

based only upon circumstantial evidence, the facts and circumstances “must be so strong and cogent

as to exclude every other reasonable hypothesis save the guilt of the defendant.” State v. Crawford,

470 S.W.2d 610, 612 (Tenn. 1971). In other words, a conviction may not rest solely upon

conjecture, guess, speculation, or a mere possibility. Tharpe, 726 S.W.2d at 900. Instead, a “web

of guilt must be woven around the defendant from which he cannot escape and from which facts and

circumstances [the fact finder] could draw no other reasonable inference save the guilt of the

defendant beyond a reasonable doubt.” State v. Sexton, 917 S.W.2d 263, 265 (Tenn. Crim. App.

1995) (emphasis added).

A conviction for possession of a controlled substance may be based upon actual or

constructive possession. State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991); State v.

Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Before a person can be found to

constructively possess a drug, it must first appear that the person has the power and intention at any
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given time to exercise dominion and control over the drugs either directly or through others. State

v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981). 

We acknowledge that in reviewing a conviction for possession of a controlled substance, the

dispositive question is not ownership or whether the accused had control over the place where the

drugs were found; rather, the question is whether the accused had actual or constructive possession

of the drugs themselves. Indeed, under a theory of constructive possession, physical presence or

dominion over the drugs is not required. To the contrary, constructive possession only requires “the

power and intention . . . to exercise dominion and control” over the drugs either directly or

indirectly. Id. at 125. Obviously, proof that the accused had ownership or control over the property

where contraband is kept may help resolve the question of constructive possession because it gives

rise to an inference of knowledge and possession of the contraband. See State v. Brown, 915 S.W.2d

3, 7-8 (Tenn. Crim. App. 1995); State v. Jackson, No. M1998-00035-CCA-R3-CD (Tenn. Crim.

App. at Nashville, May 5, 2000). Nonetheless, it is not a prerequisite for conviction. 

The proof, in the light most favorable to the State, established that on the night of October

26 , the Appellant was one of two individuals involved in the sale of marijuana at a house located th

at 1401 Howard Street. The next day, following execution of a search warrant, marijuana was again

located at the same address. Virtually no evidence was found to establish that the Howard Street

house was being used as a residence by anyone. Although neither the Appellant nor any of his

possessions were found in the house at the time of the search, the police estimated that the Appellant

was present “80 to 85%” of the time during their periods of surveillance. From these facts, we find

sufficient evidence to conclude that the premises were in the Appellant’s control, and that he

possessed the “power and intention to exercise dominion and control” over the marijuana seized by

the police during the search. Accordingly, we find the proof sufficient to establish that the Appellant

knowingly possessed marijuana in excess of .5 ounce with the intent to deliver. See Tenn. Code

Ann. § 39-17-417(g)(1). 

CONCLUSION

We find that the trial court properly denied the Appellant’s motion in limine seeking

exclusion of the Appellant’s prior drug activity at the Howard Street address. Moreover, we

conclude that the affidavit contained sufficient information for the magistrate to find probable cause

for the issuance of the warrant. With regard to the Appellant’s sufficiency argument, we find the

evidence legally sufficient to support the jury’s verdict. Accordingly, the judgment of conviction

for felony possession of marijuana in excess of one-half ounce with the intent to deliver is affirmed.

___________________________________ 

DAVID G. HAYES, JUDGE