### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 10, 200 7

STA TE OF TEN NES SEE v. CA LVIN RE NA RD STEE L

Appeal f rom the Circ uit Court for Laud erdale County No. 7900 Joseph H. Walk er, III, Judge

No. W2006-02032-C CA-R 3-CD - F iled October 2, 2007

Th e de fe nd a nt, Ca lvi n Ren a rd Ste e l, wa s con vic te d by a L a ud e rd a le County jur

y of po sse ssi on

wi th the intent to deliver one-ha lf g ram or more of coca ine, a Class B f elony , and re ceive d a sente nce of twelve y ear s as a Rang e I I , multipl e off ender . I n this a

ppeal, he conte nds that the evidenc e wa s not

su ff ic ie nt t o s up po rt

his c on vic tio n a

nd that th e tr ia l c ourt

e rr e d in de nyinghis mot ion to s up pr e ss evidenc e. We conc lude that no er ror e x ists, and we af

firm the judg ment of the trial c ourt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , P.J ., delivere d the opinion of the cour t, in which D AVI D G. H AYES and A L AN E. G L EN N , J J ., joined.

Gar y F. Antr ican, District Public Defe nder, a nd David S. Stockton, Assist ant Public Defe nder ( on appea l); and D. Micha el Dunava nt, Ripl ey , Tenne ssee ( at trial), f or the a ppellant, C al v i n Renard Ste e l.

Rob e rt E. Coo pe r, Jr., Att orn ey

Gen eral andRe po rt er; Benj ami n A. Ball , As si st ant At to rney Gen era l; and Tra cey

Anne B rew er, A ssistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

Th e de fe nd a nt w a s arr e ste d d ur ingthe e xec uti on of

a se a rc h w a rr a nt a

nd wa s c ha rg e d w ith
po sse ssi on

wi th t he int e nt t o d e liv e r c oc a ine a nd po sse ssi on of mari jua na

. At the tr ia l, L a

ud e rd a le County Sheriff ’s I nvestig ator B rian Ke lly testified that he a

nd I nvestig ator John Thompson often

wo rk e d to g e the r t o inve sti g a te dr ug c ri me s, us ua lly by c on du c tin g un de rc ov e r dr ugbuy op e ratio ns

. He e xpla ine d th a t c oc a ine c a n a pp e a r e ith e r i n p ow de r f

or m or a s c oc a ine ba se in r oc k f

or m. H e sa id

c oc a ine c an b e c ha

ng e d f ro m it s p ow de r fo rm

to r oc k f or m by c oo kin g it w ithc he mic a ls. He sa id it can be he ated using a microwave oven. He said that in his ex perie nce, $20 c ould buy a small rock of coc aine.-2-

I nvestig ator Ke lly

testified that on J une 29, 2005, he, Thompson, Deputy J err y Mitchell, and I nv e sti g a tor

Gr e g g L a nd pla

nn e d to e xec ute tw o se a rc h wa rr a nts

. On e wa s fo r a se a rc h of a ho us e located on Ce dar Stree t in Halls, which he said wa s not the d efe ndant’s re sidence . He sa id it was

an u n fu rnished “she ll of a house” without running w ater or ele ctricity . He sa id that a wea pon, a microwave oven, a

nd some miscellaneous items we re found in the house. He said an e x tension cord

connec ted the microw ave ove n to a neig hboring house.

I nvestig ator Ke lly

testified that Thompson was driving when they approa ched the house on Cedar Stre et. He sa id that when they turned onto Cedar

Street, he saw a

black Me rcur

y Mountaineer on the s t re et i n fr o nt of the house they intended to sea

rch a nd the def

endant lea

ning into the
passeng er’ s side window. He said that the M ountaineer left as they drove up a

nd that the def

endant walked onto the property to be searche d on Cedar Stre et. He sa id that they left their ve hicle and that he and T hompson went toward the defe ndant bec ause the defe ndant appea red to have bee n making a drugdeal whe n he wa s on the stree t w ith the Mountaineer. H e said the de fenda nt walked to a tr ee that was on the proper

ty , turned, a

nd walked towa

rd the c urb, at whic h point Kelly encounte red the defe ndant. Kelly

said Tho m p s o n , wh o had wa lked to the base of the tre e, told him to detain the defe ndant. He ha

ndcuff ed the de fenda

nt and found a

bag of powde r coc aine in his p o ck et , which he sai d was part ia lly

vis ibl e fr om o uts ide the po c ke t, a s w e ll a s $ 24 9 in c a sh . H e sa id t

he c a sh included twenty -dollar bi l ls but no hundred or fif ty -dollar bills, althoug h he could not re member what other

curr ency was include d.

I nvestig ator Ke lly

testified that he reme mbere d five other people be ing on the proper ty and that ot he r d ru g s w e re fo un d a

ro un d o the r p e op le on

the pr op e rt

y that day

. He sa id d

ru g pa ra ph e rn a lia

w a s n o tf o u n d o n t h e d e f

e n d a n t , a n d

h e d i d n o tr e c a l l an y b e i n g f

o u n d e l s e w h e r e o n t h e p r o p e rt y. H e s a id th a t i n h is e xp e r ie n c e , p e o p le s e ll in g c o c a in e in r o c k f o r m d id n o t p r o v id e an y

th in g f or

c lie nts in w hic h to sto re the dr ug s b ut that coc a ine so ld in pow de r fo rm wo uld have to b e in s ome kin d o f c on ta ine r. He sa id a t le a st thr e e pe op le we re a rr e ste d a t th e Ce da r S tr e e t pr op e rt

y . H e sa id

one man r an aw ay

from the pr operty

when of fice rs ar rived and was pursued by Mitchell. He c alled the house they

sear ched on Ce dar Stree t a “dr ug house.”

I nv e sti g a tor

Ke lly te sti fi e d th a t af

te r l e a vin g Ce da

r S tr e e t, h e a nd

the oth e r o ff

ic e rs we nt t o the def endant’ s residenc e in G ates to e x ecute a second sear ch war rant, which they

had bef ore the y

arr ive d at th e ho us e in H a lls . H e sa id t hat un lik e the ho us e on Ce da r Str e e t, t he de fe nd a nt’ s h ou se

was a furnished home

. He said the defe ndant was with the m when they executed the se arc h war

rant

on the de fe nd a nt’ s r e sid e nc e . H e sa id t he re we re se ve ra l sm a ll c hil dr e n in the re sid e nc e , a lon g wi th the def endant’ s wife, Avis Steel, and another woman. D rug s were rec overe d from the de fenda nt’s home.

On cr oss-examination, Kelly testified that neither

he nor an y o t h er office rs stopped the Mountaineer

they saw on Ceda

r Street a nd that he did not know who the driver or passe ng ers in that

car wer e. He said that based on his e x p er i en ce, he thought the de fenda nt was selling drug s to the people in the Mountaine er a nd that he pre fer

red to foc us h i s att ention on drug sellers ra ther than buy ers. He acknowledg ed that he did not see any money or drug s while watc hing the defe ndant and-3-

the Mountainee r. Howe ver, he said that bec ause he knew the house on Cedar S t re et t o be a dr ug house and be cause it was common for dr ug transac tions to t ake pla ce in vehicles, he believed the de f e n d an t to b e inv o lv e d in a dr u g tr a n s a c ti o n

. H e s a id h e a ls o kn e w th e d e f e n d a n t to b e a drug seller, not a dr

ug buy er. H e said that he was not the af fiant to the sea

rch w arr ant and that he was assisting Thompson, who wa s the aff iant, in the execution of the wa rra nt. He said Rickey

Taylor, who went by

the name Big Rick, owned the house on Cedar Street. He sa id Taylor was not at the house whe n they executed the se arc h war rant a nd was not ar

rested in c onnection with the eve nts of J une 29, 2005. He acknow ledg ed that he never saw the defe ndant enter Taylor’s house. He said the other peo pl e on the pr op e rt y on June 29 we re Ca ssa

nd ra De nn is, Dw a y

ne Di c ke rs on , L e wi s Wil liams, and Dontae S awy er. He said that he wa s not able to identify a man who r an aw ay

from the prope rty

but that people sa id it was Trent L igg ins. Kelly was only able to re call that De nnis was

arr e ste d f or po sse ssi on

of a Sc he du le I Idr

uga nd no t who els e was arre ste d. He sa id h e de a lt
sp e c if ic a lly wi th t he de fe nd a nt an d tha t L a nd a rr e ste d th e oth e rs . H e sa id t hat he e nte re d th e ho us e afte r Thompson and L and had beg un to sear ch it and that nothing indicated that the def endant ha d been in the house . He sa id the y did not intend to f ind the defe ndant at Taylor’s house a nd ag ree d that it was happe nstance that the def endant wa s there.

I nvestig ator Ke lly

testified that he ha

ndcuff ed the de fenda

nt after order ing him to t he g round. He sa id he probably pulled his wea pon and point ed it at t he defenda nt. He said that he saw a man

run aw ay but that the defe ndant did not attempt to run. He said the ba g of powder coca ine was f

ound in the defendant’s le ft front pa nts pocket and w as par

tially in view. He sa id he found no we apons on the def

endant or any other e vidence of drug s on hi s person. He said he did not advise the defe ndant of his Miranda rig hts upon arr esting him, but he noted that he did not ask the def endant
any questions and t h at t h e d efe ndant did not talk to him. Kelly said he a

nd the other of

fice rs transporte d the defe ndant to the defe ndant’s house in the ir underc over vehicle. He a g ree d that the aim of the warr an t o f the de fenda nt’s house in Gate s was to sea rch f or marijuana

and re lated marijuana para pherna lia. He sa id he did not participate in the sear ch of the de fenda nt’s residenc e and stay ed outside the re sidence

.

I nvestig ator Ke lly

testified that he ha d known the def endant and never

knew the de fenda

nt to be employ ed. He said he wa s not a war e that the defe ndant informed the intake office r at jail that he wa s e mpl oy e d. He sa id t hat he did no t f ind a ny c oc a ine ro c ks on the de fe nd a nt an d th a t he did not know of any

drug packa g ing pa

raphe rnalia that was found in the de fenda nt’s residenc e.

I nvestig ator John Thompson t e s ti f ie d that he had w orked f

or the L auder dale County

Sheriff’ s Depa rtment investigating dr

ug crimes since 1992 and had pa rticipated in hundreds of unde rcove r drug investigations. He said a rock of coca ine base usually weig hed about one- tenth of a g ram a nd sold f or about $20. He said he wa s the aff iant on the two sea

rch w arr ants executed on June 29, 2005. He sa id his targ et of the se arc h of Rickey Taylor’s house on Ceda r Street wa s any one on that
proper ty that was involved in illeg al ac tivity . He said he wa s driving the underc over ve hicle down Cedar Stre et en r oute to execut e t h e warra nt when he sa

w the def endant lea

ning towa rd the fr ont passeng er w indow of a bla ck Mer cury Mountaineer . He sa id the defe ndant appe are d to be eng ag ed in a dr ugtr a ns a c tio n. He sa id t hat a s th e Mo un tain e e r d ro ve pa st h is v e hic le and his ve hic le-4-

approa ched the curb in fr ont of Taylor’s house, the de fenda n t s t ep p ed int o the y ard of Taylor’s house. He said he g ot out of the vehicle, order ed all people in the y ard to the g round, announc ed him se lf a s a po lic e of fi c e r, a nd saw the de fe nd a nt d isc a rd a c le a r pla sti c ba g a t the ba se of a tr e e in the y ard. H e said that the de fenda nt was orde red to the g round and handcuff ed by Kelly and that he retrie ved the disca

rded ba g , which he disc overe d contained c ocaine . He sa id that he saw Tr ent L igg ins run from the sc ene a s the offic ers a pproac hed, that L igg ins did not run toward the tree wher e he fo un d th e ba g , a

nd that L ig g ins le ft the sc e ne be fo re the de fe nd a nt t hr e w the ba g . T ho mps on

sa id he also saw

L ewis Will iams, Dontae Saw y er, Dway ne Dicke rson, and Cassa

ndra D ennis in the front
y ard of Taylor’s house on J une 29. He said that in addition to the bag of coca ine t hat the def endant threw a nd the bag of coca ine Kelly found on the defe ndant’s per son, office rs also re cover ed six teen bag s of m arijuana thrown by Dicker son, some cra ck cocaine and m arijuana from Dennis, and a knife from De nnis. He said that inside the house he found a microwave with an extension cord running
to a ne ig hb o r in g h o u s e a n d a g la s s ja r c o n ta in in g a w h it e s u

b s ta n c e a p p e a r in g to b e c o c a in e base. Th omp so n e sti ma te d that the ba g the de fe nd a nt thr e w tow a rd the tr e e c on ta ine d a bo ut $ 20 0 w or

th of coc aine ba se and that the powder coca ine i n the bag in the defendant’s poc ket was w orth about $300 to $350. He said $249 in c ash was also rec overe d from the defe ndant. He said that a number of fa c tor s in fo rm e d h is de c isi on to ar re st the de fe nd a nt fo r pos se ssi on of c oc a ine wi th the int e nt t o deliver, including the location of the arr est, his pr ior knowledg e of the defe ndant, his knowledg e of

coca ine base sellers in the a rea , and the amount of coca ine re cover ed.

I nvestig ator Thompson testified that a fter a rre sting the people on Cedar Street and se arc hing the prope rty

there , he and the other off icer s went to the defe ndant’s residenc e in Gate s. He said that
t h e d ef en d an tac co mp an i edh i m i n t h e re s i d en ce , t h at h e t al k edt o t h e d ef en d an t ’s wi fe ab o u tdru gs being in the residenc e, and that the defendant’s wife re trieved a small amount of marijuana from the top of the re frig erator. He sa id the defe ndant claimed ow nership of the marijuana

.
On cross-examination, Thompson testified t hat he did not know who owned the house on Cedar Stre et into which the extension cord wa s plugg ed and did n o t i n v estig ate the ow ners. He acknow ledg ed that L igg ins r an near the tree wher e he found the bag of coca ine. He sa id he was not

conce rned w ith arr es t i n g L igg ins or the people in the Mounta ineer beca use his focus wa s on the
proper ty to be sea rche d. He said he also did not stop the Mountaineer be cause he would rather g et the deliver er of drug s, who he believed was the defe ndant, than the possessor. He sa id that the bag found at the ba se of the tr ee did not conta in rocks separ ated into smaller bag s. He said that no one

wa s p re s en ti n T ay l o r’ s h o u s e wh en t h e of fi ce rs s ea rc h edi tan d

t h at h e f o u n d n o p er s o n al b el o n gi n gs

o f t h e d ef en d an t i n t h e ho u s e. He ac kn o wl ed ged t h at t h e h o u s e h adn o ru n n i n g wa t er , ev en t h o u gh

c oc a ine ba se is ma de us ing wate r. He sa id he did no t se ize the mic ro wa

ve or du st i t f or fi ng e rp ri nts

. He did not find any

scale s, razor blade s, or other c utting instruments on the def endant or in the defe ndant’s house. H e said lab r eports indicate d that De n n i s wa s in possession of 2.8 g rams of

coca ine, that she wa s char g ed with possession of cocaine with the i ntent to deliver, but that she wa s convicted of

simple possession.

Te nn e sse e B ur e a

u o f I nv e sti g a tio n Sp e c ia l A g e nt Je ssi c a Ma rq ue z te sti fi e d a s a

n e xpe rt in dr ugide nti fi c a tio n. She a na ly zed a n o ff -w hit e c hunk

y su bs tanc e fo un d in a

pla sti c ba g and

wh ite-5-

powder found in another plastic bag

. She said that the rock was one g ram of coca ine and the pow der was 3.2 g rams of c ocaine . She said that powder coca ine ca

n be turne d into rock coc aine using bakin g so da , w a te r, a nd

he a t and tha t th is co ul d be a c c omp lis he d u sin g a mic ro wa ve . Sh e a lso

ana ly zed g re e n p lant m a te ri a l g ive n to he r b y Th omp so n, wh ic h sh e de te rm ine d to be thr e e g ra ms of marijuana

.

J oanne Spivey , a friend of the defe ndant, testified for the def ense that she saw the de fenda nt

on J une 29, 2005, on Cedar Street in H alls. She said she wa s the passeng er in a vehicle dr iving down Ce da r S tr e e t in fr on t of Ta y lor ’s ho us e wh e n she sa

w the de fe nd a nt. She sa id that sh e wa nte d to ta lk
to him and that the dr iver stopped the c ar. She sa id she talked a nd laug hed with the def

endant f or two or three minutes. She said that she did not buy or sell any drug s from or to the def endant a nd that they did not hand any

thing to ea ch other . She said she later drove by the house a g ain and sa

w Thompson and other of

fice rs there order ing e veryone to the g round.

Dontae Saw y er testified that the defe ndant’s wife , Avis Steel, was his cousin. He sa id he was
prese nt at Tay lor’s house on J une 29, 2005. He said he a rrived w ith Cassandra De nnis two or three min ute s b e fo re the po lic e a rr ive d. He sa id the y we re dr ivi ngby a nd sto pp e d at th e ho us e to t a lk w ith his f riends who wer e there

. He said they did not enter the house but stay ed in the fr ont y ard a long with five or six ot her pe ople, including the def endant. He said he did not buy or sell drug s from or to the defe ndant and did not see any one else do so. He said that the pol ice or dere d ever y one to the
g round as soon as they arr ived and that he did not see w hat the def endant wa s doing at that time. He said he saw

L igg ins run throug h the y ard a way from the house

. He sa id he did not see the de fenda nt talking w ith any one in a ve hicle and did not see any one throw any thing on the g round. He said he did not see the de fenda

nt g o inside the house. He said he did not have any drug s on him that day

and
was not ar

rested.

On c ro ss- e xami natio n, Sawy e r t e sti fi e d th a t he a rr ive d at the ho us e a ro un d 4 :00 or 5:0 0 p .m. He sa id that the hous e did not have a ny running water

or ele ctricity

and that no one lived in it. He said he never hear d the house called a drughouse or c rac k house. Sawy er sa id he could identify the locations of eve ry one at the house befor e the police arr ived, even though he said he ha d only been the re tw o o r t

hr e e min ute s.

L ewis Will iams testified that he wa s a fr iend of the de fenda nt. He said that on J une 29, 2005, h e s t o p p edb y

T ay l o r’ s h o u s e t o re s t o n t h e p o rc h af t er wa s h i n g h i s ca r. He s ai d p eo p l e l i k edt o go to that house bec ause the re was a larg e tre e in the y ard that provided a lot of sha de. He said it was common for pe ople to be ther e. He said he was there about thirty minutes be fore the police ar rived. He said he di d

n o t r e me mb e r

h o w lo n g th e d e f

e n d a n t w a s th e r e o r

w h e th e r h e ta lk e d

to the defe ndant. He sa i d that he did not buy drug s from or se ll drug s to the defe ndant that day and that he did not see the defe ndant in possession of any drug s. He said he did not see the defe ndant talking to p e op le in v e hic le s and

did no t kn owwh e re the de fe nd a nt w a s w he n th e po lic e a rr ive d. He sa id he neve r saw the defe ndant g o into the house. On cr oss-examination, L ewis said people went to the house often e ven thoug h it did not have running water or electricity

. He said he was not aw are there

was a microwave in the house. H e said the de fenda nt was re lated to him throug h marria g e.-6-

The de fenda

nt’s wife, A vis St eel, testified that on J une 29, 2005, she was at home with her four c hildren, two cu s t omers of he r home-ba sed hair c utting business, and possibly some other children. S h e s ai d t h at t he def endant wa s employ ed at Nor thdown I ndustries in Dy ersbur g at the time but that he was not workingthat day beca use it wa s the wee kend. She said she did not know why the def endant wa s in Halls that day . She said she re ceive d a telephone call that the police had raide d the house on Ceda r Street, dr ove to the house and saw that the defe ndant was a rre sted, and
returne d home. She said that the police came to her house a nd that Thompson asked if she had any drug s in the house. She responde d that she had just a “ blunt” in the house that belong ed to her and retrie ved it for him from atop the ref rig erator. She s ai d t h at she told Thompson the marijuana be lon g e d to he r bu t that th e de fe nd a nt c la ime d o wn e rs hip of it t o avo id h e r g oin g to j a il. She sa id she wa s not arre sted for posse ssion of the marijuana until October 3. She said she pled g uilty and

rec eived pr obation. She said that the marijuana was hers an d t h at she had no know ledg e of the defe ndant possessing coca ine on J une 29. She said t h e p o l i ce d id not find any coca ine or other drug s, beside the mar ijuana she g ave the m, at her house that day

. On cr oss-examination, Mrs. St eel was shown a

cale ndar f

rom J une 2005 and a cknowledg ed that June 29 was a we ekday . She said her h u s b an d s h o u l d h a v e b e e n w o r

k i n g t h a td a y.

The de fenda

nt testified that he wa s working at Northdown I ndustries on J u n e 29, 2005, during the first shift, which wa s from 6:00 a.m. to 2:30 p.m. He said he went to work that day but left at 1: 0 0 b ec au s e wor

k was slow. He said he we nt to Cedar Stree t in Halls after work, c alled a friend, and boug ht a

n “eig ht ba ll” of powder coca ine, which he said was about the siz e of a fing ertip. He sa id t hat he wa s a dd ic te d to c oc a ine and that h is w if

e wa s n ot a

wa re of his a dd ic tio n. He sa id he h a d b e e n p a id th a t d a y a n d c a s h e d h is p a y c h e c k b e f o r e g o in g to Ce d a r Str e e t. H e s a id h e had over $300 w ith him and spent $100 on the coc aine. He said he boug ht the coca ine from a friend w ho was in a ve hicle, while he was on foot. He said that he boug ht the coca ine for his pe rsonal use a nd intended to snort it but that he never was able to. He sa id he did not sell any coca ine to any one. He said he wa s in the are a, wa iting for a ride home, and ha d just talked to s ome people in a vehicle w hen the police a

rrived. H e said he had just walked off the street into the y ard w hen the police order ed

e ve ryon e to t

he g ro un d. He sa id h e did n ot h ave a ny dr ug s a sid e fr om t

he po wd e r c oc a ine in h is pocket and did not throw any thing to the g round when the police a rrived. H e said the r ock coc aine office rs found ne ar the base of a tree did not belong to him. He said Trent L igg ins ran past that tre e

and int o a ne ig hb or ingy a rd . T he de fe nd a nt sa id he did no t go int o T a y lor ’s ho us e a nd did no t us e the microwa

ve to make c rac k coca ine. He sa id the house wa s known as a meeting place , not a drug house.

The de fenda

nt te stified that office rs took him to his house a fter he was a rre sted. He sa id that when they

arr ived, Thompson asked his wife if there wer e any drug s in the house and she broug ht him some marijuana. The defe ndant said he w as in ha ndcuff s and was being led by

Thompson. He

sa id h e tol d T ho mps on

the mari jua na wa s h is b e c a

us e he wa nte d to pr ote c t hi s w if

e fr om g oin g to jail. He ac knowledg ed that he ha d a prior misdeme anor the ft conviction but said he was telling the truth that the only

drug s in his possession were the pow der c ocaine he intended to use

.-7-

On cr oss-examination, the defenda nt said he did not have rec ords of the pa y chec k he said he

rec eived on June 29, 2005, or any rec ords ver ifying his e mploy ment at Northdown I

ndustries. He said it was customary

for him to be paid in the middl e of the week. He said he boug ht the powder

coca ine on Cedar

Street and a cknowledg ed that people sell and deliver drug s on that street.

I nvestig ator Thompson testified in re buttal that he had no doubt that the defe ndant threwthe bag of roc k coca ine at the ba se of the tree

. He acknow ledg ed that other people we re on the scene , some of whom we re a lso found to have dr ug s in their possession.

Ba sed on t he for eg oing e vidence , the jury returne d a ver dict of g uilty of possession of coc aine with the intent to deliver and n o t gu i l t y o f poss ession of marijuana . The c ourt sentenc ed the defe ndant to twelve y ear s, as a Rang e I Ioffe nder.

I. SUFF ICIENCY OF THE E VIDENCE

The de fenda

nt challeng es the suff

iciency of the c onvicting e vidence . He a rg ues that the evidenc e was insufficient to prove that he had the intent to deliver the c ocaine . The state c ounters that th e e vid e nc e su

pp or ts the jur y ’s c on vic tio n o f guil ty

be y on d a re a so na ble do ub t.

T h e d e f e n d a n tw a s c o n v i c t e d

o f t h e p o s s e s s i o n o f

o n e

- h a l f g r a m o rm o r e o f a S c h e d u l e II drug (coc aine) with the i ntent to deliver unde r Tenne ssee Code A nnotated sec tion 39-17-417(a )(4)

. Our s tand ard

of re vie w w he n the defe nd a nt q ue sti on s th e su ff

ic ie nc y of the e vid e nc e on

a pp e a l is “whe ther, a fter viewing the evidence in the light most favora ble to the prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime bey ond a re asonable doubt.” J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. C t. 2781, 2789 (1979). We do not rew eig h the evidenc e; rather,

we pr e su me that th e jur

y ha s r e so lve d a ll c on fl ic ts i n th e tes ti mony and dr a wn a ll r e a so na

ble infere nces f

rom the evide nce in f

avor of th e s t at e. See State v. Shef field, 676 S.W.2d 542, 547 (T e nn . 198 4) ; State v. Ca bb a g e , 5 71 S.W. 2d

83 2, 83 5 ( Te nn . 1 97 8) . Q ue sti on s r e g a rd ingwi tne ss

cre dibilit y , conflicts in testimony , and the we ight a nd value to be g iven to evidenc e we re r esolved by the jury . See State v. Bla nd, 958 S.W .2d 651, 659 (Tenn. 1997) . “A c rime may be esta blished by direc t evidence
, circ umstantial e vidence
, or a combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)

.

The o n e el em en t prese nt in almost all criminal offense s which is most often proven by circ umstantial evidence is the culpable me ntal state. See State v. Hall, 490 S.W .2d 495, 496 (Tenn. 1973). Other

than an a ccuse d stating his or her purpose, intent, or thinking at the re levant times, the trier of fac t is left to determine the mental state by making infere nces dr awn f rom the surrounding circ umstances f

ound by it to ex ist. S ee, e .g ., Poag v. State, 567 S.W .2d 775 (Tenn. Crim. App. 1978). Tenne ssee Code Annotated section 39-17-419 states, “I t ma y be infe rre d from the amount of a c on tr oll e d s ub sta

nc e or su bs tanc e s p os se sse d b y

a n o ff e nd e r, a lon g wi th ot her

re le va nt f a c ts

surr ound ingthe a rr e st, that th e c on tr oll e d s ub sta nc e or su bs tanc e s we re po sse sse d w iththe purp os e of selling or ot herw ise dispensing.” Wit h respe ct to this inferenc e, our r eview is to consider whether “under the fa cts of the c ase, the re is no rational wa y t h e t ri er [of fa ct] could make the c onnection-8-

permitted by

the infer ence ” beyond a re asonable doubt. County Court of Ulster C ounty v. Allen, 442 U.S. 140, 157, 99 S. Ct. 2213, 2225 (1979). In other wor ds, even thoug h circ umstantial evidence is neede d for one element, the sta ndard f or evide nce suf

ficienc y rema ins the same.

I n inte rp reting sec tion 39-17-419, this court has de termined that many fac ts and

c ir c ums tanc e s e xist f

ro m w hic h a

jur y may pr op e rl y dr a w a n inf e re nc e that a n a c c us e d in te nd e d to sell or deliver

controlled substanc es. See State v. Br own, 915 S.W .2d 3, 8 (Tenn. Crim. App. 1995) (manne r of pa ckag ing of drug s and abse nce of

drug para

pherna lia may

support infere nce of possession with intent to s ell, ra t h er t han possession for pe rsonal use) ; State v. Matthews, 805 S.W .2d 776, 782 (Tenn. Crim. App. 1990) (finding it proper f or a jury to c onsider “the amount and

va lue of a c on tr oll e d s ub sta

nc e

. . . to inf

e r a n int ent io n to distr ibute ” ); se e a lso State v. Ha ro ld Way ne Shaw, No. 01C01-9312- CR-00439, Davids o n C o unty (Tenn. Crim. App. Oc t. 24, 1996) (abse nce of

drug para

pherna lia and no proof at trial of pe rsonal use suppor ted infer ence and conviction). This cour

t has also held that it is proper f or an e x perie nced of

fice r to testify as to the dif fe re nt t ra its of dr ug us e rs a nd de a le rs . Se e Sta te v. Willi a m A ub re y Tr ott e r, No . 0 1C0 1- 97 01 -C R00019, Davidson County

(Tenn. Crim. App. F eb. 24, 1998).

I n the light most favor able to the state , the evidenc e showe d t h at I nvestig ators Ke lly and Thompson saw the de fenda nt standing by

the roa d and lea

ning towa rd a ve hicle in front of

a re puted drug house. Ba sed on the circumstances and their ex perie nces, the two office rs deter mined that the defe ndan t was likely

eng ag ed in a dr

ug transac tion. Further

more, whe n the offic ers a rrived, the defe ndant threw to the g round a ba g which conta ined a one -g ram roc k of coc aine. The defe ndant also had in his possession 3.2 g rams of powder coca ine and $249 in cash. Thompson estimated that the total value of t h e co ca i n e the de fenda nt possessed was $500 to $550. The defe ndant did not
p o s s e s s an y dr

u g p a r a p h e r n a li a

. T h e d e f

e n d a n t w a s in th e c o mp a n y o f o th e r s a ls o f o u nd to have drug s in their possession. I nside the house around which the g roup was g ather ed, office rs found a microwave oven a

nd littl e else , which indicate d to them that the location wa s used to conver t powder

coca ine to rock co ca i n e b ase. The defe ndant denied posse ssion of the bagof roc k coca ine and testified that the powder coca ine in his pocket was a $100 purcha se he ma de that day for pe rsonal use. Howe ver, Thompson testified that the powder coca ine was likely

worth $300 to $350.

We conclude that this evidence is suff icient to support the def

endant’ s conviction, as there

wa s su ff ic ie nt c ir c ums tanti a l e vid e nc e fr om w hic h th e jur y c ou ld i nf

e r t he de fendan t’ s in te nt t o deliver the drug s. I n addition to the r elatively larg e amount and va lue of the dr ug s in his possession, other e vidence
, including that the defendant was seen in behavior ty pical of a drug transac tion and
was g ather ed with other dr ug s users or sellers in a

n are a known f

or drugsales, could lea d a rational jur or to i nf e r b e y on d a

re a so na ble do ub t that the de fe nd a nt po sse sse d the c oc a ine wi th the int e nt t o deliver it.

We note that, in his sufficiency argument, the def

endant c ontends that much of the te stimony that the state e licited from Investig ator Kelly was not admissible. I n particula r, he argues that: (1) the state a sked for

an irre levant opinion from Investig ator Ke lly reg ardingwhy

Kelly focuse d on the de fe nd ant w he n h e a rr ive d to e xec ute the se a rc h w a rr a nt a t th e ho us e on Ce da

r Str e e t; ( 2) the state-9-

improperly

asked Kelly to g ive an expert opinion about whether c ocaine deale rs ty pically have dr ug pa ra ph e rn a lia in t he ir po sse ssi on ; (3) Ke lly imp ro pe rl y re fe rr e d to Tay lor ’s ho us e a s a “ dr

ugho us e ;” (4) the state solicited irre levant testimony from Kelly reg arding his law enfor ceme nt prefe renc es; (5) Ke lly ’s te sti mony

that he kn e w the de fe nd a nt f ro m hi s e xpe ri e nc e s a s an o ff ic e r w a s “ imp e rm iss ibl e inn ue nd o” of the de fe nd a nt’ s pr ior ba d a c ts; a nd (6 ) the state us e d the de fe nd a nt’ s si len ce ag a ins t him by having Kelly

testify that the def

endant did not make a

ny statements to him at the time of the

arr est. Howe ver, a s the defe ndant ac knowledg es, conte mporane ous objections to this evidence w ere not made, nor w ere these issues included in his m otion for a new tria l. As such, the def endant ha s waived a ny consideration of these issues on appea l. See T.R.A.P. 3(e) ( stating that issues reg arding the admissibilit y

of evide nce a

re w aived if the y

wer e not raised in the motion for a new trial); T.R.A.P. 36(a) ( stating that relief is not available to a par ty “who f ailed to take w hateve r ac tion was

rea sonably available to pr event or nullify the harmful eff ect of the err or”) ; see a lso St ate v. Alva rado, 961 S.W .2d 136, 153 (Tenn. Crim. App. 1996) (“ Ordinar ily , issues raised f or the fir st tim e on appe al

are waived.” ).

II. M OTI ON TO SU P P RE SS

Th e de fe nd a nt c on te nd s th a t th e tr ia l c ourt e rr e d in no t supp re ssi nge vid e nc e wh ic h h e c la ims

wa s se ize d a s th e re su lt o f a n unc on sti tut ion a l “ sto p, arr e st, se a rc h a nd se izur e .” I n hi s mo ti on to suppress, the de fenda

nt argued that he w as a “ transient visitor” on the proper ty sear ched on Cedar Street whe n the police a

rrived to e x ecute the sea

rch w arr ant and that, ther efor e, his detent i on was illega l under State v. Curtis, 964 S.W .2d 604 (Tenn. Crim. App. 1997)

. Af t er hearingtestimony fr o m I n v es t i gat o r T h o mp s o n , t h e t ri al co u rt d en i edt h e m o t i o n , fi n d i n g:

[T]he de fe nd a nt w a s n ot a tr a ns ie nt v isi tor . A t rans ient vis ito r i s de fi ne d a s a

pe rs on wh o a rr ive s a t the pr e mis e s be ing se a rc he d w hil e the sea rch is in prog ress.

And the Court finds that doesn’t f it th e fa ct pattern of

the testimony that I ’ve he ard he re toda y , which wa s that the defe ndant

was at the are a of 113 Ceda r Street, the office r obser ved what he

c on sid e re d to be a

dr ugtr a ns a c tio n whic h g a ve probabl e c a us e to investigate. The of

fice r testified that he persona lly observe d the defe ndant discar d a bag . That bag c ould be consider ed aba ndoned
proper ty . And when he rec overe d the bag
, it contained what appe are d
to b e a n i l l e g a l s u

b s t a n c e

. T h e d e f

e n d a n tw a s p l a c e d

u n d e r a rr e st,

a nd mor e ill e g a l su

bs tanc e wa s fo un d o n h is p e rs on inc ide nt t o a

rr e st. This Court finds none of that should be suppre ssed.

The de fenda

nt contends on appe al that the trial court err ed in finding that the defendant wa s at the

s cene when of

fice rs ar rived, a nd thus not a transient visitor, and that the off icer s observe d the defe ndant eng ag ed in cr iminal activity when they

arr ived. The state contends that the trial cour t’s-10-

finding s were not in error , that the def endant wa s not a transient visitor, and that the detention of the defe ndant was justified be cause office rs observe d the def endant e ng ag ed in a dr

ug transac tion.

A trial cour

t’s fac tual finding s on a motion to suppress are conclusive on appea l unless the

ev i d ence preponde rate s ag ainst them. State v. Odom, 928 S.W .2d 18, 23 (Tenn. 1996) ; State v. J ones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Que stions about the “cr edibility of the wi tn e s s e s , th e w e ig h t a n d v a lu e o f th e e v id e n c e , a n d r e s o luti o n o f c o n f li c ts in th e evide nce a re matters entr

usted to the trial judge as t he trier of fact.” Odom, 928 S.W .2d at 23. The a pplication of the lawto the fac ts as deter mined by the t rial court is a question of law w hich we r eview de novo on appea l. State v. Year g an, 958 S.W.2d 626, 629 (Tenn. 1997).

Th e F ourt

h A me ndme nt t o th e Un ite d St a te s Co ns tit uti on pr ote c ts a g a ins t unr eas on a ble

sear ches a nd seizures, and “ article 1, section 7 [of the Tenne ssee Constit ution] is ide ntical in intent and purpose with the Four th Amendment.” S t at e v

. Do wney , 945 S.W .2d 102, 106 (Tenn. 1997) (quoting Sneed v. State, 221 Te nn. 6, 423 S.W .2d 857, 860 (1968))

. Un d er these provisions, a

war rantless sea

rch or seizure i s presumed unrea sonable, and evidenc e dis cover ed as a result of such

a sea rch or seizure should be suppressed unl ess t he search or seizure was conducte d pursuant to one of the na rrowly define d exceptions to the warr ant re quirement. Ye arg an, 958 S.W.2d at 629.

I n the prese nt c ase, the offic ers ha d a wa rra nt to searc h the pre mises of the prope rty owned by Rickey Taylor on Cedar

Street, under

probab l e cause that c ocaine was be ing store d, packa g ed, sold, and/or distributed there . The de fenda nt’s arr est, and the seizure of coca ine and money found

on his pe rs on , r e su lte d w he n th e of fi c e rs a rr ive d at T a y lor ’s ho us e to exec ute the se a rc h w a rr a nt. The de fenda

nt argues that the off

icer s did not have the rig ht to detain and sea rch him bec ause he was

mere ly a tra nsient visitor to t he pre mises. I n Curtis, this court stated that office rs executing a sea rch

war rant may not detain and sear ch a transient visitor to the searc hed pre mises merely beca use of the visitor’s presenc e on the pr emises. 964 S.W.2d at 612. The court def ined a “ transient visitor” as

a per son who (a) arr ives at the pre mises being searched w hile the

sear ch is in prog ress, (b) does not r eside inside the dwe lling or ha ve

a proper ty interest in the dwe lling, and ( c) is not named in the se arc h

war rant a s a party

to be sea rche d under c olor of the se arc h war rant.

I d. T h e t r i a l c o u rt f

o u n d t h a t t h e d e f

e n d a n t w a s n o t a t r a n s i e n t v i s i t o r

. T h e t r i a l c o ur t app a re ntl y

acc redited the testimony of I nvestig ator Thompson that the defe ndant stepped onto the lawn of the premises befor e the office rs exit ed their vehicle and beg an the sear ch. The rec ord does not
p re p o n d er at e a gai n s tt h e t ri al co u rt ’s fa ct u al fi n d i n g.

Howeve r, re g ardle ss of whethe r the de fenda nt was a tra

nsient visitor, his detention was jus tif ie d, a s it wa s b a se d o n mo re tha

n h is m e re pr e se nc e a t th e pla c e to b e se a rc he d. At a min imum, an off icer ’s sei z u re of a citizen require s the offic er to have “a rea sonable suspicion, supported by
sp e c if ic and a rt ic ula

ble fa c ts, that a c ri min a l of fe ns e ha s be e n or is a

bo ut t o b e c omm itt e d. ” State v. Moore, 775 S.W.2d 372, 377 (Tenn. Crim. App. 1989) (citing Terr y v. Ohio, 392 U.S. 1, 21-22,-11-

88 S. C t

. 1 8 6 8
, 1 8 7 9

- 8 0 ( 1 9 6 8 ) )

. I n d e t e r m i n i n g w h e t h e r a n o f

f i c e r ’ s r e a s o n a

b l e s u s p ic ion is supported by specific and articula ble fac ts, “ a court should c onsider the tota l i t y o f t he circ umstances–the e ntire picture .” Moore
, 775 S.W .2d at 377 (c itations omi tted). An off icer may make a war rantless a rre st when the off

icer has proba b l e ca u se to believe that the ar restee has committed a fe lony . T.C.A. § 40-7-103( a)( 2). Probable cau s e t o ar re s t exi sts if the fac ts and circ umstances within an of fice r’s knowle dg e ar e sufficient to war rant a prudent person in believing that the ar restee has commi tted an offense. Be ck v. Ohio, 379 U.S. 89, 91, 85 S. Ct . 223, 225, 13 L . Ed. 2d 142 (1964); State v. Melson, 638 S.W.2d 342, 350-51 (Tenn. 1982)

.

I nt h i s ca s e, o ff

i ce rs ap p ro ac h ed a ho u s e at wh i ch t h ey h adp ro b ab l e c au s e t o b el i ev e d ru gs

wer e sold. They

saw the de fenda

nt, whom they knew to have pre viously sold drug s, standing outside the ho us e , tal kin g to pe op le in a ve hic le in a m a nn e r t hat su g g e ste d h e may

have be e n in vo lve d in

a dr ugtr ans a c tio n. Th is i nf or ma tio n w a rr a nte d, in t

he le a st, a

de te nti on

ba sed o n r e a so na

ble suspicion of drug activity . See Curtis, 964 S.W .2d at 614 (holding that office rs had r easona ble and articula b l e fa cts to detain def endant who a

rrived at place be ing se arc hed for drug s based on pr ior information linking de fend ant to drug involvement). Howe ver, be fore I nvestig ator Ke lly rea ched the def endant, I nvestig ator Thompson obser ved the de fenda

nt throw a ba g toward the base of a tre e, and Thompson instruc ted Kelly to a rre st the defe ndant. Take n toge ther, these fact s p ro v ided probable cause to believe that the defendant was involved in a drugtransac tion and, thus, the office rs had proba

ble ca use to arr est the def

endant. As suc h, they we re p ermit ted to sear ch his person i n c i d e n tt o t h e a r

r e s t

. S e e U n i t e d

S t a t e s v

. R o b i n s o n , 4 1 4 U

. S

. 2 1 8
, 2 3 5
, 9 4 S

. C t

. 4 6 7
, 4 7 7
, 3 8 L. Ed. 2d 427 (1973). Thus, the defe ndant was not entitled to suppression of the powder coc aine a nd

mon e y re c ov e re d f

ro m hi s p oc ke ts. Th e tr ia l court did no t er r in de nying the de fe nd a nt’ s mo tio n to suppress.

CO NC LU SION

B a se d o n th e fo re g oin g a nd the re c or d a s a

wh ole
, we a ff

ir m th e jud g me nt o f t

he tr ia l c ourt

.

___________________________________ J OSEPH M. TI PTON, PRES I DI NG JUDGE