1 The spec ific question was the suf ficiency of evidence to support an accomplice’s statement that the defendant was the owner of the cocaine i n question. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE
STATE O F TENNESSEE v. TOMMY DAVIS Circuit Court for Cocke County

No. 8427

No. E2002-00511-CCA-R3-CD February 28, 2003

Judge Jerr

y L . Smith, Concurring

in Result
CONCURRING OPINION
While I co ncur with

the major ity that the evidence is sufficient to support the conviction for theft of property ove

r $1,000, I reach t hat result from a somewhat different approach tha n that taken in the principal opinion. The majority conc ludes that the defendant’s presence in and operation of a borrowed vehicle is sufficient proof to support a finding of

constructive possession of contraband contained therein. Concededly , this has been the conclusion reached by this Court in a number of its decisions. See, e .g. , State v. G onzalo Mor an Garc ia , No. M2000-01760-CCA-R3-CD, 2002 Tenn. Crim. App . LEX IS 146, at *1 11 (Tenn . Crim. App . Nashvill e, Feb. 20, 2002) ; State v. Brown , 915 S.W.2d 3, 7-8 (Tenn. Crim. App. 1995). However, having re-read the opinion of the Tenne ssee Supreme Court in State v. Shaw , 37 S.W.3d 900 (Tenn. 2001), I am convinced

that mere presence in and operation of

a vehicle containing contraband is, without other proof of a power or

intention on the part of the defendant to exercis e dominion

and contr

ol over the contra

band, insu

fficien t to establish “constructive possession.” Nevertheless, I believe that the record

of the ins t ant case provides sufficient other proof that, when coupled with the proof of the defendant’s presence in and operation of the vehicle containing contraband, establish es the co nstructiv e possess ion nece ssary in this case to sustain a theft conviction.
In Shaw our supreme court dealt with the question of whether there was sufficient evidence of the de fendant ’s guilt of pos sessi on of c ocain e with the in tent t o deli ver th e drug. 1 Shaw , 37 S.W.3d at 902 . The d efenda nt own ed and was op erati ng a vehicle in which the cocaine forming the basis of his arrest was found. Id . The Court of Criminal Appeals, relying on State v. Brown , 915 S.W.2d at 7-8, held that constructive possession of a controlled substan ce can be infe rred to the person who had control over thevehicle in which it was found. State v. Maurice Shaw , 1999 Tenn.-2-

Crim. App. LEXI S 1078, at *7-*11 (Tenn. Crim. App. at Jackson, Oct. 21, 1999). Although the Tennessee Supreme Court affirmed the decision that the evidence was sufficient to corroborate the accomplice’s testimony and the verdict itself, th e court f ound that t

his Court’ s relianc e on owne rship and control of a vehicle as establishing constructive possession was ove rly broad. Brown , 37 S.W.3d at 903 n.3. Implicit in the supreme court’s opinion, I believe, is a directive tha t mer e owner ship and/or control of a vehicle in which contraband is found cannot standing alone support an inference or constructive possession. In other words, while ownership a nd/ or control of a vehicle in which contraband

is found may be one thre ad in a web of circumstantial evidence establishing constructive possession, it is not the web itself. Turning to the fac ts of the instant case, there is proof that not only was the defendant operating a vehicl e in which recent ly s tolen pro

perty was found, he also refused to y ield to a show of authority during

a high speed chase through a r esidential area. Moreover, upon wrecking the borrowed vehicle, the defendant and his compatriot

fled on f oot and el uded ca pture at that time. This avoidance of police, as noted by the majority, indicates a ne farious purpose bey ond that of an innocent tr ip . F in al ly, the jury was entitled to find as incr edible co-defendant Coleman’s story that he bought the stolen items from an unknown man and enlisted the aid of the defenda nt to trave

l to a nearby community

in a borrowed car to sell the stolen property , but he never discussed with the defendant the presence of the prope rty in the car

nor the purpose of the trip.
When all these factors are considered tog ether, I believe tha t the re is min imally sufficient evidence to support an inference that the defendant intended to e xercise power and control over the stolen propert

y, a nd in turn, the defe

ndant’s c onviction

for thef t o v er $1,000. For that reason I concur in the judgment of the court.

____________________________________

JERRY L. SMITH, JUDGE