### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE
STATE OF TENNESSEE v. ROBIN K. DODSON
Direct Appeal from the Circuit Court for Rhea County

No. 13796 J. Curtis Smith, Judge

No. E1999-00387-CCA-R3-CD - Dec ided May 19, 2000

A Rhea County

jury convicted the appellant, Robin K. Dodson, of one (1) count of possession with the intentto sell marijuana and one (1) count of public intoxication. The trial court sentenced the appellant to concurrent terms of two (2) years for felonious possession of marijuana a nd thirty (30) days for public intoxication, suspe nded up on service of fifteen (15) days in the county jail. On appeal, the appellant contends that the trial court er red in e xcl udi ng ce rta in t est imo ny as hear say. After a review o f the re cord, we conclude that statements made by a passenge r in the appellant’s vehicle were offered

not for the truth of

the statements the

ms elves, bu t rather to explain why the appellant made inconsistent state ments regardin g his ownership of

the marijuana fo

und in his vehicle. As a result the statements are not hearsay

and thus the trial c

ourt erred in excl

uding them. Because we cannot conclude that this error was harmless, under the circumstances,

we must reverse the appellant’s conviction for possession with the intent to sell marijuana and remand for a

new trial.

T.R.A.P. 3 Appeal as of Right; Judgment of the Circuit Court

of Rhea County is

Reversed and Remanded

S MITH , J., delivered the opinion of the court, in which T IPTON , J., and W ELLES , J., joined. B. Jeffery Harmon, Jasper Tennessee, for the appellant, Robin K. Dodson.

Paul G. Summers, Attorne y General a nd R eporter, Elizabe

th B. Marney

, Assistant Attorne

y General , Nashville, Tenne ssee; J.

Michael Taylor, District Attorney Ge neral and Sherry Gouger, Assistant District Attorney, Jasper, Tennessee for appellee, State of Tennessee

. OPINION

. In the early morning hours of June 1, 1995,

the appellant, Julie

Elsea and Bill Leming were returning from

a cookout on Skull

Island when Officer Neal Nichols of the Rhea County Sheriff’s Department

stopped their vehicle. Nichols stopped the vehicle because the driver of the vehicle was attempting to cross a closed bridge. Another officer requested that Elsea, the driver of the vehicle, step out of the vehicle

while he checked her driver’s license, and Nichols stuck his head inside the1 At trial, the parties stipulated to the admission of a TBI Lab Repo rt which indicated that

the bag contained 557.8 grams of marijuana.

2 Leming was charged with public intoxication, and Elsea was charged with dr iving on a suspended license. The appellant was also charged with public intoxication.

3 The appellant does not challenge his conviction for public intoxication.


### -2- window of the vehicle and chatted with the appellant and Leming. While conversing wit

h the pass engers of the v ehicle, Nichols d

etected the odor

of fresh marijuana. Whe n he ask ed t he m en w het her t here was “any d ope” in the vehicle, the appellant responded, “yes,

there is.” The appellant then reached behind the bench seat of the truck and pulled outa bag of marijua

na. 1 The ap pellant told the officer that the marijuana belonged to him. The offi cer placed the appellant under arrest and transported the appellant and Leming to the Rhea County Jail. 2 During theride tothe jail, the appellant stated that he had never “tried anything like this” and that he had grown the marijuana to “make some money.” At trial, Julie Elsea te

stifie d tha t she and the appellant went to the Skull Island party at Leming’s behest. While they were at the party, Elsea observed L eming taking a bag

of marijuana from another man and placing it behind the seat of the truck. Soon thereafter, she, the appellant and Leming left the party and were stopped by officers fro m the Rh ea County Sheriff’s Department. Elsea testified that, although the appellant told the Officer Nichols that the ma

rijuana belong

ed to him, she never saw the appellant touch the marijuana pri orto their being stopped by the officers. The appellant testified on his own behalf at trial. He stated that he also observed Leming purchasing the marijuana fr om another party

goer and placi

ng it in the vehicle. Whe

n they left Sk

ull Island and saw the officers on the bridge, the appellant testified that he and Le ming ha d a “conversation.” The appellant stated that hethen told the officers that the marijuana was his. The appellant testified that he was “pretty well drunk” at the time. However, the appellant denied that the marijuana belonged to him. The jury found th

e appellant guil

ty of one (1)

count o f p ossession with the in tent to sell marijuana and one (1) count of public intoxication. He was sentenced to concurrent terms of two (2) years for felonious possession of marijuana and thirty (30) days for publ

ic into xication, suspendedupon service of fifteen (15) days in the county jail. From his conviction for felonious possession of marijuana, 3 the appellant now brings this appea

l.

I.

In his sole issue on appeal, the appellant claims t hat the trial cour

t erred in excludin

g certain testimonyas inadmissible hearsay. Specifically, he asserts that the court erred in refusing to allow him and Elsea to testify as to the “conversation” he had withLeming prior to being stopped by the police. The appellant contends that he claimed ownership of the marijuana because Leming asked him to claim the marijuana. He alleges that he attempted to introduce Leming’s sta

tements to prove the effect on him

as the hearer. Thus, he argues that Leming’s stateme nts were nonhearsay and

the tri al c our t er red i n ex clu din g the tes tim ony.

### -3-

During Julie Elsea’s direct testimony, defense c ouns el asked Elsea about the conversation betweenthe appellant and Leming after they realized that they would be stopped by the police. The state objected to Leming’s statements as hearsay , and the trial court

held a jury-

out hearing. De

fense counsel argued that Leming’s stat eme nts were being offered not to prove the truth of the matter asserted, but to explain why the appellant told the police officer that themarijuana belong ed to him. During an offer of pr oof, both t he appellan t and Elsea t estified t hat Leming a sked t he appellant to claim the marijuana. The appellant testified that, when they saw the patrol cars on the bridge: That’s when Bill said, . . . “There’s the law.” He said, “Oh, hell, what are we going to do w ith it ?”

. . . He said, “Robin, if you’ll take this,” he said, “I’ll pay y

our bondsman, I’ll pay bond for you. I’ll hire y

ou a lawyer and pay a

ny fines.”He said, “But

I can’t hand

le this, because this is my sixth time.”

The trial court dete

rmined that, by introducing Leming’s statements, the a ppellant was attempting to prove the truth of the matter asserted, i.e., that the marijuana belonged to Leming and not the app ell ant . Th us, the cou rt e xcl ude d th e st ate men ts a s in adm iss ibl e hea rsa y.
II. According to the Tennessee Rules of Evidence, hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, of fered to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). Hearsay evidence is gene rally inadmissible. Tenn. R. Evid. 802. However, extrajudicial statements offer ed to prove the effect on the hearer constitute nonhearsay evidence and are admissible. State v. Venable , 606 S.W.2d 298, 301 (Tenn. Crim. App. 1980); see also N. Cohen, S. Sheppeard & D. Paine, Tennessee Law of Evidence § 801.6 (3d. ed. 1995). Her e, the testimony was not offered to prove the truth of Leming ’s statements as to hi s intentions about hiring a lawyer for appellant, making the a ppellant’s bond or

Leming ’s criminal record, but to prove the effect that the statements had on the appellant as the listener. The testimony
was relevant becau

se it might have e

xplained to

the jury why

the appellant claimed ownership of the marijuana at the time of the in

cid ent, but denied ownership at trial. As a result, this testimony constitutes nonhearsay evidence an d i s admissible. Thus, we conclude that the trial court’s exclusion of Leming’s

statements was er

roneous.
III.

The state contends that, even if the trial court erred in excludingthe testimony, such error was harmlessbecause the evidence of the appellant’s guilt was overwhelming. The state insists thatthe

### -4-

evidence clearly demonstrates tha t t he appellant con

structively

possessed the mar

ijuana, and as a result, this Court should affirm the appellant’s conviction. We must disagree. Cer tai nly, the evidence demonstrates that the appellant constructively possessed the marijuana. The appellant testif ied that he knew Leming had placed a bag in the truck be hind the seats and that the bag

contained mariju

ana. It is wel

l-established tha

t “possessio

n” may be actual
or constructive. State v. Brown , 823 S.W.2d 5 76, 579 (Tenn. Crim. App. 1991). Constructive possession is “the ability to reduce an object to actual possession.” State v. Williams , 623 S.W.2d 121, 125 (Tenn. C rim. App. 1 981) (quot ing United States v. Martinez , 588 F.2d495 (5 th Cir. 1979)); see also State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). However, the appellant wa s convicted of pos session of marijua na with the intent to

sell. Other than his statements

at the time

he was arrested, there is little evidence of the appellant’s intent to sell. Without the admission of Leming’s statements which could arguably explain the appellant’s actions on the night of the incident, we cannot conclude that the jury would n evertheles s have returned a verdict of gu

ilt for posses sion with the intent to sell marijuana. Therefore, we can not conclude that this

error was harml

ess.
IV.

The trial court erre

d in excluding testi

mony rega

rding Leming ’s statements to the appellant
on the night he was arrested. Furthermore, because this Court can not conclude that this error was harmless, we reverse the

appellant’s conv

iction for possess

ion of marijuana w

ith the intent to sell and remand this ca

se for a new tria

l.