### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

arch 12, 2002
STATE OF TENNESSEE v. JOEL WAYNE JACKSON A ND JOEL KEITH RUSSELL
Direct Appeal from the Circuit Court for Hardin County No. 7966 C. Creed McGinley, Judge

Nos. W2001-00587-CCA-R3-CD and W2001-00570-CCA-R3-CD

Filed July 26, 2002

The appellants, Joel W

ayne Jackson and

Joel Keith Russell, w

ere each convi

cte d in th e Hardin County Circuit Court of one count of possessing

more than .5 grams

of cocaine with in

tent to sell. They were each sentenced to eightyears incarceration in the Tennessee Department of Correction withthe sentences to be served on supervised probation af t er serving ninety

days in confineme

nt. On appeal, Jackson challenges the correctness of his sentence and Russell contests the sufficiency of the evidence supporting his conviction. Upon review of the record and the parties’ briefs, we affirm the judgments of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgmen

ts of the Circuit C

ourt are Affirm

ed.

N ORMA M C G EE O GLE , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and A LAN E. G LENN , J., joined. Chadwick G. Hunt, Savannah, Tennessee, for the appellant, Joel Wayne Jackson.
Mike Mosier, Jack

son, Tennessee,

for the appellan

t, Joel Keith Russell

. Paul G. Summers, Attorney Gener al and Re porter; Mark A. Fu

lks, Assistant Attor

ney General; Robert “Gus” Radford, District Attorney General; and John W. Over ton, Jr., Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION I. Factual Backgroun

d On March 31, 2000, members of the 24 th Judicial District Drug Task Force, specifically

Officers Tim Cunningham and Mark And erson, executed a search warrant on a residence1 The officers we re driving both u nmarked vehicles and state troop er vehicles.
-2- and an adjacent outbuilding owned by Jackson. The officershad previously bought crack cocaine from Jackson, using marked ten-dollar bills to make the purchase. The marked bills were a specific target of the search.

As the officers approached the residence, they saw several indiv

iduals standing near the outbuilding. Upon seeing the officers driving toward the residence, Jackson ran. 1 Off icer Cunningham chased Jackson with Officer Anderson in close pursuit. Jac kson fled into the outbuilding, which b

uilding contained a

“game room” with

a coin-operated pool table and several video game machines. Officer Cunningham followed Jackson upstairs into the game room where he encountered Russell and Russell’s wife, Nancy. Jackson continued through the game room and down a set of stairs where he was finally apprehended by a state trooper.

Pursuant to a search of Ja ckson, Officer Cunningham discovered $323, including two of the marked ten-dollar bills which had been used to make the previous drug purchase from Jackson. After

Officer Cunningham placed Jackson into a police vehicle, the officer was informed by Officer Anderson that Russell was in p ossess ion of a large amount of money. Officer Cunningham returned to the ga me room a

nd, aft er examining $1,080 discovered in Russell’s possession, he found one of the marked ten-dollar bills. Officer Anderson also discovered a Tylenol bottle containing crack cocaine lying just outside a pocket on topof the nearby pool table. Officer Cunningham testified that the officers als o discovered a “crack pipe” in the downstairs portion of the garage. He further expl ained that, upon hi

s initial entry into th

e game room,

Russell and Nancy
were shooting pool and were the only people in the room besides Jackson. M oreov er, Officer Cunningham asserted that Russell’s presence at the residence was a surpr ise as Russell was not involved in the earlier cont rolled dr ug purchase and he had no ownership interest in the property.

At trial, Officer A

nderson testified

that, when he ente

red th e game roo m behind Officer Cunningham, Russel l and Nan cy did not appear to be playing pool. However, Officer Anderson remarked that they both appeared to be “very nervous.” He further observe d that the amount of crack cocaine discovered in the Tylenol bottle could be smok ed within a few min utes. He explained that the bottle was found on the s ide of the pool table opposite where Russell was standing. Agent Brian Eaton, a forensic scientist with the Tennessee Bureau of Investigation (TBI) crime laborator

y, testified that th

e substance foun

d in the Tylenol bottl

e was . 5 gra ms of cocaine base, otherwise known as crack cocaine. He explained that the margin of error regarding the weight of the substance discovered was .02 grams; in other words, the weight of the substance could be .48 grams or .52 grams of crack cocaine.-3- Explaining why he ran from the police, Jackson testified at trial that “I just took off running because Ididn’t know who it was, and when the vehicles was coming down the road, it was already guns hanging out the window.” He asserted that the game room was open to the public and “[a]ll day tha t day , everybody had been in there.” He explained that the downstairs area of the outbuilding was the living quarters of his brother-in-law Tommy Byrd and Byrd also had access to the game room. Jackson contended that he had no knowledge of or information about the crack pipe that was discovered.

He also denied giv

ing the Tylenol bottl

e to Russell. Jackson further denied that he smoked crack

cocaine. He claimed that the money discovered in his pocket was “money I work for.” He maint ained that h e was self-emplo

yed in a lawn car

e business. He als

o claimed that his possession of two marked ten-dollar bills was “just a coincidence.” He acknowledged that Russell was an infrequent visitor to the premises, visiting approximately five times a year.

Russell testified at

trial that he and his wife, Nancy, went to Jackson’s resi

dence in order to purchase crack cocaine for their personal use. Upon arriving at the residence, the Russells boughta $50 “rock” o f crac k cocaine from the appellant and smoked it. Russell maintained that Jackson took the crack c

ocaine from a Ty

lenol bottle

which contained three

additional rocks of crack cocaine. Following the sale, Jackson put the bot tle back into

his pants pocket. Ru

ssell stated that,
on the afternoon of the search, he saw Jackson in the game room at two different times. He explainedthat the last time Ja ckson came in the g

ame room, Jackson

told the Russells that the police
were on their way. Russell stated that Jackson removed a large amount of money from his billf

old and gave it to Russell, c

oncluding that if

Russell did not have “anything on [him],” the police could nottake the money from him. Russell also mai ntained that h e did not know who put the Tylenol bottle on the pool table, but acknowledged that he and his wife had shot one game of pool on the table during their 35 to

45 minute stay at the residence. He indicated that the Tylenol bottle appeared to be the same one he had seen in Jackson’s possession earlier in the day.

Russell’s wife, Nancy, testified at trial that she and her husband were on the premises to purchase crack cocaine from Jackson. She stated that they were a t the location for 40 or 45 minutes prior to the arrival of the police. E arlier that day, she saw Jackson in the kitchen of his residence in possession of the Tylenol bottle

which contained crack cocaine. The Russells bought $50 dollars’ worth of the crack cocaine and smoked it

while they were there. Later, Jackson gave them another $50 rock fr om the Tylenol bottle, but d id not make them pay

for it. The Russells smoked this rock as well. Nancy maintained that she and her husband were in the game room when Jackson ran into the room shouting, “[t]he feds are her e.” She asserte d that Jackson gav

e Russell
a large amount

of money and stated that the police could not take the money from Russell. Nancy allegedthat she saw the Ty lenol bottle in Jack

son’s hand in the ga

me room, butshe did not see what he didwith the bottle. She indicated that neither of the Russells owned a Tylenol bottle like the one the police discovered. She stated that she and her husband ne v er touched the Tylenol bottle and noted that other people had been in the game room that day.2 Nancy Russell was also char ged on the named offens e; however, t he trial court ente

red a judgment of acquittal in h er favor.
-4-

A jury in the Hardin C

ounty Circuit Court c

onvicted both

Jackson and Russe

ll of one count of possession of .5

grams of cocaine

with intent to sell. 2 The trial c ourt sentenced the appellants

to eight years incarceration, suspending the sentence after service of nine ty days in confinement. On appeal, Jack son contests his se

ntence t o confinement and Russell contests the
va l idity of his conviction. We will begin by analyzing the sufficiency of the evidence supporting Russell’s conviction. II. Analysis

This court grants considerable weight to the verdict of a jury in a criminal trial when analyzing an appellant’s c

hallenge to

the sufficiency

of the evidence supporting his conviction. See State v. Tuggle

, 639 S.W.2d 913, 914 (T enn. 1982). This

is because “[t]he weight and credibility of the witnesses’ te

stimony are

matters entruste

d exclusively

to the jury as the triers of fact.” State
v. Manning , 90 9 S. W.2 d 11 , 13 (Ten n. C rim . Ap p. 1 995 ). A ccor din gly, a jury conviction essentially removes the presumption of the appellant’s innocence and replaces it w

ith a presumption of

guilt. Statev. Suttles , 30 S.W.3d 252, 260 (Tenn.), cert. denied , 531 U.S. 967, 121 S. C t. 401 (20 00). Moreover, as the pre vailing p arty in the tr ial court the State

is entitled to the str

ongest legitima

te view of the evidence and all reasonable inferences which may be drawn therefrom. State v. Cottrell , 868 S.W.2d 673, 675 (Tenn. Crim. App. 19 9 2). Therefore, Russell bears the burden of demonstrating to this court why th e evide nce will not support the jury’s findings. Id. In order to meet this burden, Russel

l must establish that n

o reasonable tri

er of fact could have found the essential elemen

ts of the offense

in question bey

ond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

To obtain Russell’s co

nviction, the State

was required to p

rove th at Ru ssell knowingly

possessed th

e cocaine i n the Tylenol bottle with the intent to sell that cocaine. Tenn. Code Ann. § 39-17-417(a)(4) (1997). Possession of a drug can be either actual or con structive. State v. Transou , 928 S.W.2d 949, 955 (Tenn. Crim. App. 1996). As this court explained in State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987) (citations omitted):

Before a person can be f

ound to constructiv

ely possess a drug, it must appear that the person has “the power and intention at a given time to exercise dominion and control over. . . [the drugs] either directly or through others.” In other words, “construc

tive posse s sion is the ability to reduce an obje

ct to actual possession.” The mere presence of a p erson in an area where drugs are discovered is not, alone , sufficient to support a finding that the pe rson possessed the

drugs. Likewise, mere association with a person who does in

fact control the drugs or prope rty whe re the drugs are discovered is insu

fficient to support a finding th

at the person posse

ssed the drugs. Furthermore, “if the amount involved is point five (.5) grams or more of any substance containing cocaine,” the offense is a c lass B felony. Tenn. Code Ann. § 39-17-417(c). “The amount of cocaine-5-

sold by the defendant

is an essential ele

ment of the Class B felony of selling cocaine [or possessing cocaine with the intent to sell].” State v. Walker , 29 S.W.3d 885, 893 (Tenn. Crim. App. 1999).

The police found Russell in the same room where the Tylenol bottle containing crack cocaine was discovered. Russell admitted that, earlier that day, he had been playing pool on the pool table where the bottle was found. Moreover, Officer Cunningham testified that, when he entered the game room, Russell was standing near the pool table. Upon searchingRussell, the police discovered
a large amount of money, including a ten-dollar bill which had been marked in an earl ier drug purchase from Jackson. In sum, the evidence again

st Russell consisted of his presence in the area where the crack cocai ne was found, the large amount of money discovered on his person, and the presenceof a marked bill among the money found on Russell. Again, we recognize that Russell’s “mere presence in

[Jackson’s game room] is not, standing alone, sufficient to support a conviction for[this] of

fense[].” Transou , 928 S.W.2d at 956. N or may Russell’s “m

ere association

” with Jackson b e sufficient to support his conviction. Id. However, there was more evidence aga ins t Russell than his mere pres ence at the l ocation. He was at the location with full knowledge of the existence of the crack

cocaine in the Tylenol bottle. The police discovered a large amount of money
on hi s per son, including a marked ten-dollar bill which had been used in a recent controlled drug b uy. Russe ll and his wife testified that the money was in Russell’s possession only because of Jackson’s belief that “[t]hey can’t take it off of you [if] you haven’t

got anything on you.” The jury heard this testimony and, o

bviously, discounte

d it. We will not here r

eevaluate the c

redibility of the witnesses. Although not overwhelming, we conclude that after examining the evidence in the light most favorable to the State the evidence is sufficient to support Russell’s conviction for possessing the cocaine with

the intent to sell. As a tangential iss

ue, Russell conten

ds that [t]he expert testimony established that the amount of the crack cocaine was either

.480 grams or .520 g

rams. The Defen

dant submits that this fact, which is

entirely within the province of an expert, is per
se reas onable doubt, insofar as the quantity of the substance i s concerned, and further illust rates that the ju

ry was a rbitrary in this
case. However, Russell fails to cite any authority

in support of this contention, arguably waiving the issue. Additionally, Russell failed to object to the testimony at trial, making the issue one for the jury. See Walker , 29 S.W.3d at 893; State v. Leon Goins , No. W1999-00157-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 355, at *6 (Jac kson, M ay 2, 2000); cf. State v. Danny Munson , No. W2001-00157- CCA-R9-CD, 2001 Tenn. Crim. Ap p. LEXIS 968, at *9 (Jackso n, December 31,

2001); State v. Mark T. Scisney , No. 01C01-9605-CC-00209, 1997 Tenn. Crim. App. LEXIS 1040, at *20 (Nashville, October 16, 19 97). The jury determined the evidence established that the amount of crack cocaine in the bottle was .5 grams or more. See Goins , No. W1999-00157-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 355, at **11-12; State v. Randy Joy , No. 02C01-9705-CC-00183, 1997 Tenn. Crim. App. LEXIS 1178, at *4 (Jackson, November 25, 1997). B. Sentencing-6- On appeal, Jackson contends that the “the trial court er red insentencing [him] to ninety(90) days confinement rather than suspending any period of incarceration.” This court reviews challenges to the manner of service of a sentence de novo. Tenn. Code Ann. § 40-35-401(d) (1997). Moreover, beca

use the record reflects that the trial court properly considered the sentencing principles and the facts and circumstances surrounding the offense, we will accord the trial court’s findings a presump tion of correctness. Id. ; State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991). Regardless,

Jackson bears the burdenof demonstrating to this court why the sentence imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments.

This court will consider the following factors in conducting its de novo review: (1) the evidence, if any, received at the trial and the sentenc ing hearing; (2) the presentence report; (3) the principles of sentencing and argum ents as to s entencing alternatives; (4) the nature and characteristics of the criminal conduct involved; (5) evidence and information offered by the parties
on enhancement and

mitigating factors; (6) any statement by Jackson in his own behalf; and (7) the potential for rehabilitation or treatment. Tenn. Code Ann. § 40-35-102 and -103 (1997), -210 (Supp. 2001); see also Ashby , 823 S.W.2d at 168.

In making its s

entencing dete

rmination, the tria

l court observed t

hat: there are innuendos of substantial drug involvement on Mr. Jackson, butI’m going to g

ive him the be nefit of the doubt i n this case, as I will both Defendants in this case.

I’m basically considering the fact that they have no prior

record. . .

. [Accordingly,] I’m going t o sentence both of

these Defendants to the minimum of eight y

ears.

. . . . They have been convicted of a Class B felony, which means they do notenjoy that presump

tion of eligibility fo

r alternativ

e se ntencing .

. . . Howev er, there is no substantial record a s to each of these Defendants.

. . . Mr

. Jackson indicates he hasn’t used [drugs], I think, in seven ye ars, b ut, nevertheless , there’s his invol vement in this parti

cular case as far as the dealing type of situation.

In considering t h is case as a whole, I do not feel that they are appropriate for total probation. . . . I think that some period of incarceration

is necessary to av oid depr eciating the ser iousness of this offense. . .

Because Jackson was convicted of a class B felony, he is not entitled to the statutory pr esum ption in favor of alter

native sentencin

g. Tenn. Code Ann. §

40-35-102(6). H

owever, becau

se he received an eight-year sentence, the minimum within the range f

or a Class B felony, he may stil l-7-

be considered for alternative sentencing. Tenn. Code Ann. § 40-35-303(a) (1997). However, “[h]ad the Defendant not received the minimum sentence in the range [for a B felony], [he] would not have
even been eligible

for probation.” State v. Kathleen Malley , No. W2000-01064-CCA-R3-CD, 2001 Tenn. Crim. App. LEXIS 526, at *10 (Jackson, July 16, 2001). Regardless, the trial court did grant Jackson the alternative sentence of split confinement. Jackson argues that he should have received full probation.

“The determination of whether the appellant is entitled to an alternative sentence and whe ther the appellant is entitled to full probation are different inquiries.” State v. Bo ggs , 93 2 S.W.2d 467, 477 (Tenn. Crim. App. 1996). Because Jackson seeks full proba tion, he bears the burden of establishing his suitability for full probation, regardless of whether he is entitled to a statutory presumption of alternative sentencing. Id. ; see also Tenn. Code Ann. § 4 0-35-303(b)

. Acco rdi ngly, Jackson must establis h that granting

his full p robation wil

l “‘subserve the ends of justice and the best inter

est of both the public and the [appellant].’” State v. Dykes , 803 S.W.2d 250, 259 (Tenn. Crim. App. 1990), overruled on other grounds by State v. Hooper , 29 S.W.3d 1, 9 (Tenn. 2000). This court has exp lained that [ i]n determining one’s suitability for full probation, the cou rt ma y consider the circumstances of the offense , the defendant’s potential
or lack of potenti

al for rehabilitati

on, whether full p

robation will undulydepre ciate th e seriousness of the offense, and whether a sentence other than full pro batio n would provide an effective deterrent to othe

rs likely to commit sim

ilar crimes. Boggs , 932 S.W.2d at 477. While recognizing Jackson’s limi ted criminal history, the trial court nonetheless

determined that the seriousness of the offense warra

nted a denial of f

ull probation. We conclude that the trial court did not err in denying Jackson full probation.

At the sentencing he

aring, Jackson ma

de no arguments

in favor of the gr

anting of full probation. Notably, counsel for Jackson specifically stated that

[w]ith the exception of [

so me d riving offenses], I think that Mr. Jackson certainly woul d qua lify for some type of alternative sentence, whether it’s sp lit [c onfinement], or whatever the Court sees fit, and basedon his prior record, that’s wha t we’re asking the Court to do today.

After a review of the r

ecord, we have

gleaned that, for

approximately fo

ur and a half years, Jackson was “self-employed; doing carpentry work, as well asyard work and cutting/selling wood.” Additionally, aside from the driving offenses, Jackson has no historyof c riminal convictions. However, Jackson admitted in the presentence report that he used cocaine daily during
a two-year period, but alleged that he quit using coca ine approxim

ately seven years prior to the offense. We also find it important to note that at trial bothRussell and Nancy testified that Jackson sold them cocaine on at least one occasion on the day of the offense. Moreover, Russell claimed that-8-

he had bought drugs from Jackson on more than one occasion. Regardless of his lack of pri o r criminal convictions, we nonetheless conclude, in light of the foregoing facts, that Jackson failed to meet his burden of establishing his suitability for full probation. Se e Stat e v. Adam Short , No. 03C01-9703-CC-00090, 1998 Tenn. Crim. App. LEXIS 130, at *7 (Knoxville, January 28, 1998).
III. Conclusion Based upon the forgoing, we affirm the judgments of the trial court.

___________________________________ NORMA McGEE OGLE, JUDGE