### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Brie

fs August 15, 2001
STATE OF TEN

NESSEE v. GRA

DY PAUL GATLIN Appeal from the Circuit Court for Marshall County

N O . 14186

N O . M2000-02356-CCA-R3-CD
- F ILED S EPTEMBER 25, 2001

James Cur wood Witt , Jr., J. , concurrin g and dissen ting.

I must respectfully depart from the lead opinion in this case. I c annot conclude that the misdemeanor offense of casually exchanging a controlled substance is a lesser-inclu ded offense of felony possession with the intent to sell or deliver. CompareTenn. Code Ann. § 39-17-417(a)(4) (1997) with Tenn. Code Ann. § 39-17-418(a) (1997).

Because many of our proscriptive statutes establ is h alternative modes for committing cri mes, and because the determination of lesser-included offenses involves a statutory elem ent s analysis, State v. Bur

ns 6 S.W.3d 453, 466 (Tenn. 1999), analysis of lesser-included offenses has often entailed the comparison of a specific mode of the greater offense with a specific, related mode of the lesser offense. See, e.g., State v. David Wayne Salley , No. E1999-00203-CCA-R3-CD (Tenn. Crim. App., Knoxville, Oct. 11, 2000) (comparing the bodily injury mode of r ape with similar mode of aggravated

assault); State v. Robbie James , No. M2000-00304-CCA-RM-CD, slip op. at 6 (Tenn. Crim. App., Nashville, M ar. 20, 2000) (ch

ild-victim mode of a

ggravated se

xual batt ery is lesserincluded offense of

child rape); State v. Gary J. Greer , No. 01C01-9808-CR -00337, slip

op. at 11-13 (Tenn. Crim. App., Nashville, Mar. 17, 2000), pet. for perm. app. filed (Tenn. 2000); State v. Reed , 689 S.W.2d 190, 193 (Tenn. Crim. App. 1984) ( aggravated

ass ault foun d to be lesser-included offense of aggravated rape based upon commonality of “weapon” mode).
An examination of the st

atutes defining

drug offenses

reflects that they are organized into modes of conduct.

A person commits a

fe lony who eith

er manufacture

s, delivers or sel

ls a controlledsubstance; alter natively, he

who possesses the c

ontroll ed s ubstance with inte nt to manufacture, deliver or sell al so commits a felony. Tenn. Code Ann. § 39-17-417(a) (1997). Some of the modes that def

ine this offense

describe me re possessi on, althou gh others describe a transfer of the controlled substance. Likewise, the misdemeanor drug statute pro scribes posse ssion as a mode of conduct, and alternatively it proscribes “casual exchange ” – that is, conduct involving a transfer-2-

of the controlled substance. See Tenn. Code A nn. § 39-17-418(a) (establishing an offense “for a person to knowing

ly possess or

casually exchange a controlled substance) (emphasis adde d).
In the present case, each drug offense was a felony that was alleged in the indictment as possession with intent to sell. In my view, only the possession mode of the misdemeanor would be a lesser-included offense. See Burns , 6 S.W.3d at 466-67. The requirement of an exchange is not an element of the charged

felony offense of

possession. Judge Welles makes an influential argument that casual exchange would constitute a lesser-included offense of felony possession pursuant to the “(b)” prong of the Burns test, butrespectfully I remain unconvinced. I do believe that the possession mode of co mmi tti ng th e mi sde mea nor wou ld b e a l ess er-i ncl ude d of fens e of a ny mode of commi tting the felony, for the simple reason th at possession is a necessary condition of any ma nufacture, delivery or sale, but it see

ms to me that th

e casual e

xc hange mode lines up with only the transfer modes of the felony offense – that is, delivery and sale. Therefore, I conclude

that the trial judge advisedly and correctly (1) charged the jury that misdemeanor possession is included within the charged offense of possession and (2) omitted casual exchange as a lesser-included offense op ti on. I believe

the analysi

s that supports this conclusion utilizes and advances a methodology for determining lesser-included o ffense s that facilitates this task throughout the broad range of criminal offenses.

That said, I conclude that

the trial court nevertheless erred in failing to charge the jury as to the separate “casual exchange” inference set forth in Code section 39-17-419. T hat section provides,
I t ma y be inferred from the amount of a controlled substance or

substances possessed by

an offender, along

with other releva

nt facts surr oun ding the arrest, that the controlled substance or substances were posses sed with th e purpose of selling or o therwise di spensing. It may be inferred f rom circums tances indi cating a c asual exch ange amon g indiv iduals of a small amount of a controlled substance or substances that the controlledsubstance or substances so exchanged were possessed not with th e purpose of selli

ng or otherwise dispensing in violation of the provisions of § 39-17-417(a). S uch inferences shall be transmitted to the jury by the trial judge’s charge, and the jury

will consider such inferences along with the nature of the substance possessed when affixing the penalty.
Tenn. Code Ann. § 39-17-419 (1997). The second clause, or the “casualexchange” port ion, of this statute is amelior ative to th e defendant. It should hav e been charged t o the jury even t hough the “casual exchange” offense was not charge

d in the indictment.
The rationale f or giving the section 39 -17-419 cha rge despite the absence of “casual exchange” as a mode of committing the misdemeanor offense is that the inferences mandated in that-3-

section implicate issues of evidence , not statutory element s
. A charged offense of felony possession withintent to sell may be proven throug h evidence that shows a transfer or sale of the controlled substance, as was done in the present case. In that situation, the jury must be infor med of the evidentiary

effect of this evidence; it must be acquainted with the statutorily-mandated inference that proof of the defendant’s transfer of a controlled substances might not indicate a felony possession, basedupon “circumstances indicating a casual exchange among individuals

of a small amount of a controlled substance.”

In my view, this instructional issue was fairly raised by th e evidence and was “fundamental to the defense and essential to a fair trial.” See Poe v. State , 212 Tenn. 413, 420, 370 S.W.2d 488, 491 (1963) . Thus, the defend ant was entitled to

the instruction, de

spitehis failure to request it or to object to it s omission. Compare id. with Tenn. R. Crim. P. 30(a) and State v. Cravens , 764 S.W.2d 754 (Tenn. 1989).

A closer question is whether the failure to raise the issue in the defendant’s motion for new trial con

stitutes a waiver or

whether the error should be noticed as plain error. I conclude that the error has af

fected the substa

ntial rights of the defendan t and constitutes plain error. See Tenn. R. Crim. P. 52(b). In the present case, the defendant maintained that his posses sion of dru gs was to serve his persona

l drug habit

and that any transfers to other persons were incidental or ca sual and not acts of felony delivery or sa le. Significantly, t

her e was no evidence of a “buy” from someone in law enforcement. The evidence of felony possession rested upon the testimony – and credibilit y – of some of the rec

ipients of the cont

rolled substance

s or witnesses to the

transfers. Under these circumstances, it seems vital that the jury be informed of the legislatively -mandated inference about casual exchange.

Thus, I concur in the

lead opinion’s result. I would reverse the convictions premised upon possession of controlled substances and remand for a new trial.

___________________________________ James Cur wood Witt , Jr., Ju dge