1



### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d on Br ie fs D ec em be r 6, 200 5

STA TE OF TEN NES SEE v. DE SHA WN T UR NER

Appeal f romthe Circ uit Court for Hardin County No. 8367 C. Cr eed Mc Ginley, Judge

No. W2005-01054-C CA-R 3-CD - F iled Dece m ber 21, 2005

The De fenda nt, Deshaw n Turner , was c onvicted of one count of possession of .5 g rams or more of

coca ine a sc hedu l e I I co n t ro lled substance, w ith the intent to manufacture , deliver or sell, and the trial court sentenc ed him to six teen y ear s in prison. O n appea l, the Def endant c ontends that the trial
court e rre d when it re fused to g rant his motion to sever his trial from the trial of his co-def endant a nd that th e e vid e nc e is i ns uf fi c ie nt to s us ta in h is c on vic tio n. F ind ing that th e re e xists no re ve rs ibl e

e rr or , w e a ff

ir m th e jud g me nt o f the tr ia l c ou rt

.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Ci r c uit

Co ur t A ffirm e d

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and A L AN E. G L EN N , J J ., joined.

L loy d R. Tatum, Hender son, Tennesse e, for the Appellant, De shawn Turner.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Jane L . B e e be , A ssi stan t At torne y Ge ne ra l; Robert “Gus” Radford, D istrict At t o rn ey Gene ral; John W . Overton, Assistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION I. F acts

This case arises f

rom a stop and subsequent sear ch of a vehic le in which the De fenda nt was ri din g on Ma

rc h 1 4, 20 04 , a ndin w hic h th e po lic e fo un d c oc a ine . T he De fe nd a nt w a s c ha rg e d w ith one count of

possession of a schedule I I drug with the intent to manufac ture, sell, or de liver the dr ug s. Pr ior to tr ia l, the De fe nd a nt fi le d a mot ion to s e ve r h is t

ri a l f ro m th e tr ia l of

his c o- de fe nd a nt, Kristy D. L ewis, who wa s drivin g t h e ca r wh en it was stopped by the police. In his moti on, he

asserted that he wa s entitled to have his ca se hea rd individually and he expected tha t the defe nse of bo th d e fe nd a nts c ou ld b e mutua lly e xclu siv e . F urthe r, he sa id tha t a joi nt tr ial wou ld re su lt i n2

insurmo u n t able a nd unfair pr ejudice. T he trial c ourt denied this motion. Subs equently , the Def endant r enew ed his motion to s ev er a nd asserted that he ha d learned of his co- defe ndant’s
statements ex onerating the Def endant and wished t o call her to testify , which he c ould not do in a j o i n t t r i a l

. T h e c o

- d e f

e n d a n t ’ s t r i a l c o u n s e l i n f

o r m e d t h e t r i a l c o u r tt h a th i s c l i e n ti n t e n d e d t o t e s t i f y, and she w ould not invoke her F ifth Amendment rig hts. The trial court denied the De fenda nt’s

m o t i o n w i t h t h e u n d e r s t a n d i n g t h a tt h e m o t i o n c o u l d b e r e v i s i t e d i f t h e c o

- d e f

e n d a n td i d n o tt e s t i f

y.

At the D e f

e n d a n t ’ s t r i a l
, t h e f

o l l o w i n g e v i d e n c e w a s p r e s e n t e d : K e i t h A m o s , a d e pu ty sheriff
, t es t i fied that on Mar ch 19, 2004, he w as working drug interdiction when he noticed a ta n 1999 Chevrolet Cavalier that did not have a proper ly operating brea k light. He , there fore , activate d his blue lights to stop the vehicle. O ffice r Amos testified that, as the vehicle st ar ted to exit to the rig ht on the median, he noticed the passeng er’ s door open, and, onc e the c ar w as complete ly stopped, th e p a s s e n g e r c l o s e d t h e d o o r

. H e s a i d t h a t t h e d o o r w a s o p e n f o r ap p r o xi m a t e lyte n to tw e nty

se c on ds . T he of

fi c e r sa id tha t ano the r of

fi c e r, Of fi c e r Cha rl e s White , ca me to a ssi st h im w ith thi s traff ic stop. Offic er Amos testified t hat he then approache d the driver’s side door, a nd he noticed
two people in the car , a fema le driver, L ewis, and a male passeng er, the Def endant. The officer informed L ewis why he stopped her car

. She said that she knew that she had a brake light out, and the offic er sa id that she seeme d very nervous, which arouse d his suspicions. The officer said that he as k e d L e w is to s te p o u t o f th e c ar a n d to c o me b a c k

a n d ta lk to h im

. T h e D e f

e n d a n t r e ma in ed in the car at this tim e.

Offic er A mos testified that he wa s conce rned that there was possiblya domestic situation or dispute that w a s ma

k in g L e w is n e r v o u s

. Wh e n s h e c a me b a c k to ta lk to h im
, h e to ld h e r th a t she
appea red ne rvous and a sked her if there was something that she needed to t ell him. L ewis said “no,” and the of fice r aske d her if she had anything illeg al in her c ar. L ewis ag ain said “no,” and conse nted
to a sea rch of her car

. Offic er Amos testified that he patted down L ewis and f ound $250 in cash a nd then he plac ed her

in the back of

his patrol car

. The officer went to t he De fenda nt and told him that L ewis g ave him permission to sear ch the car

. He patted the Def endant down f

or off icer safe ty and found $5,349 in his rig ht f ront pocket. The office r place d the Def endant in the back o f O fficer Whit e’s pa trol car

.

Of fi c e r A mos te sti fi e d th a t he a ndOf fi c e r White be g a n sea

rc hin g the c ar, a ndOf

fi c e r Wh ite found a substanc e that appeared to be c ocaine , in both powder a nd rock f orm, in a cle ar ba g ly ing b et we en t h e d ri v er ’s s i d e d o o r a n d t h e d ri v er ’s s e a t

. T h e o f fi ce r d es cr i b ed i tas “q u i t e al ar ge

am o u n t ” o f coca ine. The of fice r estimated the stre et value of the powder

coca ine to be approximately $1,700, and the street value of the rock coca ine to be $1,200. Of fice r Amos re turned to his patrol c ar and asked L ewis if she kne w that there was c ocaine in her c ar, a nd she denie d that she did. The of

fi ce r ar rested L ewis and the Def endant. Af

ter a rre sting the D efe ndant, the off icer obtained and e x ecute d a sear ch war rant for the D efe ndant’s house. In the Def endant’ s house, Off

icer Amos found $3,795 under neath the D efe ndant’s mattre ss.

On cross-e x amination by

L ewis’ c ounsel, the off

icer said that dispatch had told him that they
g ot an anonymous call say ing tha t a black ma n riding in a tan ca r with a white f

emale w as ca

rry ing3

a lar g e quantity of drug s. The office r noted that L ewis’ vehicle fit this description befor e he notice d that her br ake lig ht was not proper ly working

. Offic er A mos said that L ewis said that she did not have any thing ill eg al i n her car, and s he consented t o the ca r being sear ched. H e said that, a fter he found the drug s, he aske d both L ewis and the Def endant if the y

knew that ther e we re dr

ug s in the

car , and they

both d en i ed k n o wi n g about the drug s. The off icer said that L ewis later

g ave a statement to police in which she stated t hat t he drugs belonge d to the Def endant. She a lso told pol ice that, afte r the off

icer stopped her c ar, the Def

endant threw the drug s at her a nd told her to put them with her other

property . She said that she told the Defenda nt “no” a nd let the drug s fall betwe en the driver’ s door and the driver’s se at. The of fice r said that the police never sear ched L ewis’ home.

On cr oss-examination bythe Def endant’ s counsel, Of

fice r Amos said that the drug s were fo u n d i n L ew i s ’ ca r o n t h e d ri v er ’s s i d e o f t h e ca r. T h e o ff i ce r r ei t er at ed t h at h e d i d n o tfi n d d ru gs on the Def

endant’ s person or during the subsequent sear ch of the Def endant’ s home. He sa id that there wer e no finge rprints on the bag that contained the drug s, and he sa id that it was possible that
t h e m o n e y f

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

e n d a n tc o u l d h a v e b e e n o b t a i n e d l e g a l l y.

Offic er White testified that he assisted Offic er Amos in this traff ic stop on Marc h 14, 2004. He sa id tha t he a lso no tic e d th e pa sse ng e r’ s sid e do or op e n a ndsh ut p ri or

to the ve hic le c omi ng to a complete stop. He said that he saw that there wer e two people in the car, a w hite fema le who wa s driving and a bla ck male w ho was in the pa ssen ger ’s s eat. Office r White said that, after the ca r sto pp e d, Of

fi c e r A mos tol d L e wi s w hy he ha d sto pp e d he r, a nd he a sk e d he r to c ome a nd ta lk t o h im. After they talked, L ewis g ave the office rs conse n t t o s ea rch her vehic le. He sa id that he g ot the Def endant out of the car , patted him down, and found a larg e amount of m oney . The off icer said that he found the drug s during the sea rch of the vehicle

.

On cr oss-examination byL ewis’ c ounsel, the off icer said that he be came suspicious of the
passeng er of

the ca r whe n the passeng er’ s side door to the car opened w hile it was being stopped. On cr oss-examination bythe Def endant’ s counsel, the of

fice r said that if something had bee n tossed out of the passeng er’ s side door while it wa s open he would have seen it be ing thr own. He r eiterated
t h at t h e De fe n d an t d i d n o t h av e an y d ru gs o n h i mwh en h e w as s ea rc h ed
, an d t h er e w er e n o d ru gs in the g love box or on the passeng er’ s side floorboar d.

Erica Katherine, an a g ent with the Tenne ssee Bur eau of Investig ation (“TB I ”), te stified that she tested the substance found by the office rs in this case

. She said that she dete rmined that it was 12.9 g rams of c ocaine base, or cra ck coc aine, a nd 17.5 g rams of powder coca ine. The ag ent said that
t h e a v e r a g e o r s t a n d ar d a m o u n t o f c r a c k c o c a i n e t h a t s h e n o r m a l l y s e e s i n t h e c r i m e l ab o r a tor yis betwee n .5 g rams and 1.5 g rams. She said that the averag e amount of powder c ocaine is betwee n 1.0 and 2.0 g rams.

Krist y L e w is te s ti f

ie d th a t, o n M ar c h 1 4
, 2 0 0 4
, s h e w a s w o rk in g in Se lm e r when the Def endant c alled her

and said that he neede d a ride . She said that she did not know the De fenda nt that well, but he was her husband’s friend so she ag ree d to give him a ride. She said that she thought that she wa s g oing to take the Def endant a nd drop him off with a f riend, but t hen she le arne d that4

sh e wa s g oin g to h a ve to b ri ng him ba c k to o. L ewi s sai d th at she p ic ke d th e De fe nd a nt u p a t hi s friend’ s house at ar ound 3:30 p.m., and she wa s driving a 1999 C hevrole t Cavalier. She sa id that when the D efe ndant g ot into the car, he did not have anything with him. L ewi s t es t i fi ed that the Def endant talke d to the friend that he was supposed t o meet on the phone, and he told her that they

we re g oin g to m e e t a t a

sto re . Wh e n th e y

arrive d, the De fe nd a nt’ s f ri e ndwa s n ot the re

. L e wi s sa id sh e we nt thr ou g h a ne arb y dr ive -thr ou g h to g e t so me thi ng to e a t a ndwe nt b a c k to the sto re . Sh e sa id that the Def

endant g ot o u t o f t h e ca

r, and she stay ed in the ca r bec ause she was trying to c all her hu sb a ndon he r c e ll ph on e

. L e wi s sa id that the De fe nd a nt g ot b a c k in the c ar a ndsa id, “ Al l r ig ht, I ’m rea dy .” L ewis neve r saw the Def endant talk to any one bec ause he r ca r wa s pointed in the other direc tion.

L ewis said that the offic ers’ testimonyabout the tra ffic stop wa s acc urate . She said that when the offic er in it iate d th e tr a f f ic s to p th e D e f

e n d a n t o p e n e d h is d o o r , a n d s h e s a id
, “ Wh a t are y ou doing: We have n’t done a ny thing.” L ewis testified that the Def endant shut his door, a nd, as Off icer Amos was coming toward the car , the Def endant tossed a

bag at her and said, “ Put thi s in y our s***.” She said that she told the Def endant “ no,” and she panicke d. She said that she wa s terrifie d, and whe n the offic er a sked her if he c ould searc h her car she asked him “ what if the passeng er ha d

so me thi ng .” L e wi s sa id tha t sh e ha d ne ve r e ve n ha d a sp e e din g tic ke t, a nd sh e wa s te rrif ie d. L e wi s said that, afte r she wa s arr ested a nd while she wa s still in jail, the Defe ndant’s ac quaintance s called her a nd offe red he r money to “take the char g e.”

L ewis said that, the da y

she g ot out of jail, she took a drug test to pr ove that she had not used

a ny dr ug s. She sa id tha t th e te st c a me ba c k c le a n e xce pt f or pr e sc ri pti on me di cat io n. L e wi s admitted that she had problems wit h drug s in the past, but she never sol d drug s. L ewis said that the Def endant’ s friends we re c alling her a ll the time and telling he r to “take the cha rg e.” She sa id that she told them that she would say that the drug s wer e hers, but she said that she only told them that to stop them from calling her. She sa id that the De fe n d an t and his wife insisted that she pr epar e something in writing that said that she w as g oing to plead g uiltyand exonera te the De fenda nt. She

s a idth a t th e y

w e r e c a ll in g h e r

e v e r y d a y s o s h e g a v e s u c h a

s tate me n t a n d h a d h e r

mo th e r n o ta r iz e the statement. She a lso made a vide o rec ording the Monday befor e trial a nd, in the rec ording , she

rea d the statement. L ewis denied that the statements that she ma de in the videotape wer e true , and she reiter ated that the drug s wer e not he rs. She said that she had no misdem ea n o r o r f elony convictions on her r ecor d.

On cross-e x amination by the State, L ewis said that she did not immediately tell the office r that the Def

endant thre w drug s at her be cause she wa s sca re d

. L ew i s s aid that she g ave two statements to th e p o li c e th a t w e r e a c c u r a te , a n d in th o s e s tate me n ts s h e to ldth e m th a t s h e d idn ot know that the De fenda nt had drugs unti l he threw them at her. She said that she m ade a n additional statement and g ave it to the Def endant. She said that she did not think that the statement could be used in court, a nd she only made it a f

ew da y s befor e trial to pac ify the Def endant. L ewis said that the De fe nd a nt as ke d he r to mak e thi s sta te me nt, a nd sh e wa s als o ask e d by the De fe nd a nt’ s f ri e nd s, wh o s he de sc ri be d a s b e ing “ no t so nic e abo ut it. ” Th e state me nt w a s r e a d in to e vid e nc e a s f oll ow s:5

I , Kristy L ewis, being of sound mind and body
, not under the influe nce of drug s or threa ts, do hereby

make oa th as to the drug s being foun d i n m yvehicle on Ma rch 19th, 2004, said drug s belong ing to me, a nd I do here by take f ull responsibilit y

for said drug s. Said Co-defenda nt, Deshaw n Turner , was not aw are of the prese nce of
t h e d ru g s a n d s h o u l d b e r e l e a s e d o f a n y r e s p o n s i b i l i t y.
This statement was sig ned De ce m ber 3, 2004. L ewis said that she put in the a ffidavit what the De fe nd a nt t oldhe r t o, a ndthe state me nt w a s n ot t ru e . L e wi s sa id tha t th e De fe nd a nt t oldhe r i t

w o u l d b e b e t t e r

i f s h e m a d e a

v i d e o t ap e i n w h i c h s h e r e a d t h e s t a t e m e n t , s o s h e d i d t h a tt w o d a ys befor e trial a t the Def

endant’ s friend’ s house. L ewis said that she wa s called by multipl e people that she knew dealt drug s and told to take the c harg e. She said that she re ceive d phone ca lls in j ail telling her tha t she “was dead.” L ewis said that she did not tell the police about the thre ats, but she did keep he r p ho ne bil ls a ndvo ic e ma ils

.

On cr oss-examination bythe Def endant’ s attorney , L ewis said that she knew the Def endant for a pproxi mately

one y ear , and she de nied having an af fair w ith him. S he said that she an d her hu sb a ndha ve be e n s e pa

rate d in the la st y e ar, bu t it ha d n oth ing to d o w ith the De fe nd a nt. L e wi s sa id that she wrote and sig ned the a ffidavit. She said that she is in the re al estate business, and she ha d some experience with le g al documents. L ewis testified that she sat in front of a video c amer a and

rea d this statement. She said that she was “hounded” since the day that she wa s arr ested a nd so she lied on the videotape. L ewis said that she has be en in a r ehabilitation prog ram for over one wee k, and she w as not using dr

ug s. She admitted that the drug s were found on her side of the c ar.

The De fenda nt’s wife, Wendy Turner
, testified that, in Ma rch of 2004, she g ave the police
consent to sea

rch he r house. She sa id that they found no drug s but found some money under the mattress. Turne r testified that the money was partly her income tax refund and money that she save d from wor king a s a wa itress. She said t hat s he did not put the m oney in the bank bec ause she did not

c la im a ll o f h e r tip s. Tu rn e r te sti fi e d tha t, in Marc h of 200 4, sh e a nd he r h us ba ndow ne d f ou r c ars , tw o o f w hic h the y so ld fo r a litt le ov e r $5, 00 0. She sa id that she wa s pre se nt at bo th sa le s, a ndbo th

car s wer e sold f

or cash. Turner said that her husband was car ry ing the cash w ith him because the y

wer e g oing to buy

another car on Marc h 14, 2004, but her g randmother died that morning

.

Turner said that the first time that she saw L ewis’ a ffidavit wa s when L ewis broug ht it to her at her house. She said that L ewis also delivere d a videotape to he r the Monday befor e trial. Tur ner said that, when she broug ht ove r the video tape, she hear d L ewis tell the Def endant that she wa nted to confe ss and that this was the onlyway that she knew to confe ss. She said that she has ne ver se en her husba nd threa ten L ewis.

On cr oss-examination bythe State, Tur n er said L ewis’ husba nd called he r at a round 5:00 p.m. and told her that the D efe ndant and Lewi s h ad been a rre sted. She said that the police the n

arrived at ar ound 8:30 p.m. to search he r house. She said that an office r aske d her if the re w as a g un under the mattress, and she told him t hat there used to be, but they no longe r owne d a gu n. The office r looked unde r the mattre ss and found the mone y . Turner identified two piece s of pape r that6

wer e handw ritten notes from the people who pur chase d car s from the Turners on F ebrua ry 24, 2004,

a ndMa rc h 1 6, 20 04 , b ut s he sa id tha t sh e didno t ha ve tit le s.

On cr oss-exa

mi n ati o nb y

L e w is ’ c o u n sel, Turne r said that, the morning afte r her g randmother die d, the De fe nd a nt w a s a t w or k at Cla y ton

. She sa id the De fe nd a nt ne ve r tol d he r if he c a lle d L e wi s for a ride that da y . She ag ree d that she is not awar e of a lot that her husband sa y s and does.

On re direc t e x amination, Turner testified that her

2003 tax return showed that she r ece ived

a re fund of $3,026.05, a nd she said that she c ashed this che ck and br oug ht the money home.

Ba sed upon this evidence , the jury found both L ewis and the Def endant g uiltyof possession of a sc hedule I I

controlled substanc e with the intent to manufa cture , sell, or deliver

.

II. Ana lys is

On app e a l, the De fe nd a nt c on te nd s th a t t he tr ia l c ou rt e rr e d w he n it

de nie d h is m oti on to

se ve r his tr ia l fr om the tr ia l of his c o- de fe nd a nt a nd that the e vid e nc e is ins uf fi c ie nt to su st ain his

c on vic tio ns

. A. Mot ion to Sever

The De fenda nt contends that the trial c ourt err ed whe n it refuse d to gr ant his motion t o sever

. He a sserts that the re cord supports a finding that he wa s “cle arly prejudice d” bec ause the re w ere two defe ndants involved in this case, a nd t h ey b o t h claimed that they wer e innoce nt and blamed the other. He asserts that c o-def endant L ewis testified that the Def endant’ s friends and partners coe rce d her into admitting tha t the coca ine was he rs, and this evidenc e would not have been a dmissibl e at the Def endant’ s trial if he we re trie d alone. The State counter s that the Def endant f iled his moti on to se v e r b e c a u s e h e s o u g h t to c o mp e l c o

- d e f e n d a n t L e w is to te s ti f

y

. Pr io r to tria l, when the Def endant lear ned that co-de fenda nt L ewis wa s, in fact, g oing to testify , he aba ndoned his motion. There fore , the State asserts, he ca nnot succe ssfully complain t hat the trial c ourt’s fa ilure to sever the trials clea rly prejudice d him.

A trial court shall gr ant a pretria l motion to se ver if it is “de emed a ppropriate to promote a fa ir de te rm inatio n o f the g uil t or inn oc e nc e of

on e or mor e de fe ndant s. ” Ten n. R. C ri m. P

. 14(c) (2)( i). Dec isions concerning c onsolidation and sever ance of off enses pur suant to Rules of Criminal Procedure 8(b), 13, an d 14(b)( 1) will be re viewed f or an a buse of discr etion. State v. Denton, 149 S.W .3d 1, 12 (Tenn. 2004); State v. Toliver, 117 S.W.3d 216, 231 (Tenn. 2003). An abuse of discretion in this context implies that the trial court applied a n incorre ct leg al standar d or

r e a c h e d a d e c i s i o n a g a i n s tl o g i c o r r e a s o n i n g w h i c h c a u s e d a n i n j u s t i c e t o t h e c o m p l a i n i n g p ar t y. Spicer v. State, 12 S.W.3d 438, 443 (Tenn. 2000); State v. Shirley
, 6 S.W .3d 243, 247 (Tenn. 1999)

. Th is C ou rt

ha s h e ld tha t “ wh e re a mot ion fo r se ve ra nc e ha s be e n de nie d, the te st t o b e app lie d b y thi s [ C ] o u rt in determining whether the trial court abused its discretion is whethe r the de fenda nt was ‘cle arly prejudice d’ in his defe nse as a result of be ing tried with his c [o-] defe ndant.” State v. Price, 46 S.W .3d 785, 803 (Tenn. Crim. App. 2000) (quoting State v. Burton, 751 S.W .2d 440, 447 (Tenn.7

Crim. App. 1988).

I n Br uton v. United States, 391 U.S.123 ( 1968), the United States Supre me court held that wher e two def

endant’ s are jointly tried, admission of one defe ndant’s pre- trial statement implicating the co- defe ndant violates t he co-defe ndant’s si x th amendment right to conf ront and c ross-examine witnesses ag ainst him. I d. at 136-37. I n the ca se under sub m i s s i o n t h e confe ssing c o-def endant testified, and the De fenda nt had the rig ht to cross-examine her . There fore , no confr ontation problem exis ts, a n d Br

uton has no applica tion to thi s case . See McCra cken v. State, 548 S.W.2d 340, 343 (Tenn. Crim. App. 1976); St ate v. James D. Roper, No. 01C01-9311- CR-00414, 1994 W L 548705, at *2 (Te nn. Crim. App., at Nashville, Oc t. 6, 1994), perm. app. de nied (Tenn. F eb. 6, 1995).

Further, we ag ree with the State that the Def endant cannot now succ essfully complain that the tr ia l c ou rt

imp ro pe rl y

de nie d th e mot ion to s e ve r w he n h e didno t pu rs ue thi s mo tio n p rior to
tr ia l. C o- de fe nd a nt L e wi s d e nie d to the po lic e that the dr ug s w e re he rs , b ut, thr e e da y s b e fo re tr ia l, she wrote an af

fidavit and made a videotape d statement, which she g ave to the D efe ndant’s wife
, stating tha t the drug s were hers a nd not the Def endant’ s. Ba sed upon this affida vit and videotaped statement, the De fenda nt sought a motion to s ever

his trial from co-defe ndant L ewis’ trial. I n that motion the Defe ndant stated that he s o u gh t a seve ranc e bec ause he “re cently . . . learned of c odefe ndant’s unequivoc al statement that [he] is not g uilty of t he crimes char g ed in this indi ctment and that [co-defe ndant L ewis] was ac ting a lone in possessing the illega l drug s . . . .” F urther, he said that he e xpe c te d c o- de fe nd a nt L e wi s to e xer c ise he r F if th Am e nd me nt ri g ht no t to te sti fy
, wh ic h w ou ld deprive him of his right to cr oss-examine her. Prior to trial, the trial court addr essed this motion, and

c o

- d e f e n d a n tL e w i s ’ att o rn e y

t o l d t h e c o u r tt h a th e a n t i c i p a t e d t h a tc o

- d e f e n d a n tL e w i s w o u l d t e s t i f y. Th e tr ia l c ou rt

sa id, “ I f s he do e s, that’ s g oin g to t a ke c are of ou r p ro ble ms. I f s he do e sn ’t
, I ne e d to

sev e r

. ” A t th a t p o in t, th e D e f e n d a n t d id n o t o b

je c t, s e e mi n g ly b e c a u s e h e a g r e e d th at, if code fe nd a nt L e wi s te sti fi e d, he wo uld ha ve the ri g ht to c ro ss- e xami ne he r, wh ic h is wh a t he so ug ht. Un de r the se c ir c ums ta nc e s, we c on c lud e that the t ri a l c ou rt didno t a bu se its dis c re tio n w he n it de nie d th e De fe nd a nt’ s mo tio n to sev e r be c a us e the De fe nd a nt ha s not p ro ve n th a t he wa s “ c le arl y prejudice d” by

the trial court ruling. H e is not entitled to relief on this issue.

B. Su ff iciency of the Evid ence

Ne xt, th e De fe nd a nt c on te nd s th a t th e e vid e nc e pr e se nte d a t tria l is ins uf fi c ie nt t o s us ta in h is conviction for posse ssion of .5 g rams or more of coc aine with the intent to manufa cture , deliver or sell. Specifica lly , he asse rts that his conviction cannot be ri gh t fu l l y b ased solely on the

uncorr oborate d testimony of an acc omplice. The State counter s that the Def endant wa s convicted basedu p o n e v id e n c e in a d d it io n to th e te s ti mo n y o f a n a c c o mp li c e

. Wh e n a n a c c u s e d c h a ll e ng es the suffic iency

of the e vidence
, an appellate court’s standard of revie w is w hether
, afte r considering the evidenc e in the lig ht most favorable to the prosec ution, any rational trier of fact could have found the essential e lements of t he crime bey ond a reasonable doubt. Tenn. R. App. P . 13(e) ; J ackson v. Vi rg ini a , 4 43 U. S. 3 07 , 3 24 (1979 ); S tat e v. Du nc a n, 69 8 S. W.2 d 6 3, 67 (T e nn . 1 98 5) . T his ru le applies to finding s of g uilt based upon direc t evidence
, ci rcumstantial evide nce, or a combination of both direc t and circ umstantial evidence . State v. Penderg rass, 13 S.W.3d 389, 392-93 (Tenn.8

C ri m

. Ap p

. 1 9 9 9 ). I n d et er m i n i n g t h e s u ff i ci en cy o f t h e ev i d en ce , t h i s C o u rt s h o u l d n o tre -w ei gh

or re -eva luate the evidenc e. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor

ma y thi s Cou rt su bs titute its inf e re nc e s fo r tho se dr a wn by the tr ie r of fa c t fr om the e vid e nc e . St a te

v. B ug g s, 99 5 S. W.2 d 102 , 105 (T e nn . 199 9)

. Qu e sti on s con c e rn ing the c re dib ili ty of the wi tne sse s, the weig ht and value of the evidenc e, as well as all fac tual issues raised by the evidenc e are resolved by the trier of

fac t. State v. Evans, 108 S.W .3d 231, 236 (Tenn. 2003) . This Court must aff ord the State of Tenne ssee the strong est leg itimate vie w of the e vidence contained in the r ecor d, as we ll as all rea sonable inferenc es which may be drawn from the evidenc e. State v. Eva ns, 838 S.W .2d 185, 191 (Tenn. 1992) . Be cause a ver d i ct o f guilt ag ainst a def endant r emoves the pr esumption of innocenc e and r aises a presumption of g uilt, the convicted criminal defenda nt bear s the burden of showing that the evidenc e wa s leg ally insufficient to sustain a g uiltyverdic t. I d.

I n order to convict the De fenda nt of possession with intent to sell or d el i v er a contr olled

su bs ta nc e , the Sta te wa s re qu ir e d to pr ov e be y on d a re a so na ble do ub t th a t th e De fe nd a nt kno wi ng ly possessed “a

controlled substanc e with intent to manufacture , deliver, or sell such controlled substance.” Tenn. Code Ann. 39- 17-417(a )(4) (2003). Possession may be actual or c onstructive. A per son who knowing ly has di rec t phy sical control over an object at a given tim e is then in ac tual possession of it. See 7 Tenn. Practice
, Tenn. Pattern J ury I nst.-Criminal 31.04 (2002). Te nnessee Code Annotated section 39-17-417( a), prohibiting t he possession of a controlled subst ance , “is not restric ted to proof of

actua l possession, and ev i d ence of e ither construc tive possession or other control over

the substance is sufficient to establish this element.” State v. Ross, 49 S.W.3d 833, 845 (T e nn . 2 00 1) . Co ns truc tiv e po sse ssi on of a dr ug is ba se d upo n the po we r a ndint e nti on to e xer c ise d o m i n i o n a n d c o n t r o l o v e r t h e d ru g , e i t h e r d i r e c t l y o r t h r o u g h o t h e r s

. I d

. “ I n o the r w or ds
, ‘construc tive possession is the abilityto reduc e an obje ct to a ctual possession.’” I d. at 846 (quoting State v. Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996) (citations omitted)).

Acc ording to Tennesse e Code Annota ted Section 39-17

- 419 (2003), “ I t may be infe rre d from the amount of a

co n t ro l led substance or substance s possessed by an off ender , along with other

re le va nt f a c ts s ur ro un din g the arr e st, that the c on tr oll e d sub sta nc e or su bs ta nc e s w e re po sse sse d w ith the pu rp os e of se lli ng or oth e rw ise dis pe ns ing .” Th us , the jury c a n in fe r a n in te nt t o s e ll o r d isp e ns e drug s based upon the a mount of drug s possessed by t h e d ef en d an t and the a

bsence of drug
p ar ap h er n al i a

. S e e S t a t e v

. C h ea ri s , 9 9 5 S

. W

. 2 d 6 4 1
, 6 4 5 (T en n

. C ri m

. Ap p

. 1 9 9 9 ) ( s u s t ai n i n g a

c on vic tio n fo r po sse ssi on wi th int e nt to se ll a ft e r the de fe nd a nt ha d be e n d isc ov e re d w ith 1. 7 g ra ms of cr ack c ocaine on his pe rson); State v. Matthews, 805 S.W .2d 776, 782 (Tenn. Crim. App. 1990) (f ind ing that te sti mon y

abo ut the a mou nt a ndstr e e t va lue of 30 .5 g ra ms o f c oc a ine wa s a dmi ssi ble to inf er an intention to distribute); State v. Charles B enson, No. M2003-02127- CCA-R3-CD, 2004 WL 2266801, at *3 (Tenn. Crim. App., at Na shville, Oct. 8, 2004), perm. app. de nied (Tenn. May 23, 2005) (de termining that the absenc e of drug para pherna lia, and testimony of value and amount of 3.3 g rams of c ocaine provided suff icient evidenc e for j u ry t o draw an infe renc e of de fenda nt’s intent to sell a nd deliver a controlled substance) ; State v. Wil liam F . Cartwrig ht, No. M2003-00483- CCA-R3-CD, 2004 WL 1056064, at *4 (Tenn. Crim. App., at Nashville, May 10, 2004)

, no Tenn R. App. P. 11 application fil ed (holding that the testimony about the lar g e volume and stre et value of 25.5 g rams of coca ine, t he ty pical dosage s for addicts, and the a bsence of drug para

pherna lia was9

sufficie nt to support an infere nce a nd conviction of intent to deliver)

.

I nitially , we note that the Def endant se eming ly

does n o t ar gu e that the evidence was insufficient to prove the eleme nts of possession with intent to m anufa cture , sell, or deliver , but he
arg ues t h at h e wa s convicted ba sed upon the unc orrobor ated testimony of an a ccomplice . As our Supreme Court has state d, “In Tennessee , a convic tion may not be base d solely

upon the

uncorr oborate d testimonyof a n ac compl ice.” State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing State v. Big bee, 885 S.W

. 2 d 797, 803 (Tenn. 1994) ). F urthermor e, ac complices c annot

corr oborate eac h o t her. State v. G ree n, 915 S.W .2d 827, 831 (Tenn. Crim. App. 1995) . “An

acc omplice is one who knowing ly
, v o l u n tarily , and with common intent unites with the principal offe nder in the c ommissi on of a c rime.” State v. A llen
, 9 7 6 S .W.2d 661, 666 (Tenn. Crim. App. 19 97 ). Th e g e ne ra l te st i s w he the r the a c c omp lic e wo uld be ind ic te d f or the of fe ns e c ha rg e d a g a ins t the def endant. I d. (citations omitted).

Our Supreme Court has set forth the qua ntum of proof nece s s ar y to establish sufficient

c or ro bo ratio n a s f

oll ow s:

[T] here must be some fac t testified to, entirely independe n t o f t h e accomplice’ s testimony , which, take n by itself, leads to the infe renc e, n o t o n l y t hat a c rime has been c ommitt ed, but also that the defe ndant is implicate d in it; and this independe nt

corr oborative te stimonymust also include some fac t establishing the de fenda nt’s identity

. This c orrobor ative evidenc e may be direc t or entirely circ umstan t i al
, and it n e e d n ot b e a de qu a te , in a ndof its e lf, to su pp ort a c on vic tio n; i t is su ff ic ie nt t o meet the r equire ments of the rule if it fairly and leg itimately

tends to connec t the defe ndant wi t h t he commission of the crime char g ed. It is not necessary that the

corr oboration extend to every part of the acc omplice’s evide nce.
Shaw, 37 S.W.3d at 903 (quoting B igbe e, 885 S.W.2d at 803). I n other wor ds, the corr ob o ration

mus t in c lud e so me fa c t e sta bli sh ing the ide nti ty

of the de fe nd a nt a s a

c ri min a l a c tor . It is g e ne ra lly for the jury t o d etermine whether sufficie nt corrobor ation exis ts. Shaw, 37 S.W .3d at 903. Howeve r, as this Court ha s previously pointed out, “ Evidence which mer ely casts a suspicion on the

acc used . . . is inadequa te to corr oborate an accomplice’ s testimony .” State v. Griff is, 964 S.W .2d 577, 589 (Tenn. Crim. App. 1997)

.

I n the ca se under

submissi on, we c onclude that there was suff icient cor robora tion of the code fe nd a nt L e wi s’ te sti mon y

. Th e arr e sti ng of fi c e r re c e ive d inf

or ma tio n tha t a bla c k mal e ri din g in

a ta n c ar wi th a wh ite wo ma n wa s c arry ing a larg e a mou nt of dr ug s. He sa w a ve hic le ma tc hin g thi s description and noticed that it was missing a brake light. The office r, t here fore
, initiated a stop and saw the passeng er’ s side door open for approximately twenty seconds befor e the vehicle c ame to a stop. The off

icer stopped and a

pproac hed the c ar, a nd he saw that the Def endant wa s riding in the
passeng er’ s seat of the car , which co- defe ndant L ewis wa s driving. T he off icernoticed that code fe nd a nt L e wi s se e me d n e rv ou s, a nd , fe ari ng a do me sti c dis pu te , h e a sk e d L e wi s to c on ve rs e wi th10

him while the Def

endant r emained in the c ar. L ewis conse nted to a sea rch of her c ar. When the office rs re moved the De fenda nt from the car to c onduct the sear ch, they patted him down a nd found $5,349 on his person. They found 12.9 g rams of c ocaine base, the street va lue of whic h is $1,200

a nd17 .5 g ra ms of po wd e r c oc a ine
, the str e e t va lue of wh ic h is $1 ,7 00

. Th e of fi c e rs arr e ste d b oth the Def endant a nd co-de fenda nt L ewis. A sea rch of the Def endant’ s home produce d $3,795, which was found underne ath a mattress i n his bedroom. Co-defe ndant L ewis testified that the dr ug s were the De fe nd a nt’ s a nd no t he rs

. Th e jury didno t a c c re dit

thi s te sti mon y

a ndfo un d c o- de fe nd a nt L e wi s g uiltyof possession of .5 g rams or more of a c ontrolled substa n ce with the intent to manufac ture, sell, or deliver

it. Si milarly , they found the Def endant g uiltyof possession of .5 g rams or more of

a c on tr oll e d s ub sta nc e wi th the int e nt t o ma nu fa c tur e, sel l, or de liv e r i t. C o- de fe nd a nt L e wi s’ testimony was sufficie ntly corr oborate d by the other evidenc e prese nted by the Stat e, an d we conclude that the evidenc e is sufficie nt to sustain the Defenda nt’s conviction. The De fenda nt is not entitled to relief on this issue.

III. Conclusi on

I n acc ordanc e with the for eg oing a uthorities and re asoning , we a ffirm the judgment of the
tr ia l c ou rt

.

____________________________________ ROBERT W. WEDEMEYER, J UDGE