1 

# FILED

August 20, 1998

Cecil W. Crowson

Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE

APRIL 1998 SESSION

STATE OF TENNESSEE, )

) No. 01-C-01-9706-CC-0 0219

Appellee, )

) Franklin County

v. )

) Honorable Bud dy D. Perry, Judge

MITCHELL D. ASHL EY, )

) (Theft of Property; Possession o f

Appellant. ) a Controlled Substance)

FOR THE APPE LLANT: FOR THE APPELLEE:2

Philip A. Condra John Knox Walkup

District Public Defender Attorney General & Repor ter

204 Bets y Pack Drive 425 Fifth Avenue, North

Jasper, TN 37347 Nashville, TN 37243

Ellen H. Pollack

Assistant Attorney Gener al

425 Fifth Avenue, North

Nashville, TN 37243

James M. Taylor

District Attorney General

265 Third Avenue, Suite 300

Dayton, TN 37321

William B. Copeland

Assistant District A

ttorney General

Franklin County Courthouse

Winchester, TN 373981 The jury acquitted the defendant of burglary charges

.

3 OPINION FILED: _________________________

____________

AFFIRMED

L. T. LAFFERTY, SPECIAL JUD GE

OPINION

The appellant, Mitchell D. Ashley (defendant), wa s convicted of theft of property, a

Class D felony, and possession of a controlled substance, a Class A misdemeanor by a jury

of his peers. 1 The trial court found the defendant a standard offender and imposed a Range

I sentence of four (4) years in the Department of Correction for the theft conviction and eleven

months and twenty-nine days in the county jail for the drug charge. The defendant was also4

fined $2,500. The trial court ordered that the two sentences run concurrently for an effect ive

sentence of four years.

The defendant presents four issues for review. He contends the evidence is insufficient as

a matter of law to support the convictions. He also contends the trial court erred (a) by denying

his motion to suppress, (b) by instructing the jury on joint and construc tive possession of drugs,

and (c) by imposing an excessive sentence. After a thorough review of the record, the briefs

submitted by the parties, and the law governing the issues pres ented for review, it is the

opinion of this court that the judgment of the trial court should be affirmed.

I. Facts

In the winter of 1994, Ricky Foster owned and operated Cumberland Valley Concrete in

Winchester. On December 12, 1994, he closed for the day as usual around 5 p.m.

When Mr. Foster returned the next morning, he discovered the back door to his business

had been pried open and most of his office equipment and supplies were missing.

Among the items stolen were telephones, a copy machine and stand, vacuum cleaners,

word processor, bank bags with $1,000 cash and gift certificates, power drills and chargers,

tools, microwave, first-aid kit, paper prod ucts (towels, napkins, plates), pencils and pens,

scratch pads, calculators, mobile radios, cleaning products, an ink stamp with the Cumberland

Valley Concrete emblem, and a Christmas poinsettia. He estimated the value of the items at

$6,000 not including the cash or gift certificates. His insurance company paid him $2,000 for

the theft.2 At the time of the the ft, Lo ra Hacker was the defendant’s girlfriend. She was tried as a codefendant. While married to the defendant’s cousin, Eric Ashley, Hacker moved in with Mitchell Ashley

and at the time of sentencing was pregnant with his child.

3 The defendant challenged Mr. Foster’s claim that he could see the v acuum cleaners through

windows next to the back porch. The porch was not visible from the area of Third Street directly abutting

the defendant’s home. Mr. Foster explained that coming from the concrete comp any Third Street

curved. Mr. Foster said the defendant’s back porch and windows were visible from the curve in the road.

While photographs of the home included in the record show the view obstruct ed by trees, the victim

pointed out that the theft occurred in the winter and the trees did not have leaves.

5 Mr. Foster said he found some smaller items

, such as pens and a sewing kit, scattered

outside the building. A die set was found about 200 ya rds from the office toward the

defendant’s house.

The defendant, Mitchell D. Ashley, lived in a house about 200 or 300 yards away from the

concrete company. He lived there with his girlfriend, Lora Hacker. 2 Ashley’s house was on the

corner of Shephard and Third Streets. The house faced Shephard, and Thir d Street ran

parallel to the side of the house. A driveway off Third Street ran behind the defendant’s home.

A small porch was located toward the rear of the house on the sid e oppos ite Third Street.

Third Street provided access to the concrete company.

While leaving the concrete company office on December 14th via Third Street, Mr. Foster

passed the defendant’s house. Through two windows near the rear porch he saw two vacuum

cleaners. 3 Through a win dow facing Third Street he saw a microwave oven resembling the

one taken fr om hi s business. His suspicions were raised because he had not seen a

microwave there before. Mr. Foster explained that it was dark outside, the windows were not

obstructed, and the lights were on inside the house making the items inside visible.4 Green testified during the motion to suppress that she noticed the items after the initial knock and

while waiting for Lora Hacker to come to the door. At trial, she testified that she noticed the items after

knocking, speaking with Lora Hacker and while waiting on the defendant to come to the door.

5 A forensic chemist from the Tennessee Bureau of Investigations testified that the material

recovered was marijuana weighing .13 grams. He said the marijuana was “just enough to test.”

6 He drove by the house a second time to verify what he thought he saw. He then called the

police station and told Investigator Betsy Green.

On the same day, Investigator Green went to the defendant’s home, knocked on the door,

and asked Lora Hacker if she could speak with the defendant. At some point while waiting on

Ms. Hacker or the defendant to come to the door, Green said she saw through the door and

the nearby windows what looked like some of the stolen items sitting on a dresser. 4 They were

partially covered with a blanket. She could also see two vacuum cleaners.

She told the defendant why she was there and asked to search his house. He gave verbal

consent and then signed a written consent form. Other officers came to as sist Green in the

search. The defendant cooperated and pointed out various items in the house that were stolen.

During the search, Green discovered a tray containing marijuana in a kitchen cabinet. 5

The defendant told Green he found t he items on the side of the road. Green told jurors,

“Initially he said that that night they’d made several trips down to the Speedway or I think it’s

also being referred to as the Amoco station. At one point him and his children went and then

at one point him and Mrs. Hacker went.” He said the items were stacked up in two locations.

He said he did not know the concrete company office had been burglarized. He told Green

there were two or three people that seemed to be moving stuff out of the office and piling it up

outside.6 Justin is the son of Lora Hacker and Eric Ashley, the defendant’s cousin.

7 Green said some of the gift certificates taken from the office were later found in a grocery

store parking lot and some at a laundromat. The money was never recovered.

Mr. Foster testified at trial he often saw the defendant and Lora Hacker walk across his

property to a convenience store. The day after the burglary the pair altered their normal route

and walked around the lot to the store.

Dennis Burns, who lived next door to the defendant, testified he saw the defendant

,

Hacker, and two children walking around the concrete company’s office building about 7 p.m.

on December 12th.

Burns acknowledged that he often saw the defendant, Hacker, and two children walking

across the property on their way to several convenience stores nearby because they did not

have a car. However, Burns sai d on this night they were walking around the building as

opposed to walking past it.

The next morning Burns found a typewriter in his yard.

Justin Ashley, the 10-year-old son of Lora Hacker, 6 said on the night of December 12th his

mother a nd the defendant told the children they were going to a convenience store

. Th e

children were told to stay inside. Justin said he went outside to pet their puppies and saw two

dark figures resembling his mother and the defendant coming out of the concrete office. He

went back inside the house.7 Defense attorneys attacked Justin’s credibility by eliciting testimony that Justin had been to talk

to Investigator Green three or four times and that it had been his father’s idea. Attorneys tried to suggest

Eric Ashley influenced his son’s testimony against Mitchell Ashley. Using information from an earlier

statement, the attorney for Lora Hacker ask ed Justin if he remembered seeing men at the concrete

company stacking things on the side of the road. Justin replied: “I think so.”

8 On cross-examination, Justin acknowledged that he initially told Investigator Green that he

followed his mother and the defendant halfway to the concrete company. 7 Justin told Green

that the defendant had what looked like a $20 bill sticking out of his pocket.

After the couple’s arrest, Justin said the defendant told him he did not need to testify in this

case.

Neither the defendant nor his co-defendant took the stand.

II. Sufficiency of the Evidence

The defendant contends the evidence is ins ufficient as a matter of law to support a

conviction of theft (over $1,000 and less than $10,000) and a conviction of marijuana

possession. As to the theft conviction, the defendant objected to the victim’s identification of

the stolen items through the use of photographs instead of the actual property. He argues

there was “insufficient identity” of the stolen items and adequate proof was lacking as to value.

The defendant also complains that a fatal variance existed bet ween the vi ctim listed in the

indictment and the proof at trial.

A. Applicable Law9 When an accused challenges the sufficiency of the convicting evidence, this court must

revie w the record to determine if the evidence adduced at trial is sufficient "to support the

finding by the trier of fact of guilt beyond a reasonable doubt." Tenn. R. App. P. 13(e). This

rule is applicable to findings of guilt based upon direct evidence, circumstantial evidence, or

a combin ation of direct and circumstantial evidence. State v. Dykes

, 803 S.W.2d 250, 2 5 3

(Tenn. Crim. App.), per

. app

. denied (Tenn. 1990).

In determinin g the suf ficiency of the convicting evidence, this court does not reweigh or

reevaluate the evidence. State v. Matthews

, 805 S.W.2d 776, 779 (T enn. Crim. App.), per

.

app

. denied (Tenn. 1990). Nor may this court substitute its inferences for those drawn by the

trier of fact from circumstanti al ev idence. Liakas v. State

, 199 Tenn. 298, 305, 286 S.W.2d

856, 859, cert

. denied

, 352 U.S. 845, 77 S.Ct. 39, 1 L.Ed.2d 49 (1956). To the contrary, this

court is required to afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record a s well as all reasonable and legitimate inferences which may be

drawn from the evidence. State v. Cabbage

, 571 S.W.2d 832, 835 (Tenn. 1978).

Questions concerning the credibility of the witnesses, the weight and value to be given the

evidence, as well as all factual issues raised by the evidence are resolved by the trier of fact,

not this court. Cabbage

, 571 S.W.2d at 835. In State v. Grace

, 493 S.W.2d 474, 476 (Tenn.

1973), our Supreme Court said: "A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the

theory of the State."

S ince a verdict of guilt removes the presumption of innocence and replace s it with a

presumption of guilt, the accused, as the appellant, has the burden in this court of illustrating

why the evidence is insufficient to support the verdicts returned by the tr ier of fact. State v.10

Tuggle

, 639 S.W.2d 913, 914 (Tenn. 1982). This court will not disturb a verdict of guilt due to

the sufficiency of the evidence unless the facts contained in the record are insufficient, as a

matter of law, for a rational trier of fact to find that the accused is guilty beyond a reasonable

doubt. Tuggle

, 639 S.W.2d at 914.

B. Possession of Marijuana

The defendant contends there was no proof that he actually or knowingly possessed the

marijuana. Furthermore, he argues there was insuff icient proof that he constructively

possessed the marijuana or that he was in a p osition to ex ercise control over “what was no

more than crumbs.” The proof failed to demonstrate that he placed the tray and marijuana in

the cabinet under the kitchen sink.

To convict the defendant of this charge, the state was required to prove the defendant

knowingly possessed marijuana. Tenn. Code Ann. § 39-17-418. Possession of a controlled

substance can be based on eithe r actual or construc tive possession. State v. Brown

, 915

S.W.2d 3, 7 (Tenn. Crim. App. 1995); State v. Brown

, 823 S.W.2d 576, 579 (Tenn. Crim. App.

1991). Construc tive possession may be proven by demonstrating that a defendant has the

power and intention to exercise dominion and control over the c ont rolled substance either

directly or through others. Brown

, 915 S.W.2d at 7; Brown

, 823 S.W.2d at 579. Construc tive

possession is the abili ty to reduce a n object to actual possession. Brown

, 915 S.W.2d at 7;

Brown

, 823 S.W.2d at 579.

Having possession of the premises where contraband is found creates an inference that

the possessor had possession of the contraband. Armstrong v. State

, 548 S.W.2d 334, 336

(Tenn. Crim. App 1976), cert

. denied (Tenn. 19 77). During the consensual search,8 An officer from the Tennessee Bureau of Investigations said the amount measured .13 grams.

He also received the butt of a hand-rolled marijuana cigarette; however, it was too small to test.

11 Investigator Green looked in cabinets under the kitchen counter. There she found a coca-cola

tray with marijuana. 8 This marijuana was found in the defendant’s home that he shared with

his family. It is irrelevant that his girlfriend was not charged or that Investigator Green did not

ask him about the marijuana when she found it. The drugs, albeit a small amount, were found

in the defendant’s home; he could reduce the drugs to possession at any time.

The defendant cites Per ry v. State

, 527 S.W.2d 749, 751 (Tenn. Crim. App. 1975) for

support of his argument. In Perry

, a panel of this court said the discovery of marijuana in a

common room and in the defendant’s bedroom in an apartment rented by the defendant was

sufficient to sustain the conviction despite testimony from other co-defendants that they were

responsible for the marijuana. This case is similar to Perry in that the defendant could reduce

the drugs to his possession at any time.

T he defendant also relies on Whited v. State

, 483 S.W.2d 594, 596 (Tenn. Cr im. App

.

1972), but his reliance is misplaced. Whited involved the presence of drugs at a business, not

a residence as in this case. Authorities found the drugs while executing a search warrant on

a business and living quarters owned by one Mr. Lame. Whited testified that he saw someone

hide the drugs. In Whited

, a panel of this court said “without further proof of the defendant’s

complicity as to the possession and control of drugs, we cannot agree with ho lding t hat this

employee [Whited] had the requisite possession of the drugs located on his empl oyer’s

premises.” Whited

, 483 S.W.2d at 596.9 The trial judge said the phrase “assorted items” in the indictment was broad enough to include

items not specifically mentioned in the indictment including the microwave, gift certificates, and other

property.

12 In this case, the marijuana was found in the defendant’s home. He could reduce the drugs

to his actual possession at any time. These facts constitute sufficient proof from which the jury

could reasonably infer that the defendant possessed the marijuana.

C. Theft

Before an accused can be convicted of theft, the state must prove beyond a reasonable

doubt (a) the accused knowingly, (b) obtained or exercised control over the property of another,

(c) with the intent to deprive the owner of the property, and (d) without the owner’s effect ive

consent. Tenn. Code Ann. § 39-14-103. In this case, the indictment alleged the defendant:

d id knowingly obtain control of and exercise control over: two (2) vacuu m

cleaners, various cleaning materials, busi n ess supplies marked “Cumberland

Valley Concrete”, bank bags, Smith Corona word processor, Cannon copier and

cabinet, telephones, Makita tools and assorted other items 9 being the personal

goods and property of: Ricky Foster d/b/a/ Cumberland Valley Concrete without

the owner’s effect ive consent and with the intent to deprive the tru e owner

thereof

. . . .

The defendant makes several arguments that address the identification of the stolen

objects. He first objects to the state’s use of photographs of the stolen items at trial rather than

using the actual items. The defendant contends that the victim was not able to show that the

items in the photographs were u ni que to Cumberland Valley Concrete. Addition ally, the

defendant argues that the state failed to prove that the items taken from the office were the

same items found in the defendant’s home.13 The defendant also contends the indictment failed to list specifically all of the items taken

such as the microwave, the gift certificate, and the poinsettia.

The defendant also argues that testimony as to the value of the items was lacking

. The

victim’s opinion testimony as to the value of the goods was given without foundation.

Finally, the defendant claims a fatal var iance existed between the victim listed in the

indictment and the proof of ownership at trial. T he v ariance coupled with the use of the

photographs and the statement of opinion as to value “combined to deprive the Appellant of

substantial rights.”

1. Variance

The defendant contends that a fatal variance existed between the vi ctim listed in the

indictment and the proof of ownership at trial. The indictment detailed “the personal goods and

property of: Ricky Foster, d/b/a/ Cumberland Valley Concrete.” At trial. Mr. Foster testified that

the property belonged to Cumberland Valley Concrete, a corporation of which Mr. Foste r i s

sole shareholder and president.

The defendant describes this as “the most glaring flaw in the State’s proof.” Yet, the

defendant acknowledges in State v. Moss

, 662 S.W.2d 590 (Tenn. 198 4), the Tennessee

Supreme Court relaxed the rule requiring proof of ownership as an element of the case.

In Moss

, the indictment described the victims as two owners operating as a partnership but

the proof at trial indicated the owners operated as a corporation. The supreme court said this

was not a mater ial variance and constituted “nothing more than harmless error.” The court

explained that the earlier common law rule requiring strict conformity between the allegations14

and the proof had been relaxed “so that substance rather than form is now determi native of

such question.” Moss

, 662 S.W.2d at 592.

This issue is without merit.

2. Use of Photographs

The defendant objects to the state’s use of photographs showing the stolen items. Instead,

the actual recovered items should have been used at trial.

On the afternoon before the trial began, the defendant served the victim with a subpoena

duces tecum ordering the victim to bring the actual items into court. The victim failed to bring

the items on the first day of trial. The defendant objected to the state’s use of photographs of

the items. The trial judge refused to require the victim to bring the items into court because of

the last minute nature of the defendant’s request.

As a general rule, there is no requirement that stolen chattels be introduced as exhibits into

evidence. Wallis v. State

, 546 S.W .2d 244, 249 (1976), cert

. denied (Tenn. 1977); State v.

Bernard Woodard

, Sevier County No. 03-C-01-9204-CR-129, 1993 WL 20123 (Tenn. Crim.

App., Knoxville, Feb. 2, 1993), per

. app

. denied (Tenn. June 7, 1993).

The issue is without merit.

3. Value

The defendant contends that the proof offered as to value of the stolen ite ms had no

foundation.15 The indictment charged the defendant with theft of goods valu ed be tween $1,000 and

$10,0 00. Mr. Foster valued the stolen items, not including the cash or gift certificates, at

$6,000. Mr. Foster told jurors that his insurance company paid him $2,000 for the loss but that

amount did not cover the stolen cash or gift certificates. Jurors were instructed to fix the

value of the stolen property at $500 or less, more th an $50 0 and less than $1,000, or more

than $1,000 and less than $10,000.

By their verdict, jurors found the latter. From all the evidence, a jury could reasonably infer

that the value of the property taken was between $1,000 and $10,000. A trier of fact may, from

all of the evidence presented at trial, det erm ine the fair market value of the stolen property.

State v. Hamm

, 611 S.W.2d 826, 828-29 (Tenn. 1981).

The issue is without merit.

4. Identification

The def endant contends that the victim was not able to show that the items in t h e

photographs were unique to Cumberland Valley Concrete.

After the stolen property was found, some of it was photographed at the defendant’s house.

Once it was taken to the police station, it was identified by Mr. Foster. Some of the property

was photographed at the station. The property was then returned to Mr. Foster.16 Using the photographs, Mr. Foster identified the stolen property as a calcu lator, two

phones, a copy machine and cabinet, microwa ve, pa per towels, vacuum cleaners, scratch

pads, napkins, paper products, poinsettia, first-aid kit, pencil sharpener, a n ink stamp for

Cumberland Valley Concrete, Makita tools, spray nozzles, and bank bags that had contained

cash and gift certificates. He said there were many small items that were not included in the

photographs, but that he identified at the station. Those included: stamps, a flashlight, cleaning

products, small tool kits, and a wall clock

.

A jury could reasonably infer that the presence of an ink stamp for Cumberl and Va lley

Concrete in the defendant’s home, along with other i tems resembling those stolen from the

concrete com pany’ s office, came from the concrete company’s office. The testimony from

Investigator Green also indicated that the defendant attempted to hide the property by covering

it with a blanket. His attempt to conceal the property indicates he knew it was stolen.

The evidence contained in the record is more than sufficient to support a f inding by a

rational trier of fact that the defendant was guilty of theft and possession of marijuana beyond

a reasonable doubt. Tenn. R. App. 13(e); Jackson v. Virginia

, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).

The issue is without merit.

III. Motion to Sup press

The defendant contends the evidence seized from his home and the statements he made

to authorities should have been suppressed because of an unlawful search and seizure. To

the state’s contention that the search of the defendant’s home was consensual, the defendant10 The defendant argues: “Officer Green’s admission at trial of her true reason for going to the rear

of the house operates to bar the State from relying upon consent.” The defenda nt claims that Green

concealed the reason she went to the back door of the defendant’s home at the suppression hearing and

then at trial revealed it was because of the information she had from Mr. Foster.

The record simply does not support the allegations of the defendant. At the suppression hearing,

during redirect examination of Investigator Green, she testified she went to the rear of the home via Third

Street because Mr. Foster said he had seen what he thought was his property. She made no secret about

her reasons for going to the back door as opposed to the front door.

17 argues I nvestigator Green obtained consent only after an illegal search. Investigator Green had

no lawful right to enter the defendant’s property. The defendant argues Investigator Green

went to the back door of the defendant’s home for the sole purpose of co nduc ting a search

because Mr. Foster told her that was where he had seen the stolen property. 10 “Obtaining the

Appellant’s signature on a permission to search form was.

. . no more and no less than a ruse

to cover for the unlawful intrusion and warrantless search already committed.”

The defendant seeks a reversal and order for new trial.

A. Suppression Hearing

At the January 9, 1996 suppression hearing, the following facts were established.

Investigator Green received a telephone call from Mr. Ricky Foster, the pr esident of the

concrete company, on December 14, 1994. The defendant’s home is within the same block

as the concrete company. The defendant’s home is accessible by either North Shephard or

Third Street. Third Street pro vide s access to the concrete company. Green went to the11 Green testified during the motion to suppress that she noticed the items after the initial knock

and while waiting for Lora Hacker to come to the door. At trial, she testified that she noticed the items

after knocking, speaking with Lora Hacker, and while waiting on the defendant to come to the door.

18 defendant’s home at 119 North Shephard Street. She entered the property via a driveway off

Third Street. The driveway ends at the defendant’s back porch.

Green said she went to the rear door and knocked. While she was waiting for an answer

at the door, 11 she noticed through two windows adjacent to the door several items (typewriters

and calculators) partially covered with a blank e t that matched the description of the stolen

property. She also saw two or three vacuum cleaners.

When Ms. Hacker (the defendant ’s girlfri end) came to the door, Green identified herself and

asked to see the defendant. Ms. Hacker shut the door. A few minutes la ter, the de fendant

came to the door. Green identified herself again and told him she was investigating the theft

at the concr ete company. “I told him about the information we had received regarding th e

property and asked for permission to search and he gave it.” He first gave it verbally and then

once inside the house, he signed a written consent to search form. She reviewed the contents

of the form with the defendant which included the right to refuse consent. She then called for

assistance from other officers. As officers searched the home, the defendant assisted by

pointing out various items that had been taken from the concrete company.

At the suppression hearing, defense counsel tried to attack Green’s lawful presence at the

home. Green said she did not demand access to the house; she did not tell the defendant she

was coming in; and she did not tell the family that she would make them stand in the yard until

she obtained a search warrant. She did tell the defendant that she had seen the items through

the windows. She said she had not conducted what she would term “a search.” She explained19

on redirect examination that she went to the back door of the house because Mr. Foster said

he had seen the items there.

Sgt. Danny Mantooth testified that when he arrived at the home, Investigator Green was

explaining the consent to search form to the defendant

. He described the defendant as

“passive” and said he assisted in the search.

The defendant presented tes timony from his 15-year-old daughter, Mandy Ashley. Miss

Ashley testified she heard a female officer tell her father the police could enter the hom e

without a warrant and if the defendant did not allow it, she would force the family to wait outside

while she obtained one. She said that her father insisted he did not commit the crime.

The trial judge asked the teen if she saw who brought the items into the house. She first

said she did not remember, and then said she did not see who it was. She also said she did

not remember how long the items had been there.

The trial judge denied the motion to suppress. He did not make any findings of fact on the

record.

B. Applicable Law

The standard of review for revi ewing a t rial court’s denial of a suppression motion is

whether the evidence preponderates against the trial cour t’ s findings. State v. Odom

, 928

S.W.2d 18, 22-23 (Tenn. 1996). The “par ty pr evailing in the trial court is entitled to the

strongest legitim a te view of the evidence adduced at the suppression hearing as well as all

reasonable and legitimate inferences that may be drawn from that evidence.” Odom

, 92 8

S.W.2d at 23. The credibility of witnesses, the weight of the evi dence, and the resolution of

conflicts in the evidence are all matters entrusted to the trial judge as the trier of fact. Id

. Thus,20

the factual findings of the trial court in suppression hearings are presumpti ve ly correct on

appeal and will be upheld unless the evidence preponderates against them. I d

., State v.

Woods

, 806 S.W.2d 205, 208 (Tenn. Crim. App. 1990), cert

. denied

, 502 U.S. 1079, 112 S.Ct.

986, 117 L.Ed.2d 148 (1992): see also State v. Tate

, 615 S.W.2d 161, 162 (Tenn. Crim. App.),

per

. app

. denied (Tenn. 1981).

A warrantless search is presumed to be illegal under the Fourth Amendment. Schneckloth

v. Bustamonte

, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). There are,

of course, exceptio ns to the warrant requirement including consent to search. Woods

, 806

S.W.2d at 209; State v. Green

, 613 S.W.2d 229, 232 (Tenn. Crim. App. 1980), per

. a pp

.

denied (Tenn. 1981); McGee v. State

, 2 Tenn. Crim. App. 100, 107, 451 S.W.2d 709, 712

(Tenn

. Crim. App. 1969). The state bears the burden of establishing that the search and

seizure were reasonable. State v. Crabtree

, 655 S.W.2d 173, 179 (Tenn. Crim. App. 1983).

The Tennessee Supreme Court has said, “In order to pass constitutional muster, consent

to search must be unequivocal, specific, intelligently given, and uncontaminated by duress or

coercion.” State v. Brown

, 836 S.W.2d 530, 547 (Tenn. 1992) (citing Liming v. State

, 220 Tenn.

371, 417 S.W.2d 769 (1967)). See also Schneckloth

, 412 U.S. at 248-49, 93 S.Ct. at 2059,

36 L.Ed.2d 854.

This court has observed that one does not have an expectation of privacy “in front of his

residence which leads from the public way to the front door.” State v. Baker

, 625 S.W.2d 724,

727 (Tenn. Crim. App. 1981). “The custom of expecting people to come to the front door of a

residence for various lawful purposes is of long duration.” Id

. at 727. In Baker

, an officer went

to the front door of a home to ask for directions to a nearby farm. While at the front door, he

observed a marijuana plant in the yard. That observation became the basis for a search

warrant.12 In Raines while the deputy was at the door asking about an individual named in a warrant, he

smelled marijuana coming from the home. State v. Gary Raines, et. al

, Cheatham County No. 01-C-01-

9703-CC-00108 (Tenn. Crim. App., Nashville, March 5, 1998). Deputies are allowed to “take note of

anything evident to their senses s o long as they have a right to be where they are and do not resort to

extraordinary means to make the observation.” Raines

, supra

, (citing State v. Hurley

, 876 S.W.2d 57,

67 (Tenn. 1993)). The Raines court said the deputy did not resort to extraordinary measures by simply

knocking on the door.

21 In State v. Gary Raines, et. al

, Cheatham County No. 01-C-01-9703-CC-00108, 1998 WL

96420 (Tenn. Crim. App., Nashville, March 5, 1998), this court said a law enforcement officer

has a right to knock on the front door to ask about the whereabouts of an individual listed in

an arrest warrant. 12

In this case, the de fendant’s home was accessible by two streets. Investigator Green,

using Third Street that provides access to the concrete company, drove into the defendant’s

driveway which ended at the back porch. It was not unreasonable that an individual who

entered a driveway woul d use the door closest to the drive. Investigator Green went to the

defendant’s house to ask him for consent to search the premises. Only after she was there

and after she knocked did she notice the suspicious property covered by the blanket.

The facts support the trial court’s findings of voluntary consent. The defendant gave oral

consent and then written consent. He assisted authorities by pointing out various items that

were taken. The consent form signed by the defendant explicitly states that he had a right to

refuse consent. See Schneckloth

, 412 U.S. at 249, 93 S.Ct. at 2059 (knowledge of right to

refuse is a factor when determining the voluntariness of consent). There was no evidence that

the defendant asked Investigator Green or her fellow officers to leave.13 The defendant raised this issue in conjunction with his challenge to the sufficiency of the

evidence as to marijuana possession. This court will consider the issue separately.

22 Her presence there was not unlawful. We cannot conclude that the consent was preceded

by an illegal search.

As to the defendant’s claims that the inve stigator coer ced the search, the trial judge

obviously accredited the testimony of the state’s witnesses and rejected the version of events

as testified to by the defendant’s daughter. The trial judge was in a far bet ter p osition to

evaluate credibility than we are. From our view, we can only conclude that the evidence does

not preponderate against the trial co urt’s findings. In the case before us, the trial court

obviously found the defendant voluntarily consented to the search of his home. See also State

v. James R. Wicks

, Dickson C ounty No. 01-C-01-9603-CC-0009 1 (Tenn. Crim. App., Nashville,

February 28, 1997) (This court upheld trial court’s denial of motion to suppress after finding that

the evidence did not demonstrate that consent to search was preceded by an illegal search).

The trial court did not err in denying the defendant’s motion to suppress.

IV. Jury Instruction

The defendant also contends that the trial court erred by instructing the jury on construc tive

and joint possession of the marijuana. 13 He argues there was insufficie nt p roof that he

constructively possessed the drugs, thus, the instruction was not justified. As for th e

instruction on joint possession, he essentially claims since he was the only one charged with

possession, it was error to give the jury an instruction on joint possession. In this case, the codefendant Lora Hacker was not charged with possession of marijuana.23 Construc tive possession requires that a person knowingly have the power and the intention

at a given time to exercise dominion and control over an object either directly or through others.

Construc tive possession is the ability to reduce an object to actual possession. See State v.

Williams

, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981). As this court explained in Armstrong

v. State

, a person with a possessory interest in the residence where drugs are located may be

presumed to possess the drugs. Armstrong

, 548 S.W.2d 337 (Tenn. Crim. App. 1976). As

the state points out, the ownership of the drug s is a question of fact for the jury. Thus the

instruction on construc tive possession was not in error.

Marijuana was d isco vered in the house shared by the defendant and his co-defendant

girlfriend. The defendant cites no authority to support his contention that in order to instruct the

jury about joint possession, more than one person must be indicted for the possession of

drugs.

The trial jud ge must instruct the jury fully on all issues fairly raised by the proof. State v.

Harbison

, 704 S.W.2d 314, 319 (Tenn. 1986), cert

. denied

, 476 U.S. 1153, 106 S.Ct. 2261,

90 L.Ed.2d 705 (1986). The trial judge did so in this case.

The issue is without merit.

V. Sentencing

As his final issue, the defendant complains that his four-year sentence was excessive. He

argues that the trial court erred (a) by failing to consider a mitigating factor and (b) in weighing

the mitigating and enhancing factors to arrive at the four-year sentence.24 A. Applicable Law

When there is a challenge to the length, range, or manner of service of a sentence, it is the

duty of this court to conduct a de novo review with a presumption that the determinations made

by the tria l cour

t are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is

“conditioned upon the affirm ative showing in the record that the trial co urt consi dered the

sentencing principles and all relevant facts and circumstances.” State v. Ashby

, 823 S.W.2d

166, 169 (Tenn. 1991). The Sentencing Commission Comments provide that the burden is on

the defendant to show the impropriety of the sentence.

Our review requires an analysis of (1) the evidence, if any, receiv ed at the trial and

sentencing hearing; (2) the presentence report; (3) the principles of sentencing and the

arguments of counsel relative to sentencing alternatives; (4) the nature and characteristics of

the offense; (5) any mitigating or enhancing factors; (6) any statements made by the defendant

in his own behalf; and (7) the defendant’s potential for rehabilitation or treatment. Tenn. Code

Ann. § § 40-35-102, -103, and -210; State v. Smith

, 735 S.W.2d 859, 863 (Tenn. Crim. App.

1987).

B. Enhancement Factor

The presentence report established that the defendant, age 37 at the time of the

sentencing, completed the twelfth grade. Divorced, he has three daughters and was expecting

another c hild with his co-defendant at the time of sentencing in 1996. The defendan t ha d

worked as a carpenter and lathe operator. During the latter job he was injured. At the time of

the offense, he was a driver for the Franklin Publishin g Company. His prior criminal history25

includes convictions for aggravat ed assa ult, assault and battery, possession of marijuana,

passing worthless checks, hunting without permission, two counts of careless driving, seven

counts of speeding, running a stop sign, driving with a revoked license, two counts of driving

without proper vehicle registration, violation of boat registration, and two counts of violating the

legal bumper height. The defendant’s convictions occurred in Franklin, Tennessee and in Bay

County, Florida. The defendant admitted to moderate marijuana use.

The trial court found the following enhancement factors:

(1) The defendant has a previous history of criminal co nvictions or

criminal behavior in addition to those necessary to establi s h the appropriate

range. Tenn. Code Ann. § 40-35-114(1).

(8) The defendant has a previous history of unwillingness to comply

with the conditions of a sentence involving release into the commun ity. Tenn.

Code Ann. § 40-35-114 (8).

(13) The felony was committed while on any of t he following forms of

release status if such release status is from a prior felony conviction:

(A) Bail, if the defendant is ultimately convicted of such prior

felony;

(B) Parole;

(C) Probation;

(D) Work release; or

(E) Any other type of release into the community under the

direct or indirect supervision of the department of corre ction or local

governmental authorit y. Tenn. Code Ann. § 40-35-114(13).

The trial court found no mitigating factors.

The defendant does not object to the use of enhancing factors (1) and (13) but does

object to the use of factor (8). Regarding factor (8) the trial judge said:26 I find

. . . that the defendant has a previous hist o ry of unwillingness to

comply with the conditions of a sentence involving release in the commun ity. I’m

basing that decision upon the fact that Mrs. Ledsinger testified to me that in her

judgment this defendant ha d not cooperated with her on probation, that he,

despite her instructions, had gone to the state of Alabama and I’m concluding

tha t it is reasonable to infer that if your automobile is stolen in Ala bama ther e

was a pretty good probability you were down there with the automobile when it

was stolen, and quite frankly, I’m basing that on my judgment of the credibility

and of the defendant, having observed him during the testimony of the trial, and

I just didn’t b elieve for a minute, folks, that this property was just set out for

somebody to walk by and just happen to take home with them. I understand the

jury didn’t convict of burglary, but that doesn’t necessarily mean that a burglary

didn’t occur in the situation.

The defendant objects to the t rial judge’s reliance on the defendant’s non-verbal

conduct at trial as a means for judging his credibili ty. The defendant did not take the stand and

the trial judge did not explain or elaborate on what non-verbal conduct was observed.

Even if the trial court’s reliance on the defendan t’s unex plained conduct at trial was

improper, the testimon y of Ms. Janet Ledsinger alone regarding the defendant’s actions

supports the use of factor (8).

Ms. Ledsinger supervised the defendant’s probation sentence in Tennessee which

originated in Florida. Although initially complying with the terms of his probation, the defendant

ultimately failed to pay fines, to pay cost of supervision, and to report as schedule d to Ms.

Ledsinger. The defendant began traveling to North Alabama to visit his cousin’s wife, the codefendant. When Ms. Ledsinger said he co uld no longer go, he continued. Her testimony

indicated that the defendant lied about his relationship with his c ousin’s wife and lied about

travelling to visit her.

Ms. Ledsinger’s testimony supports the use of factor (8).

C. Mitigating Factor27 The defendant argues now on appeal that the court should have taken into account that

the defendant’s actions neither caused nor threatened serious bodily injury. Tenn. Code Ann.

§ 40-35-113(1). The defendant did not ask f or th e application of any mitigating factors at

sentencing. Even if this fa c tor were to mitigate the punishment, the effect would be

substantially outweighed by the e nhan cing factors. Any error would be harmless. State v.

David McClure

, Davidson Coun ty No. 01-C-01-9505-CR-00145, 1997 WL 2112 54 (Tenn. Crim.

App., Nashville, April 30, 1997).

D. Range of Sentence

Finally, the defendant argues that the maximum sentence of four years was excessive

and asks for a sentence of three years.

The defendant was eligible for a sentence ranging from two to four years. Tenn. Code

Ann. § 40-35-112(a)(4). The statute provides that for a Class D felony the judge start at the

minimum of the range and if there are enhancement factors, and no mitigating factors, then

the court may set the sentence above the minimum but still within the range. Tenn. Code Ann.

§ 40-35-210. The trial judge did not err in sentencing the defendant to the maximum within the

range.28 The issue is without merit.

_____________________________________ L. T. LAFFERTY, SPECIAL JUDGE

CONCUR:

___________________________________ GARY R. WADE, PRESIDING JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE