1 We note that the defendant’s first name appears in the record as both “Larenzo” and “Lorenzo.” It is the policy of this co urt, how ever, to spell the defen dan t’s name as it app ears o n the ind ictmen t. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON July 9, 2002 Session

STATE O F TENN ESSEE v. LAREN ZO D ESHAWN HARRI S 1

Direct Appeal from the Circuit Court for Carroll County No. 01CR-1682 C. Creed McGinley, Judge

No. W2001-02626-CCA-R3-CD - Filed August 30, 2002

The defendant was convicted of possession of a Schedule I I controlled substance with the intentto manufacture, deliver, or sell, a Class B felony ; possession of a Schedule VI c ontrolled

substanc e with the intent to manufacture, deliver, or sell, a Class E felony ; and possession of drug parapher nali a,
a Class A misdemeanor. Following the denial of his motion for a new trial, he filed a timely appeal to this court, challenging the sufficiency

of the evidence in support of his convictions. We affirm the defendant’s convictions. However, because the jury assessed, and the trial court imposed, a fine for possession of a Schedule VI con tro lled substance that exceeds the statutory maximum, we remandthe case to the trial court for a new jury to be impane led to assess an appropr iate fine in Count 2 andfor entry of

a corrected judgment as to the possession of drug paraphernalia convic tion in Count 3.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d and Remanded

A L AN E. G LENN , J., delivered the opinion of the court, in which J OHN E VERE TT W ILLI AMS an d N ORMA M C G EE O GLE , JJ., joined.

Stephen D . Jackson, Ja

ckson, Te nnessee , for the

appella nt, La renzo De shawn Ha

rris.

Paul G. Summers , Attorne y General and Repor

ter; Mich ael E. Moore, Solicitor General; Michael W. C atalano, Associate Solicitor General; G. Robert Radford, District At torney Genera

l; and Eleano r Cahill, Assistant District Attorney Genera l, for the appellee, State of Tennessee.-2- OPINION

On January 11, 200 1, Huntingdon police officers, acting on a tip from a confidential informant that the d efenda nt, Larenzo Deshawn Ha

rris, was selling cocaine and marijuan a from his residence, executed a search wa rrant at 199 Sixth Avenue in Huntingdon. Among other items the officers uncovered in the search were 3.1 grams of cocaine, 37.2 gr ams of marijuan a, $375 in

cash, plasticzip-lock

sandwich bags, and a set of hand sca les. The defendant was arrested at the scene, and subsequently indicted on one c ount of possessio n of a Schedule

II controlled substance (cocaine) withthe intent to manufacture , deliver , or se ll, a Class B felony; one c ount of possession of a Schedule VI controlled substance (ma rijuana) with the in

tent to manufacture, deliver, or sell, a Cla ss E felony; and one c ount of possession of drug parapherna lia w ith the inte

nt to use, a

Class A misdemeanor.

Sergeant Johnny Hill of

the Hu ntingdon Police Department testified at the defendant’s September

7, 2001, trial that he was a cr iminal inve stigato

r with y ears of experience and tr

aining i n the detection of drugs. H e said that he obtained the search warrant for the defendant’s residence basedon the tip from the confidential informant, who had provided reliable information in the pas t, and on the observations of police officers, who had watched the house f or several day s and seen a large amount of

traffic coming a

nd going from the f

ront door . He and f

ellow off icers a rrived to execute the warrant at approximately 10:30 p.m. on January 11, 2001, pullingtheir vehicle into the front yard of

the residence and stepping from it directly onto the porch.

The defenda

nt met th e offi cers at the front door, and was directed to sit on a living room couch. Another individual who was present in the house when the officers entered ran toward the back, and an officer followed her . Sergeant Hill remained in the livingroom, keeping his eyes on the defenda

nt. As the defendant sat down, Sergeant Hill noticed him bend down a nd reach under the couch with one hand, in a motion that Sergeant Hill interpreted as pla cing an item under the couch. When Sergeant Hill looked in the area whe re the defendant had reached, he found “two . .

. small plastic bags rolled up with some crack coca ine in them.” Sergeant Hill said that the tot a l weight of the cocaine, which was packag ed separately , was 3.1 gram s, which is about the size of what is commonly refer

red to as an “8 ba

ll of cocaine.” He explained that the usual practice is for smaller sized rocks, often about one-twentieth of a gram, to be broken off a larger eight-ball for individual sale. He

estim ated that the total street value of the drug was “12 hundr ed dollars or more.”

In addition to the cocaine, Sergeant Hill also f o und fourteen small sandwich bags of marijuana, packaged in the ty pical manner for individual sale, together inside a larger plastic bag tha

t

was underneath the cushion on which the defendant was sitting. He said that the total value of the marijuana, at $20 per bag, was approximately $280. Officers also seized $375 in cash from the defendant’s person. Sergeant Hill testified that he had known the

defenda nt for some

time, and that, to his knowledge, he had neve r had a job. Other items u ncovered in the se arch we re a par tially smoked “blunt,” ( i.e. , mar ijuan a rol led u

p into a pie ce of

toba cco) , sev eral

empty plast ic zi p -lock bags simil ar to the

ones in which the ma rijua na was p ackaged , a set of han d scal es use d to we igh-3-

marijuana, and a sma

ll two-wa y r adio. Ser geant H ill testifi ed that po lice off

icers we re incr easing ly finding two-way r

adios used in the drug trade as a method for “ lookouts” to radio warnings to drug dealers about the presence and activitie s of polic e offic ers. He said that t

he hand s cales a

nd some of the plastic zip-lock

bags were discovered in a be droom that contained a man’s clothing and a jail propert y bag wit h the defendant’s name on it. Other plastic bags w ere discovered in the kitchen, and the partially smoked

blunt was d

iscover ed inside a small box th at was in a

nother be droom. The only other individuals present in the home when the search was conducte d were the defendant’s mother, Stephanie Harris, and the defendant’s sister. Neither ha d gone near the

couch where the cocaine and marijuana were found. The defendant’s mother wa s char ged as a codef endant in the case, and subseque ntly pled guilty

to lesser charg es.
Sergeant Hi ll test ified on cross-examination that the house was rented to the defendant’s aunt, an elde rly lady

wh o was not present when the search was e xecuted. To his knowledge and basedupon his observations of the house over the previous few day s, the d efenda nt was the

only adult male living in the home. He did not observe any thing in the defendant’s hand, either when the defendan tmet the of

ficers a t the door , or when

he sat down on the co

uch. Nor did he se e th e defendant reach i nto his pockets before he made the ge sture that led Sergeant Hill to believe he had placed something under the couch. Sergea nt Hill agreed he probably would have seen the large bag of marijuan a in the de

fendant ’s hand ha

d the def endant pl aced it

under the cushion after

the officers entered the house . He ack

nowledg ed that no ne of the ite ms recovere d in the search were fingerprinted. He said that the defendant’s mother was char ged as a codefendant approximately one week later du e to her k

nowledg e of, and

particip ation in, th

e defendant’ s d rug selling ac tivities in the home.

Brian Lee Eaton, a for

ensic scientist with the Tennessee Bureau of I nvestigation Cri m e Laboratory

in Jackson, testified that he received two different

substances to analyze in connection withthe case: a plant material, which he determined to be marijuana, and a rock-like substance, which he deter

mined tobe 3.1 grams of cocaine. He ide ntified the substances, which were admitted

as exhibits. He ackno wledged o n cross-examination that he had not been asked to conduct fingerprint analy ses of the substances.

The defendant

elected not to testify, and no witnesses wer e presented on his behalf. After delib erati ng, the jury

found him g

uilty of each count of t

he indict ment, setting fines of

$65,000 for the pos session of a Schedule II controlled substance conviction, $50,000 for the possession of a Schedule VI c ontrolled

substanc e convic tio n, and $500 f or the pos session of

drug pa rapher nalia conviction. Followin g a sen tencin g hearing, t

he trial court sentenced the defendant to conc urrent terms of eleven y ears in the Department of Correction for possession o f a Sche dule II controlled substance, two years in the D epartment of Correction fo r possession of a Schedule VI c ontrolled substance, and eleven months, twenty- nine days in the coun t y jail for possession of drug2 Although the defe ndant was c onvi cted of pos sess ion of drug paraphernalia in Count 3 of the i ndictment, t he judgment form err oneously shows both that the def en dant was convi cted of t his of fense and that

the cha rge was dismi ssed. Accordingly, alt hough affirming the convi cti on for thi s of fen se, we re mand f

or entry of a corre cted j udgm ent.

-4- paraphernalia. 2 The trial court noted that the defendant had committed the instant offenses while on probation for a prior conv iction for sa le of a Schedule II

controlled substance. Consequently , the trial court ordered that

the sentences be served consecutively to the defendant’s sentence on the prior drug conviction.

ANALYSIS

Sufficiency of the Evidence

The sol e is sue the de

fendant raises o n appea

l is whethe

r the evi dence w as suffic ient to support his convictions. When the sufficiency of the convicting evidence

is challenged, the relevant question of the reviewing court is “whether, a fter viewing the

evidence in the light most favora ble
to the prosecution, any rationa l trie r of fact

could hav e found th

e essent ial eleme nts of the crime charged beyond a re asonable doubt.” Jackson v. Virg inia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 6 1 L. Ed. 2 d 560 (197 9); see also State v. Evans , 838 S.W.2d 1 85, 190-9 2 (Tenn. 1992); State v. Anderson
, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992) ; Tenn. R. A pp. P. 13(e ) (“Fin dings of

guilt in criminal actions whether by the trial court or jury

shall be s et aside

if the evidence is insufficient
to support the findings by the trier of fact of guilt bey ond a rea sonable d

oubt.”). This rule

is applica ble to findings of guilt based on circumstant i al, as well as direct, evidence. See State v. Brown
, 551 S.W.2d 329, 331 (Tenn. 1977); Far mer v. Sta te , 343 S.W.2d 895, 897 (Tenn. 1961).

In determining the sufficiency of the evidence, this court does not reweigh or reevalua te the evidence. Statev. Cab bage , 571 S.W.2d 8 32, 835 (T enn. 1978 ); State v. H atchett
, 560 S.W.2d 627, 630 (Tenn. 1978). Neither doe s this cour t su bstitute itsinfere

nces for those of t

he trier of fact in circumstantial evidence cases. Liak as v. State , 286 S.W.2d 856, 8 59 (Tenn . 1956); Farmer v. State
, 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). To the co ntrary , we are require d to give

the State the stronge st legitimate view of theevidence contained in the record, as we ll as all reasonable inferences that can be drawn from it in support of the convictions. Cabba ge , 571 S.W.2d at 835.

All questions involving

the cre dibil it y of witnesses, the we ight and value to be given the evidence, and all f

actual is sues a

re resolved by the trie

r of fact. See State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987) . “A guilty ve rdict by the jury , approve d by the trial judge
, accre dits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory of t he State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction re moves the presumption of innocence w it h which a defendant is initially c loaked and replaces it with one of guilt, so that on a

ppeal, a convic ted defe

ndant hasthe burde

n of demon strating

that the e vidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).-5-

The defenda

nt c ontends th at the evidence w as insuff icient to p

rove bey ond a rea sonable doubthis actual or

constructive possession of the drugs and drug pa raphernalia found in the home. He asserts that the proof was not sufficient to show that he placed the cocaine undernea th the couch

or possessed or even knew of the marijuana under the cushi on. He fu rther a sserts tha

t the jail prope rty bag an d male clothing found in the b edroom w ere not s ufficie nt to estab lish he wa s a permane nt reside nt of the h ome. He p oints out tha t his mother

pled gu ilty to poss essin g the dr ugs and paraphe

rnalia f ound in the

home, and

argue s that neit

her his me

re pres ence at the scene, nor association with his mother, is sufficient to show that he possessed the cocaine, marijuana, and drug paraphernalia at issue in the case. The State r esponds that the evidence was sufficient for the jury
to infer the defendant’s constructive and joint possession of

the drugs and drug para

phernalia found in the home.

In order to

convict t he defe ndant of p ossession

of a Sche dule II

controlled substance with the intentto manufa

cture, d eliv er, or sell, a Class B felony , the State had to prove that the defendant knowing ly

possessed more than .5 grams of cocaine with the in

tent to man

ufactur e, delive r, or sel l it. See Tenn. Code Ann. § 39-17-417(a)(4), (c)(1) (1997). To convict the defendant of possession of a Schedule VI controlled substanc e with the intent to manufacture, deliver, or sell, a Cla ss E fe lo ny, the State

had to show that he knowingly possessed not less than one-half ounce nor more than
ten pounds of

marijuan a with the

intent to manufacture, deliver, or sell it. See Tenn. Code Ann. § 39-17-417(a)(4), (g)(1) (1997). Finally , to convict him of possessio n of drug

paraphe rnalia, a Class A misdemeanor, the State had to show that he used or p osses sed with the intent to use drug paraphe rnalia to “plant, propagate, cultivate, gr ow, h arvest, manufacture, co mpound, c onvert, produce, process, prepare, test, ana lyze , pack, r

epack, store, c ontain, c onceal, inject, in gest, inhale, or other wise intr oduce int o the human body a controlled substanc e[.]” Tenn. Code Ann. § 39-17- 425(a)(1) (1997).

P ossessio n of drug s and drug paraphe rnalia ma y oc cur either alone

or jointly with other s. See State v. Copeland , 677 S .W. 2d 471, 476 (Tenn. Crim. App. 1984). Possession may also be constructive as well as actual. See Stat e v. Sha w , 37 S.W.3d 900, 903 (Tenn. 2001); State v. Transou
, 928 S.W.2d 949, 955-56 (Tenn. Cr im. App. 1996) ; State v. Cooper , 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). “ Const ructiv e possession requires that a person knowingly have the power and the intention at a giventime to exercise dominion and control over an object, either directly or throu gh others. In essenc e , constructive possession is the ability to reduce an object to actual possession.” Copeland , 677 S.W.2d at 476 (citation omitted).

An ind ividual’s mer e prese nce in an area in which dr ugs are found, or

associa tion with

ano ther individual in possession of drugs, is not, alone, sufficient to establish construc tiv e possession. Shaw , 37 S.W.3d at 903 (c itin g State v. Patterson , 966 S.W.2d 435, 445 ( Tenn. Cri m. App. 1997); Cooper , 736 S.W.2d a t 129). I n this case, however, there was e vidence to show that the defendant was more than the uninformed and unaw are visitor to the home

he claimsto have been. The d efenda

nt was home

when the office rs arriv ed to execute the se arch wa rrant a nd met the

m a t the door. Men’s clothing and a jail property bag bearing the def

endant’s name were fou nd in one of the bedrooms of the house. Having watched the house for several day s, S ergea nt H ill was not-6-

aware that any other man lived a t the home. The hand scales used to weigh marijuana and plast ic bags similar to t

hose in which the marijuana was packaged w ere found in the bedroom which, from every indication, was that of the defendant. Possession of premises in whi ch contraband is found
creates an inference that the possessor had possession of the contra band. See Transou
, 928 S.W.2d at 956; Armstron g v. State , 548 S.W.2d 334, 336 (Tenn. Crim. App. 1976). The cocainewas found underne aththe couch on which the defe ndant wa s sitting, in the exact spotwhere Sergeant Hill had observed him reaching, and the marijuana was f oun d alm ost directly underne ath the defendant’s bo dy, under the cushion on which he was sitting. This evidence was sufficient f or a rational trier of fact to infer t he defe ndant’s c onstruct

ive, joint p ossession

with his moth

er of th e drug s and drug paraphernalia found in the home.

Moreover, a rational trier of fact could have reasona bly concluded fr

om the evidence that the defendant’s possessio n of the dr ugs and drug pa rapher nalia wa s for the

purpose of drug -se lling activities he was conducting from the home. We, therefore, conclude that the evidence was sufficient to convict the defendant of possession of cocaine with the intent to manufacture, deliver,

or sell; possession of marijuana with the intent to manufacture, deliver, or s ell; and possession of drug paraphernalia. Se e State v. Ro ss , 49 S.W.3d 833, 846 (Tenn. 2001) (registration for and payment for hotel room, plus finding of defendant’s items in the room, and his possession of a room ke y, resulted

in infere nce that he posses sed drug s in room); Patterson , 966 S.W.2d at 445 (def endants

on the premises and in same areas where c ocaine and drug paraphe rnalia w ere fou

nd constr uctively possessed both).

The State has noted tha

t t he $50,000 f

ine imposed for the defendant’s conviction for possession of a Schedule VI controlled substance exceeds the maximum fine of $5000 authorized by Tenness ee Code A

nnotated section 3 9-17-417 (g)(1 ). Bec ause the Tenness ee Co ns titution provides every c itizen the right to have a jury of his pee rs asses s any

fine in excess of $50, see Tenn. Const. art. VI, § 14, this court may not reduce the fine that was erroneously approved and imposed by the trial court. See State v. Ma rtin , 940 S.W.2d 567, 570-7 1 (Tenn. 1997). “Howev er, it is permissib le to remand the case for a determination on the issue of the fine alone, so that defendant may have a jury

assess a fine within the statutory limits.” State v. J ohn William Kuhlman , No. 01C01-9702-CC-0005 9, 1998 Tenn. Crim. App. LEXI S 452, at *9 (Tenn. Crim. App. Apr. 13, 1998), perm. to appeal denied (Tenn. Jan. 19, 1999) . Accordingly , we affirm the defendan t’s convicti ons, but rema

nd the case to the trial

court to im

panel a j ury

to fix an ap

propria te fine in Count 2 and for entry

of a corrected judgment as to the possession of drug paraphernalia convic tion in Count 3.

___________________________________ ALAN E. GL

ENN, JUDGE