1 The defendant wa s als o convict ed of evadi ng arres t and dri ving on a suspended lic ense. Given the f act t hat the notic e of appeal doe s not m ention multiple judg men ts and th e issues ra ised re late solel y to t he cocaine offen ses, we
assume no appea l has been taken regarding these c onvictions. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs J anuary

14, 2004
STATE OF TENN ESSEE v. WILLIAM F. CARTWRIGHT
Appeal from the Criminal Court for Putnam County No. 01-0641 Lillie Ann Sells, Judge

No. M2003-00483-CCA-R3-CD - F iled May 10, 2004

The defenda

nt, Wil liam F. C artwright, appeals as of rig ht from his convictions by a jury in the Putnam County

Criminal Co

urt for p ossession

with inten

t to delive

r one-ha lf gra m o r more of cocaine, a Class B felony , and simple possession of cocaine, a C lass A mis demeanor. 1 The trial court se ntenced him as a sta

ndard of fender to concurrent sentences of nine y ears for possession of one-hal f gram o r more of coca ine with intent to deliver and eleven months, twenty-nine days for simple possession of coca ine. Howe

ver, the trial cou rt order ed these convic tions merged. The petitioner contends (1) that the evidence is insufficient to support

his conviction for p ossession with intentto deliver one-half gram or more of cocaine, (2) that the trial court erre d in notrequiring the state to elect

which of fense it was prose cuting, and (3) t hat his convictions

for posse ssion with

intent to deliver one-half gram or more of cocaine and for simple

possession of coca

ine viola te double je op ar dy. We hold that the evidence is sufficient and that the trial court did not err by not re quiring the state to elect between offen ses wi th rega rd to his cocaine convictions. We also hold that altho ugh the trial court ordered the cocaine c onvictions to be m erged, i t should ha ve enter ed only
one judgment of conviction and noted the merger of the counts in that judgment. We vacate the judgments and remand the case for e ntry of a single judgment of conviction.
Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Cr iminal Co urt Vaca

ted; Case Remanded

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R

. and J OHN E VERE TT W IL LI AMS , JJ., joined.

Edwin G. Sa

dler, Coo keville, Tenness ee, for the appe llant, Willia

m F. Cartw

right.-2-

Paul G. Summers, Attorney Gene ral and Reporter; Elizabeth T. Ryan, Senior Counsel, Office of the Attorney Gene

ral; William Edward Gibson, District A ttorney Genera l; and David Alan Patterson, Assistant District Attorney Gene ral, for the appellee, State of Tennessee

.

OPINION

Officer Ronald Franklin of the Cookeville City Police Department testified that on April 11, 2001, he saw the defendant stopped at a stop sign in a 1986 g ray Oldsmobile. He sa

id he was aware that the defendant did not have a valid driver’s license. He said he turned his car around, activated his blue lights and siren, and pursued the defendant throug h a construction site. He said the defendant accele rated a nd stopped

only when con struction

work pre vented hi m from c o ntin uing. He said the defendant pulled into a driveway a nd waited for him. He said he approached the defendant and told the defendant that he knew he did not have a driver’s license. He said he told the defendant to walk with him to his patrol car in order to issue the defendant a citation.

Offi cer Frank lin testified that the defendant began to walk toward his patr ol car and then went back to h is own car, stating that he needed to retr ieve something. He said that he saw the de fe ndant reach for something in the passeng er’s seat and that he drew his gun in re sponse to the defenda nt. He said he saw the defendant holding a pla stic bag containing a white substance that was approxima

tely the si ze of

a golf ball. He said that although he had or dered the defendant to stop, the defendant ran away . He said he pursued the defendant but lost sight of him for ab out thirty

seconds. He said that

when he found the defendant, he again orde red him to stop, which he did. Officer Frankli nsaid, though, that the defendant did not have the white

substanc e after

he appre hended h im. He said he searched the defendant’s c ar and found seventy dollars. He said

that later, Officer Mitch Harrington’s dog, Speedy , found a white substance buried in a flower bed a long the rou te the defendant had taken when he ran f rom Officer Franklin.

Oncross-e

xamination, Office

r Frank lin testified that they weig

hed the white substance and found that it was thirty-two gr

ams. He acknowledged

that when he sent it to the Tennessee Bureau of Inve st iga ti on’ s (T BI) Crime Lab, their report indicate d that the white substance was cocaine but that it weighed only

25.5 grams. He said that whe n he mailed the cocaine to the TBI lab, he accide ntally wrote the wrong name on t he package. He also acknowledged that the coc aine he received back from the TBI

had a brownish color. He said the coc a ine that Speedy found wa s actually crack c ocaine. He said a n “eig ht ball” of

crack c ocaine i s about 3.5 grams a nd is usual ly shared by two or three people in a day . Onredirect-examination, Officer Franklin testified that the cocaine that they rec overed was more cocaine than he ha d seen before. He said that no drug paraphe rnalia was found on the d efenda nt o r in his car and that people who use small amounts of cocaine usually have dru g para phernal ia with the

m.
Jack Loy d Payne testified that he is e mploy ed by Highwa ys, Inc . and was

working as a “flagman”for them on April 11, 2001, when the defendant drove past him. He said he was holding
a stop sign an d warni ng driv ers to drive slowl y through the construction area. He said he heard the defendant’s car dri

ve past hi m quickly and then heard the

police in pursuit. H e said tha

t he first saw-3-

the defendant and the policeman when they were parked in a driveway and that he saw the defendant
runfrom the p oliceman . He said he told the def endant to stop in order to avoid being shot by the poli ce. He said the defendant stopped and was appre hended by the police . He said that a coupl e hours later, a man resembling the defenda nt returned to the area wh er e the chase occurred and appeared to be looking f

or someth ing. He said he belie ved this ma

n was the defenda nt. On crossexamination, he acknowledged that he was not ce rtain that the defendant was the pers o n who returned and appeared to be looking for something . He said that the manwho retu rned har assed him but that he refused to talk to the man.

Officer Mitch Harrington, a K-9 officer wi th the Cookeville City Police Department, testified that he an d h is do g, Sp ee dy, were c alled tosearch for drug s after t

he defe ndant wa s arres ted on Apr il 11, 2001. He said Speedy ha d tied for first place in a finding “lost articles” c ompetition in which
over two thousand dogs had competed. He said he took Spe edy to the def

endant’ s car in order to allow Speedy

to catch the defe ndant’s s cent. He said Spee dy f ollowed the defen

dant’s e scape r

oute and later began digging in a flower bed. He s aid that Sp eedy

found co caine in

the flower bed but that no drug paraphernalia was f ound. Special Agent Willi am Stanton , Jr., a for ensic sc ientist for the TB I, te stified that the whi te substance sent to him by Officer F ranklin was coc aine and weighed 25.5 gra ms. He said that he weighed the coca ine withou

t the plast

ic bagg ie that wa s se nt to him and t hat if he weighed the cocaine in the baggie, it may have weighed three to four more grams.
Officer Scott Winfree of the Cookeville City Police Depar tment testified

that he used

to work undercover

in the Drug Task Force, buy ing crack cocaine fr

om drug dealers. He

said an eigh t ball of crack cocaine weig

hed about 3.5 gramsand sold f or $250 to $ 300 dollars. He said that one d

ose of crack cocai ne was about on e- ha lf gr am an d t ha t p eo pl e m ig ht sm ok e s ev er al ti me s i n o ne da y. He said he had never purchased twenty -five grams of

crack cocaine because

even dealer s usually

did nothave that large of a supply and because the Drug Task F orce did not have eno ugh mone y to purchas e twenty-five g

rams of crack cocaine. He said that people buying

cocaine on the street usually had drug paraphe rnalia. On cross -examinat ion, Offi c er Winf

ree testified that if a person smokes an eight ball of crack cocaine every da y, 25.5 gr ams would be an eight-day supply. H e acknowledged

that a drug dealer will often car ry scale s and extra plastic bags and may drive a nice
car. He said that in his experienc e, someone who has tw enty-five g rams of c ocaine was going to break the cocaine into smaller portions and sell it. Upon questioning by the trial court, O ffice r Winfree testified that the cocaine found by Speedy would cost betwe en $1600 and $2500.

I. SUFFICIENCY OF THE EVIDENCE

The defendant contends that the evidence is insufficient to support his conviction for possession of one-half gram or more of cocaine with intent to deliver because no evidence was presented at trial showing that he intended to deliver the cocaine to a nyone. The

state contends the evidence is sufficient. We agree w ith the state.-4-

Our standar d of review when the defendant questions the suffic iency of the e vidence on appeal is “whether, after viewing the e v idence in the light most favorable to the prosecution, any rational trier of

fact co uld have f

ound the e ssential e lements of the crime

bey ond a rea sonable doubt.” Jackson v. V

irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). We do not re weigh the evidenc e but pre sume that t he jury has reso lved all c onflicts i n the testi

mony and draw

n all
reasona ble infere nces f rom the evidence in favor of the state. See State v. She ffield , 676 S.W.2d 542, 547 (Ten

n. 1984); Stat e v. Ca bbage , 571 S.W.2d 832, 835 (Tenn. 1978). Questions about witness credibility were

resolved by

the jury. See State v. Bland , 958 S.W.2d 651, 659 (Tenn. 1997).

Tenn esse e law proh

ibits a per

son from k

nowingl y po ssessing

cocaine with an int

ent to deliver it. T.C.A. § 39-17-417(a)(4). With regard to the def endant’s insufficiency

claim, T.C.A. § 39-17 -419 p rovid es the follo wing:

It may be infer red fro m th e am ount of a controlled substance or substances possessed by an offende r, along with other

releva nt facts surrounding the arr

est, that t he contr olled su bst ance or substances were po ssess ed wit h the p urpos e of sel ling o r othe rwise disp ensin g. It may b e infer red fro m circ umst ances i ndica ting a c asual exch ange among individua

ls of a sma

ll amount of

a contro lle d subst ance or substances that

the controlled substance or substances so exchanged
were possesse d not with the purpose of selling

or other

wise dispensing in violation of the provisions of § 39-17-417(a). Such inferences shall be transmitted to the jury by the trial judge ’s charge, and the jury will consider such infe rences along with the nature of the
su bs ta nc e p os se ss ed wh en af fi xi ng th e p en al ty. Viewingthe evidence in the light most favorable to the state, the evidence shows that the defendant had a large amount of cocaine a nd intended to deliver it to others. Officer Fra nklin te stified that when he stopped the defendant, the defendant ran fro m him afte

r retrie ving the cocaine from hiscar. He said that when he apprehended the defendant, the cocaine was missing. He said he did not find any drug paraphernalia on the defendant or in his ca r. Jack Payne testified that a man he believed
was the defendant returned to the area where the defendant had run from Officer Franklin and was looking for something. Special Agent Stanton testified that the coca ine weighed 25.5 grams. Offic er Winfree testified that one dose of crack cocaine was about one-half gram and that 25.5 g rams of cocaine was more than he had been able to buy during his time as an undercover ag ent. He said that inhis experience, any

one with that much cocaine intended to break it up and s ell it to othe rs. He also said that

people buying

cocaine for

personal use usually ha

d drug paraphernalia with them. He said that the cocaine confiscated from the defendant would cost between $1600 and

$2500 dolla

rs.
The testimony reflects that 25.5 grams of crack coca ine is a large amount and unlikely to be used by j ust one person. Moreover, the defendant’s a ctions on April 11, 2001, do notreflect that he
was under the influenc e of crack cocaine. I n addition, no drug paraphernalia was found on the defendant or in his car. See State v. Ch earis , 995 S.W.2d 641 , 645 (Tenn. Crim. App. 1999)-5-

(holding that 1.7 grams of crack coca ine, no drug paraphern alia , and baking soda was sufficient evidence for a jury

to find sufficiency

for an in tent to deliver

). We conc lude that

in the lig ht most favora ble to the state, the circumstances of this case, including the volume of cr ack cocaine found inthe flower bed

and the officers’ testimony , support the defendant’s convicti on for pos session wi th intent to deliver one-half gram or more of c ocaine.

II. ELECTION

OF OFFENSES

Alth ough the defendant does not present it as a separate issue, he contends that the trial court erred in not requiring the state to elect between the off enses of posses sion of co caine withintent to sell and possession of cocaine with intent to deliver. The state does not speci fically respond t o this contention.

When the state

charg es a def

endant with one of

fense bu t produce s evidenc e of multip le offense s, the doctrine of elec tion requ ires the s tate to el ect the p articula r offen se for which it seeks
a co nviction. Sta te v. Brown , 992 S.W.2d 389, 391 (Tenn. 1999). The doctrine enables the defendant to prepa re for a specific charg e, prote cts the de fendant agains t double je opardy

, and, most im po rt an tl y, ensures that jurors deliberate over and re nder a verd ict based upon the same offense. Id. In the present case , however, allowing the state to prosecute the de fendant for p oss ession of cocaine with the intent to sell and the intent to de liver did n ot risk dif

ferent jurors ba sing the ir individual determinations on different sets of facts. “When the evidenc e does not establish that multiple offense s have be en committ ed . . . the

need to ma

ke an ele ction nev er arise s. ” State v. Adams , 24 S.W.3d 289, 294 (Tenn. 2000). The cocai ne char ges in the prese

nt case stem only from the incident involving Officer Franklin and the de fe ndant. The jury was not requir ed to make findi ngs from multiple criminal acts to determine if the defendant was g uilty of the sale or t

h e delivery of co cain e. We

conclude that the trial court did not err by f ailing to require the state to elect as to whether the defendant possessed coca ine with the intent to sell or with the intent to deliver.

III. DOUBLE JEOPARDY

The defendant asserts that his convictions for simple possession of cocaine and possession with intent to deliver one-half gram or more of c oca ine vio late the double jeopardy clauses of the United States Constitution and the Tennessee Constitution and that we should order an acquittal for the cocaine convictions. The defendant was ind ict ed in separate counts for possession of cocaine with the intent to sell and possession of cocaine with the intent to deliver. Relative to the possession with inte nt to sell co caine, the jury convicted the defendant of the lesser included of fense of possession of cocaine. He contends that because both charges stem from the same evidenc e, h is convictions for simple possession and possession with intent to deliver ar e uncons tit utional. The state contends that

the trial court gave the defenda ntthe appropriate relief when it merg ed the two convicti ons. We agree with the state in part, but we believe tha t the recor d incor rectly re tains separa te judgments of c onviction for the c ocaine c ounts.-6-

The double jeopardy c lauses of both the United States and Tennessee Constitutions state that
no person shall be twice put in jeopardy of life or limb for

the same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. The clause has be en interpreted to in clu de t he f

ol lo win g pr ot ect io ns: “It protect s against a second prosecution for the same offense after acquittal. I t protects against a second prosecution

for the same off

ense af ter conv iction. An

d it protects against multiple punishments for the same offense.” North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2 076 (1969 ); State
v. Denton , 938 S.W.2d 373, 3 78 (Tenn . 1996). I t is the last protec tion that is of intere st in

this case.

The state con cedes th at the defendant’s convictions for both simple possession of cocaine and possession with intent to deliver cocaine arebased on the same evidenc e and, the

refore , violate doublejeopardy. The

state argues, however, that the prope r remedy is merger. We agree that under the circumst

ances of this c ase, d ouble jeo

pardy principle s prohibit c onviction s for both simple possession and possession with intent to deliver. We also agree with the state that this does not require us to follow

the defe ndant’s r equest to order a n acquitt al of the cocaine convicti ons.
A dismissal is not the only legitimate option available when double jeopardy pr

inciples are violated. In State v. Addison , 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997), this cour t stated that:
there is no need to “dismiss,” “vacate,” or “strike,” a pa rti cular “conviction” if what is meant by the ter m “conviction” is the return of the jury verdict of guilt . Rather, the j ury verdict stands as

a legitima te finding of fac t an d law whic h the tria

l court should preserve b y merging the same offense c ounts into one judgment of
conv iction . . . that notes the merger of counts with each other

. . . . S uch a merger and imposition of a single judgment of conviction protect s against double jeopardy and preserves the validity

of the jury verdict s for

f uture avoidance

of proble

ms relate d to unnec essarily dismissed“charges” or “c onvictions.” See, e .g. , State v. D avis , 613 S.W.2d 218, 221 (Tenn. 1981).

Inthe present

case, the trial court intended to merge the convictions, stating that only the defendant’s convictionfor possessionwith the in tent to de liver one -half g

ram or mor

e of coc aine wou

ld remain. A merger avoids a double jeopardy problem while pr otecting the jury ’s findings. See State v. Howard , 30 S.W.3d 271, 275 (Tenn. 2000). However, the tri al court inc orrect ly e ntered s eparat

e judgmen ts of conviction including separate sentence s. The mer g ers should result in only one judgment of conviction with only one sentence.
Based upon the foregoing

and the record as a whole, we af firm the convictions but vacate the judgments of conviction and remand the case for entry of a

single judgment of conviction.

_______________

__________

_____ _ JOSEPH M. TIPTON, JUDGE