### IN THE SUPREME COURT OF TENNESS EE AT JACKSON April 9, 2003 Session

STATE OF TENN ESSEE v. MAURIC E LASHAUN NA SH Appeal by P

ermis sion from

the Court

of Crimi nal Appeals Circuit Court for Tipton County No. 3933 Joseph H. Walker, Judge

No. W2001-01703-SC-R11-CD - Filed May 21, 2003

Maurice Lashaun Nash was tried be fore a Tipton County

jury for posse ssion of ma

rijuana , a sched

ule VI controlled subs ta nce, with intent to deliver. The jury convicted Nash of the lesser-included offense of facilitation of possession of marijuana with the intent to deliver. On appeal, the Court of Criminal Appeals concluded that there was insufficient evidence to support an instruction to the jury and conviction on the lesser-included offense of facilitation of possession with the intent to deliver. The Court of Criminal Appeals reversed Nash’s conviction and remanded the case to the trial court for a new trial on the charge of simple possession. B oth Nash and the State sought perm ission t o appeal the decision of the Court of Criminal Appeals. We granted both petitions and after conducting a thoroug

h review of the record and

applica ble law, w e hold tha

t there was sufficient evidence to supporta conviction for facilitation of possession of marijuana with the intent to deliver. Ac co rd in gl y, the judgment of the Court of Criminal Appeals is reversed, and the case is remanded to the trial court for enforcement of its judgment of c onviction.

Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Crim inal Appeals Reversed; Judgment of the Trial Court Reinstated

W IL LI AM M. B ARKER , J., deliver ed the opinion of the

court, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., and J ANICE M. H OLDER , JJ., joined.

Paul G. Summers, Attorney Gene ral and Repo rter; Mi chael E. Moore, So licitor Ge neral; K im R. Helper, Assistant

Attorney Genera l; Kathy Aslinge r, Assista nt Attorne

y General ; Elizabeth

T. Rice, District Attorney Genera l; and Ry an D. Br

own, Assis tant Distr

ict Att orney Gener al, for the appellant, State of Tennessee.

C. Michael Robbins, Memphis, Tennessee, for the appellee, Maurice Nash.

OPINION

STATEMENT OF

THE CASE2

In August of 1999, Tipton Coun ty Re serve D eputy

Chris Smith was driving northbound on Route51 in Brig

hton, Ten nessee w hen he sa w a white

four-do or vehic le with

a drive- out t ag. Deputy Smith stopped the vehicle because he could not read the date of expiration on the drive-out tag. Deputy

Smith testif

ied that he initially

believe d the driv er to be alone in the vehicle, but as he appr oached
, two people sat up in the back seat. The driver and owne r of the vehicle was Fidel Jefferson. Maurice

Lash aun Nash

was sea ted in th e back passenger-side seat along with Lavena Adams who was seated directly behind the driver.

As Deputy

Smith appr

oached the rea r of the v ehicle, he smell ed the “strong odor of marijuana.” Jefferso n lowere d his windo w and ga ve his dri ver’s lic ense

to Deputy Smith so a “check of the license” could be perfor med. At that time, Deputy David Gr aham arrived on the scene. Deputy Smith advised Deputy Graham of the reason

for the s top, and th at there was a strong odor of marijuana emanating from the vehicle. De puty Graham a

pproached the passenger- side of the vehicle and likewise detected the strong odor of marijuana. After Deputy Smith confirmed the status of Jefferso n’s drive

r license , he aske d Jeffers on to step o ut of the v ehicle. Deputy Sm ith g ave Jefferson a verbal warning reg arding the drive-out tag and a sked if there was any thing in the vehic le that the officers should know about. When Jefferson responded in the negative, Deputy Smith asked for, and was given, consent to search the ve hicle. Maurice Nash and

Lave na Adams were instructed to “stand at the rear of the vehicle” while D eputy Graha m searched the vehicle.

Underne aththe front passenger-side seat, De puty Graham discove

red a brown p aper bag containing what app eared t o be a “brick” of marijuana along with other

drug-related paraphe

rnalia. At trial, D eputy

Graham indicate d that the brown pa per bag was loca ted in an area out of reach of Jefferson, but within r

each of someone s itting in t

he back seat. After

the discovery of

the marijuana, Deputy Graham asked Nash, Jefferson, and Adams, “Doe s anybody know anything

about the brown pa per bag in th e car?” Na sh responded, “I t’s mine.” Deputy Graham t

hen motioned to Nash an d asked, “It’s y

ours?” Again, Nash responded in the affirmative. Deputy Smith thereafte r placed Nash under arrest a nd transp orted him t

o a deten tion fac ility

for pro ces si ng. In March of 2000, Nash was indicted for possession of marijuana with the intent to deliver.

At trial, Lavena Adams, the only defense witness called to testify , stated that she had just left work w hen Nas h and J effers on ask ed her i f she w anted to go ri ding. Adams testified that she and Nash sat in the back seat, with the defendant sitting behind the front passenger seat. Adams recalled falling asleep in the vehicle and being aw ake ned by Nash a nd Jefferson going into an apartment comp lex. In a statement to police the night of the arrest, Adams said that “they [Jefferson and Nash]

came out with a b

rown pap er bag .” However, at t rial, Ada ms testified that Nash exited the apartment alone and Jefferson followed a few minutes later car rying the brown paper b ag. Adams recalled that Jefferson placed t

he bag near the front ce nter con sole of the vehicl e. Adams again fell asleep u

ntil she heard Jefferson say

that the p olice we

re behin d their c ar. Prior

to Deputy

Smith approaching the vehicle, Adams testified that she saw Jefferson reach under the passenger-side seat. Adams furthe r stated that she did not hear Nash answer any questions posed by police about the brown paper b ag.3

TBI forensic scientist Dana Rose testified that she had analyzed the “

brick” shaped substance in the brown paper bag

and determined that it w as 443.8 g rams of ma

rijuana . Inv estiga

tor Randa ll Robbins testifie d that mar ijuana is o ften com

pressed in “brick form” for ease of transportation. He approximated the street value of the brick of marijuana to be between $800 and $1200. Combined withthe large quantity

of lighters and rolling papers found in the ca r, Robbins co ncluded t

hat the marijuana was likely

to be used for resale.

At the close of the evidenc e, the trial court instructed the jury on the charged offense of possession of mariju ana with t he intent to deliver, criminal responsibility, facilitation of possession witht he intent to deliver, and simple possession. The defendant did not object to any of the instructions on the lesser-included offenses. After deliberation, the jury convicted the defendant of the lesser-included offense of facilita tion of pos session of

marijuan a with the

intent to deliver. The trial court sentenced the defendant to eleven mont hs, twenty-n ine days, with the sentenc e to be served consecutively

to a one-ye ar, six month sentence ordered in a companion case.

The Court of Cr

iminal App eals reversed the defendant’s conviction, holding that there was insufficient

e viden ce to support the essential elements of the crime of fac ilitation of the charged offense bey ond a rea sonable d

oubt. The Court of Criminal Appeals concluded that it was plain error by the trial court

to hav e instructed the jury on the lesser-included offense of facilitation of the charged offense . The ca se was re manded to

the trial court fo r a new tr ial on the lesser offense of simple possession. Both the State of Tennessee and the defendant appe aled the decision of the Court of Criminal Appeals. Before this Court, the State argues that there was sufficie nt evidence presented
at trial t o support an instruction, and subsequent conviction, on the lesser-included offense of facilitation of possession of mar ij uan a wi th th e in ten t t o de li ver . In response, the defendant argue s that the Court of Cr

iminal App eals pro

perly revers ed the co nviction o n the basi s of insuf ficie n t evidence. However, the defendant arg ues that the Court

of Criminal Appeals erred in remanding the

case for a new trial on the lesser-include d offe nse of simple possession because double jeopardy precludes retrial. For t

he reas ons stated herein, we reverse the decision of the Court of Criminal Appeals and hold th at the evidence w as sufficient to sup port a jur y in struction

and subsequen t conviction for facilitation of possession of marijuana with the intent to deliver.

ANALYSIS

Standard of Review

When the suff

iciency of the co nvicting

evidenc e is challen ged on a ppeal, we begin “with the premise that a guilty ve

rdict ‘removes the presumption of innocence with which a defendant is initially cloaked and replaces it with one of guilt, so that on appe al a con vict ed defendant has the burden of demonstrating that the evidence is insufficient.’” State v. Ro ss , 49 S.W.3d 833, 844 (Tenn. 2001) (quot ing State v. Will iams , 913 S.W.2d 462, 466 (Tenn. 1996)) . On appe al, the Sta te is entitled to the str

onges t legitimate view of the evidence, and is “entitled to all rea sonable and legitima te infere nces that may be drawn from the evidence.” Id. at 844 -45 (ci ting State v. H all , 81 In Burns , we state d that an o ffense is a lesse r-includ ed offe nse of the great er if: (a) all of its statutory elements are included within the statutory elements of the offense charg ed; or (b) it f ails to meet the definition in part (a) only in the re spect that it contains a statutory e lement or elementsestablish

ing (1) a diffe

rent men tal sta te ind icating a lesser kind of cu lp ab il it y; and/or ( 2) a less serious h arm or ri sk of har m to th e same person, property or public interest; or (c) it consists of (1 ) facilitation of

the offense

charg ed or of a

n offens e that otherwise
meets the definition of

lesser-included offenses in part (a) or (b); or (2) an a ttempt to commit the offense charged or an of fense that otherwis e meets the definition of lesser-included offenses in part (a)

or (b); or (3) solicitation to commit the offense charged or an offe nse that otherwis e meets the definition of lesser-included offenses in part (a) or (b). Burns , 6 S.W.3d at 466-67.

2 As we noted in State v. Allen
, “[t]he same evidenc e may

support in struction s on both crimi nal res ponsi bili ty and faci lita tion .” 69 S .W.3 d 181, 188-8 9 n.2 ( Tenn. 2002) (citi ng State v. Bowles , 52 S.W.3d 69, 75 (Tenn. 2001)).

4 S.W.3d 593, 599 (Ten n. 19 99)). Accordingly , when a party challenges the sufficiency of the evidence, the standard

for review by

an appellate court is whether, after c onsidering the evidenc e in

a light most favorable to the State, an y r ational tr ier of fa ct could h ave found the esse ntial ele ments of the crime bey ond a reasonable doubt. See id. at 845 (quot ing Statev. Smith , 24 S.W.3d 274, 278 (Tenn. 2000)); see also

Tenn. R. App. P.13(e); Jackson v. V irginia , 443 U.S. 307 (1979). Moreover, the determination of

what, if a

ny, lesser- included

offense ought to be charged is a mixed question of law andfact and

requires a de novo review with no presumption of corre ctness. State v. Burns
, 6 S.W.3d 453, 461 (Tenn. 1999).

Sufficiency of the Evidence

The parties c orrect

ly agree that facilitation

of the ch arged

offense is a lesse r-includ ed offe nse under part (c) of the test established in Burns

. 1 Therefore, the sole issue before this Court is whether the evidence presented at trial was sufficient to support an instruction and subsequent conviction for facilitation of possession of marijuana with the intent to deliver. The trial court instructed the jury

on the charged offense of po ss es si on of ma ri ju an a w it h i nt en t t o d el iv er , c ri mi na l r es po ns ib il it y, facilitation o f

possession with intent to deliver, and simple possession. 2 Under Tennessee law, facilitation of a charged offe nse is established by proof tha t “knowing that

another intends to

commit

a sp ec if ic fe lo ny, but without the intent required for criminal responsibility unde r § 39-11-402(2), the person kn owingly

furnishes substantial assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403.5

In Burns
, we held th at a two- step ana lys is is n ecessary

to determine if an instruction on a lesser-included

offense is supported by

the evidence. First we

must deter

mine if an y e vidence exists that “reasonable minds could accept as to the lesser-included offense. Second, we must determine if the evidence when viewed liberally in the light most favorable to the existence of a lesser-included offense, is lega

lly s u f ficient to support a conviction for the lesser-included offense .” State v. Richmond
, 90 S.W.3d 648, 660 (Tenn. 2002) (citing Burns , 6 S.W.3d at 469). Importantly , “[t]he trial court must provide an instruction on a lesser-included offense supported by the evidence even if such instruction is not consistentwiththe theory of the State or of the defense. The evidence, not the theor ies of the parties, controls whether an instruction is required.” State v. Allen
, 69 S.W.3d 181, 187-88 (Tenn. 2002).

In re versing the trial court, th e Court of

Criminal A

ppeals c oncluded

that: [t]here was no evidence that the Appellant knew Jefferson intended
to get marijuana from inside the residence or

that the Appellant knew the substance inside the bag wa s marijuana. The Appellant’s mere pres ence in the ca

r and the apartme nt complex is not enoug h to consti tute s ub st an ti al as si st an ce in th e c om mi ss io n o f t he fe lo ny. Furthermore, the statements made by the Appellant

claim ing sole ownersh ip of the marijuana are in contra diction to the charge of facilitation. Ac co rd in gl y, the Court of Criminal Appeals held that “we are constrained to note ‘ plai n err or’ by the trial cou

rt in submit

ting to the jury

the offe nse of facilitating the possession of marijuana.” The State argues that the evidence was indeed sufficient to support both the instruction and conviction for facilitation of possession of marijuana with intent to deliver. We agree with the State.

Viewing the evide

nce in the light most

favorable to the State, we conclude that it is more than sufficient for a rational trier of fact to find bey ond a reaso nable dou

bt that the defenda nt knowingly facilitatedpossession of marijuana with the intent to deliver. All questi ons involving the c redibilit y of witnesse s, the we

ight and value to b e given

the evide nce, an d all factual issues are resolved by the trier of fact, no t the appe

llate cou rts. See State v. Mo

rris , 24 S.W.3d 788, 795 (Ten n. 2000); State

v. Pappas , 7 54 S.W.2 d 620, 623 (Tenn. Cri m. App. 198 7). The ju ry , as finde

r of fac t, obviousl

y believedthat Nash

knowing ly p

rovided s ubstantia

l assistance to Jeff

erson in t he posses s io n of marijuana.

The evidence established, and a reasonable jury

could have concluded, that at the time the vehicle was initially stopped by

polic e, one or more of the occupants had bee n recently smoking marijuana due to the

strong o dor dete cted by

Office rs S mith and Gra ham. Additionally, the jury could have concluded that Nash and Jefferson ent ered the apartment together f or the purpose of obt aining marijuana. The jury could have also found that Nash observed and was a ware of Je fferson’s attempt to hide the marijuana from the police by removing it from the front cent e r console and placing it under the front passenge r seat. Indeed, whe

n police approached the stopped vehicle, it was Nash, not Jefferson, who was in phy sical control of the marij uana due

to his proximity3 Because we find the evidence sufficient to support the conviction for facilitation of possession, the defendant’s argument that double jeopar dy preclude s retrial on the lesserincluded offense of simple possession is rendered moot.

6 to the brow n paper b ag. Fu rthermor e, the ev idence e stablis he d that Nash was willing to provide substantial assistance to Jefferson even to the point of taking full responsibility for the crime. Finally , given

the larg e quantit

y of mariju ana along with the drug pa rapher nalia, it w as reas onable
to find that Jefferson possessed the marijuana with the intent to sell or deliver. Clearly, the evidence was more than sufficie

nt for a ju ry to conclu de that Na sh knowingly off ered substantial assistance
to Jefferso n, thus fa

cilitating the felo nious posse ssion of ma rijuana withthe intent

to sell or deliver. 3

Ad di ti on al ly, we note th at the Cour t of Crimina

l Appealsplaced significance on the fact that Jefferson was not indicted in addition to Nash. However, the failure to indict Jefferson is not relevant to Nash’s conviction for

facilitation of possession. Tennessee Code Annotated section 39- 11-407(2) states tha

t it is n o defense to facilitation that “[t]he person for whose conduct the defendant is criminally responsible has been acquitted, has not been prosecuted

or convicted, or is immune from prosecution.” (Emphasis added). Theref ore, the failure to indict

Jefferson is not fatal
to the defendant’s conviction for facilitation of the char ged offe ns e. Cf. State v. Gennoe , 851 S.W.2d 833, 836 (Tenn. Crim. App. 1992) (affirminga conviction for facilitation of sexual battery without another being convicted as the principal in the cr ime).

CONCLUSION

We hold that the tr

ial cour t did not er

r in char ging th e jury on the les ser-inc luded off ense of facilitation of po ssess ion of mari juan a wit h inte nt to d elive r. We also hold tha t the evidence presented at trial was sufficient to support a convi cti on for facilitation of possession of marijuana withthe inten

t to sell or

deliver . Accor

dingly , the judgment of the Court of Cr

iminal Appeals i s reversed, and the judgment of the trial court is reinstated. This cause is remanded to the trial court for enforcement of its judgment.

It appear ing fro m the rec ord that th e defendant is ind

igent, costs of th

is appea l are taxe d to the State of Tennessee.

_____________________________ WIL LI AM M. BARK

ER, JUSTICE