### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON May 7, 2002

Session
STATE OF TENN ESSEE v. MAURIC E LASHAUN NA SH
Direct Appeal from the Circuit Court for Tipton County

No. 3933 Joseph H. Walker, Judge

No. W2001-01703-CCA-R3-CD - Filed August 14, 2002

The Appellan

t, Mauric e La shaun Na sh, appe als his conviction by a Tipton County jury for facilitation of po ssession of marijuana, a schedule VI controlled substance, with intent to deliver, a class A misdemeanor. On appeal, Nash ra ises the following issues for our review: (1) whether the trial court er

red by deny ing his mo tion to supp

ress, and (2) whether the evidence in the record is insufficient

as a matter of law to sustain his conviction. After a review of the record, we

find plain
error in the trial court’s instruction to the jury cha rging the offense of

facilitation , as this lesser offense was not fairly r

aised by the evid ence. Accordingly , Nash’s conviction is reversed and remanded for a new trial upon the lesser of fense of class A simple possession. Tenn. R. App.P. 3; Judgm ent of the Circuit C ourt Reversed and R emanded.

D AVID G. H AYES , J ., delive red th e opinion of the court, in which J ERRY L. S MITH and A LAN E. G LENN , JJ., joined. C. Michael Robbins, Memphis, Tennessee, for the Appellant, Maurice Lasha un Nash.

Paul G. Summers , Attorne y Gener al and Re porter; Michael M oore, Soli c itor Gene ral; Kim R. Helper, Assistant

Attorney Genera l; Elizabeth T. Rice, District Attorney General; and Ryan Brown, Assistant District Attorney General, for the Appellee, State of Te nnessee.

OPINION

Factual Ba

ckground

On Au gust 19, 1999, ar

ound 11:30

p.m., Tipto n County

Reserve Deputy Chris Smith , stopped a white four-door LTD traveling on Highway

51 in Bright on. The vehicle was driven by Fidel Jefferson and occupied by two passengers, the Appellant and Lave na Adams , who were in the backsea t. Deputy

Sm ith stopped the vehicle because he “could not read the drive-out tag, the expiration on the drive-out tag,” which was display ed in the upper-left corner of the ca r window.-2-

As Deputy Smith approached the rear of the vehicle, he was able to read the drive -out t ag, which was valid. He also smelled “a strong odor of marijuana.” At this time, the two windows on the driver’s side of the vehicle “were up.” Jefferson thereafter

lowered the windo w to spea

k with Deputy Smith. Depu

ty Sm ith took Jeffe

rson’s dr iver lice nse and r eturned to his vehi cle“to check the license of the driver.” While Smith was conducting the license check, Dep uty David Graha m arrived on the scene. Deputy

Smith advised Deputy Graha m “that [he] stopped the vehicle, that two subjectswas in

the back seat that popped up when [he] was approaching the vehicle, told him [he] had the licen se, [he] wa s checking the li cen se on the subject, and that [he] had smelled the strong odor of marijuana.” As Deputy Gra ham approached

the passe nger- side of th

e vehicl e, he als o could “smell the smell of

marijuana.” After Deputy Smith confirmed the status of Jefferson’s driver license and returned to the stopped vehicle, he

asked[Jefferso n] if he would step out , advised him why [he] had stopped him, [gave] him a ve rbal war

nin g to get the drive-out tag w here it would be legible, [gave Jefferson ’s] license ba ck an d a sk ed hi m i f t he re wa s a nyt hi ng in th e v eh ic le [t he y] should kn ow ab ou t. An d [ Je ff

er so n] ad vi se d t he re wa sn ’t , a nd [t he y] asked him for consent to search the vehicle.

Jefferson consented. The Ap pellant a nd Adams were also removed from the vehicle, and the three of them were madeto “stand at the rear of the ve hicle.” Deputy

Smith stay

ed with the

Appellan t, Jefferson, and Adams, and Deputy G raham searched the vehicle. Upon sea rch of the vehicl e, Deput

y Graham found a brown paper bag con taini ng 443.8 grams of dry , packaged marijuana and dr ug paraphernalia “underneath the pa ssenger’s side of the front seat.”

After discovery of

the marijuana, Deputy

Graham asked the Appellant, Jeffers on, and Adams , “Does an y

bod y kno w a ny thi ngab out

the brow n pa

pe r b ag in t he ca r?” The Appellant

responded, “It’s mine.” Deputy Gr

aham again inquired, “I

t’s y our s?” Th e A pp el la nt re sp on de d a ff ir ma ti ve ly. At the time the se st atements were made by the Appellant, he was not under formal arrest and ha d not been Mirandized. According to Adams, e arlier in the evening, she, the Appellant, and Jefferson stopped at an apartment complex in Memphis. The Appellant and Jefferson went inside. The Appellant returned to the vehicle in “about five minut es.” Jefferson exited the apartment “a minute or two” later carry ing a brown paper bag, which he placed “under the armrest, so it was right in the middle of the car.” Jefferson then started the vehicle and again be gan driving. Adams fell asleep until awoken by the police.

In March of

2000, the

Appellan t was indicted for p ossession of mariju ana with intent to deliver. The Appellant filed a motion to suppress the evidence obtained as a r esult of the stop, which
was denied on January 10, 2001. Afte r a trial by jury, the Appellant was found guilty of facilitation1 The trial cou rt cha rged poss ession with int ent t o deli ver, cri minal r esponsibil it y for pos sess ion with inten t to

deliv er, facilitatio n of poss ession with the inte nt to d eliver , and simp le po ssession

. -3- of possessio n of marij uana with intent to de

li ver. 1 The Appellant received a sentence of e leven months and twenty-nine day s to be served in the Tipton County jail. The Appe llant’s motion for new trial was denied, and this timely appe al followed.
ANALYSIS
I. Motion t

o Suppress

The Appellant

argu es that “the trial court erred by overruling [his] motion to suppress.” Sp ec if ic al ly, he contends (1) that Depu ty Sm ith was not

authorize d to effect a stop in order to read the drive-o ut tag on the car; (2) that the detection of the odor of marijuana did not provide a
reasona ble ground

to reque st permiss ion to search; and (3) Deputy Graham should have Mirandized the Appellant, Jefferson, and Adams before inquiring a bout the marijuana.

In reviewing a denial of a motion t o suppress, this court looks to the facts adduced at the suppression hearing which are most favora ble to the preva ilin g party. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000) (citi ng State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996)). In conside ring the evidence presented at the hearing, this court extends gr eat deference to the fact-finding of the suppression hearing judge with respect to weighing credibi lity, determining facts, and resolving conflict s in the evidenc e. Id.; see also State v. Walton , 41 S.W.3d 75, 81 (Tenn. 2001). Indeed, these findings will be upheld unless the evidence prepondera tes otherwise. Daniel, 12 S.W.3d at 423. I n this cas e, the tr

ial cour t denied t he Appellant’s mot

ion to suppr

ess, find ing that :

. . . the officers’ testimony established that they

had a lawful right

to stop the vehicle, and after stopping the vehicle in a lawfulmanner, and right after, smelling the odor of what they believed to be marijuana, that gave the officers rea sonable grounds for suspicion that some i llegal activity was afo ot, reque sted per

mission of t

he drive r to search the vehicle, the driver

gave p ermission , and ther efore t he motion to

suppress on the basis of an illegal stop should be denied.
Further, the Court finds that the gener al questio n asked o f allthree oc cupants who were standing at the rear of the vehicle, whethe r the bag bel onged to any of them, was a type of

ques tion that di d not require a Miranda warning, a nd that the statement that the defendant

made, tha

t the bag was his and that the

contentsof the bag was his, should not be suppressed.

None of the occupants were under a formal arrest or restraint. Mr. Nash was only placed under formal arrest or re straint, a s indi cated, after he acknowledg ed ownersh ip for the brown bag and its contents of marijuana. The other occupants of the vehicle were not arrested.-4-

A. Stop

The State main

tain s th at the Appellant does not have standing to contest the stop of Jefferson’s car. Standing is ultimately a question of law, subject on appeal to de novo review agains t the backdro

p of a tria l court' s factua

l determinations. State v. Jackson , No. M1998-00035-CCA-R3- CD (Tenn . Cri m. App . at Na shvi lle, M ay 5, 2000 ) (cit ing United States v. Cooper , 133 F.3d 1394, 1398 (11 th Cir. 1998) ; see a ls o United States v. Gama-Bastidas , 142 F.3d 1233, 1237 (10 th Cir. 1998); United Sta tes v. Ib arra , 948 F.2d 903, 905 (5 th Cir. 1991) ; United States v. Blanco , 844 F.2d 344, 349 n.4 (6 th Cir. 1988); United Sta tes v. Kue spert , 773 F.2d1066, 1067 (9 th Cir. 1985) ; United States v. Smith , 621 F.2d 483, 489 n.3 (2 nd Cir. 198 0)). Upon de novo review, we agree with the Stateand conclude

that the A

ppellant does not ha

ve standing to challen ge the v alidity of the tra ffic stop.
The Fourth A mendment t o the United States Constitution provides that "[t]he right of the people to be se cure . . . agains t unreas onable se arches and seizur

es, shall not be viol ated." U.S. Const. amend. IV. Article I, Section 7 of the Tennessee Constitution similarly provides "[t]hat the people shall be secure . . . from unreasonable sear ches and seizures." Tenn. Const. art. I, § 7. I n the cont ext of these particular cons titutional

provision s, the so- called " standing " requi rement issimply the rigorous applic atio n of t he principle that the rights thereby secured are personal. Rakas v. Illinois , 439 U.S. 128, 139, 99 S. Ct. 421, 428 (1978 ). In other wo rds, in ch alleng ing the l awfulne ss of a searc h or seizur

e under e ither the United Sta

tes or Te nnesse e Constitu tion, a defendant must prelimina rily establish that the disputed search or seizure intruded upon his own privacy or personal
se cu ri ty. See Daniel , 12 S.W.3d a t 424 (Ten

n. 2000). Not all pe

rso nal i ntercourse between policemen and citizens involves "seizures" of persons. When an officer, by means of physica

l force
or show of authority, has in some wa y restrained the liberty of a c itizen a “seizure” has occurred. Terry v. O

hio , 392 U.S. 1 , 19 n.16, 8 8 S. Ct. 1868, 1879 n.16 ( 1968); State v. M oore , 776 S.W.2d 933, 937 (Ten

n. 1989). Police que stioning , by itself, isunlikely

to result in a constitutional violation. State v. Ashwort

h , 3 S. W.3d 25, 29 (Tenn. Crim. App. 1999) (citation omitted). “Unless the circumstances of [an] encounter are so intimidating as to demo nstrate t hat a re asonable

person w ould have believed he was not free to leave if he had not responded, one cannot say that the questioning resultedin a detenti on under the Fo urth Amendm ent." Id. After a review of the record, we c onclude that the Appellant was not seized for cons titutional

purposeswhen De

puty Smith stoppe d the vehi cle in order to determine the validity of the drive-out tag. Therefore , the Appellant does not have standing to challenge the stop of the vehicle.
B. Search

The State also contends that the Appel lant d oes no t have stand ing to chall enge the search of Jefferson’s car. We agree. One w ho challenges the rea sonableness of a search or seizure has the initial burden of establishing a legitimate expectation of privacy in the place or thing to be searched. State v. Oody , 823 S.W.2d 554, 560 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1991). One who does n ot hav e such an ex pectat ion o f priv acy lacks "s tandi ng" to cha llenge the search. See State
v. Patterson , 966 S.W.2d 435, 441 n.5 (Tenn. Crim. App. 1997). There are seven factors to be-5-

considered

when determining if a legitimate expectation of pri vacy e xists: (1) ownership of the pr op er ty; (2) whe

ther the defenda nt has a posse ssory interest in the thing se ized; (3) whether the defendant has a possessory inter

est in the pl ace searc hed; (4) whether the defe ndant hasa right

to exclude others from that place; (5) whether he has e xhibited a subjective expectation that the place would remain f ree fr om intrusio n by

th e state; (6) whether the defendant took normal prec autions to maintain his privacy; and (7)whether he was legitimately on the premises. Oody , 823 S.W.2d at 560. Ap pl yi ng these factors, we conc lude that the Appellant doe s not have a legit imate expectation of p ri va cy i n Jefferson's car. The Appellant was a passenger in the vehicle. He did not have a ny poss essory

inte rest in the car. There was no evidenc e that the Appellant exhibited a subjective expectation of privacy

in the vehicle. Accordingly , we conclude that the Appellant does not have standing to challenge the searc h of Jefferson's vehicle.
C. Miranda

warnings The Appellant contends that his admission claiming ownership of the marijuana should be suppressedbecause he wa s in custo dy at the time his statement was made and he had not been provided Miranda warnin gs. The Fifth Amendment prot ection against self-incrimination "privileg es [a person] not to answe

r offici al questio ns put to him in any other pr oceeding, civil

or crimin al, formal or informal, where the answers might incr iminate him in fut u re criminal proceedings." Minnesot a v. Murphy , 465 U.S. 420, 426, 104 S. Ct. 1136, 1141 (1984). In fact, the state ments of
an accused made during the course of custodial interrogation are inadmissible as evidence unless the Stateestablishes that the accused was advised of cer tai n constituti onal rig

hts and wa

ived those rights. State v. Anderson , 937 S .W.2 d 851, 853 (T enn. 1 996). Alth ough we ackn owled ge an ind ivid ual's constitutional right against self-incrimination and right to be forewarned

of these rights, we likew ise
reco gniz e that voluntary statements, even if incrim inating , are not per se barred by t he Fifth Amendmen

t. See Miranda v. Arizona , 384 U.S. 4 36, 444, 86 S. Ct. 1602, 1612 (1 966); see also California

v. Beheler , 463 U.S. 1121, 1123, 103 S. Ct. 3517, 3519(1983); Oregon v. Mathiason , 429 U.S. 492, 494, 9 7 S. Ct. 711, 713 (1977); Beckwith v. United States , 425 U.S. 341, 346-47, 9 6 S. Ct. 1612, 1616 (197 6). I

t is only when an individual

is taken int

o custody or other wise dep rived of his freedom by the authoriti es in

any significant way and is subj ected t o ques tion ing [t hat] the pr ivil ege agains tself-incrimination is jeopardized, requiring the authorities to adequa tely advise the individ

ual of his constitutional protections. Miranda , 384 U.S. at 444, 86 S. Ct. at 1612. In other words, befor e Miranda warnings are required, the a ccused must be the subject of custodial interrogation. Id.

In determin

ing whe ther an individual

i s "in custod y" a s c on te mp la te d b y Miranda , it is incumbent

upon the r

eviewing court to d

ecide whether, "under

the totality o f circ umstances, a reasona ble pers on in the su spect' s position w ould consider himself or

herself deprived of freedom of mov ement to a degree associ ated with fo rmal arrest." Walton , 41 S.W.3d a t 82; see Anderson , 937 S.W.2d at 85 5. Fact ors relevant

to th is determination include, but are not limited to, the follo wing: (1) the t ime and lo cation of the interrogation; (2) the duration and c haracter of the quest ioni ng; (3) the officer's tone of voice a nd general demeanor; (4) the suspect's method of-6-

transportation to the place of questioning; (5) the number of police off icers pre sent; (6) any limitation on movement or other form of restraint imposed on the suspect duringthe interrogation; (7) any in terac tions between the officer and the suspect; (8) the suspect's verbal or nonverbal response s; (9) the e

xtent to whic

h the suspe ct is c onfro nted w ith t he law enforc ement offic er's suspicions or evidence of

guilt; and (10) the extent to which the suspect is made aware that he or she is free to refrain from answer ing questions or to end the interview at will. Anderson , 937 S.W.2d at 855 (citations omitted). The trial court is provided a wide latitude of discretion in its decision, and that decision will not be

overtur ned by this cour t unless it appears there has been an abuse of the trial court 's discretion and a violation of the defendant's rig hts. See State

v. Smith , 868 S.W.2d 561, 570 (Tenn. 1993), cert. denied , 513 U.S. 960, 115 S. Ct. 417 (1994).

We conclude that

the trial court did not abuse its discretion in determining that the Appellant
was not in custody during the time he made the incriminating statement s. “[T]he initial determination of custod

y de pends on th

e obje ct ive circumstances of the interroga tion, not on the
s ubjective views harbored by either the interrogating offic ers or the person being questioned." Stansbury v. Californ ia , 511 U.S. 318, 323, 114 S. Ct. 1526, 1529 (1994). Specifically, the inquiry is "how a reasonable man in the suspect' s position would have understood his situation," i.e. , would he have felt that he was not free to leave a nd, thus, in custody. Berkemer v. McCar ty , 468 U.S. 420, 442, 104 S. Ct. 313 8, 3151 (1 984); see also Michigan v. Chesternut , 486 U.S. 567, 573, 108 S. Ct. 1975, 1979 (198 8); State v. Walton , 41 S.W.3d at 82; State v. Mosier , 888 S.W.2d 781, 784 (Tenn. Crim. App. 1994 ); State v. Furlough , 797 S.W.2d 6 31, 639 (Tenn. Cr im. App.), per

m. to appeal denied , (Tenn. 1990). Considering the totality of the circumstance s now bef ore us, in the lig

ht most favorable to theState, we hold that the evidence supports a conclusion that the Appellant was not in custody when he ma

de the incriminating statements in response to Deputy Graham’s quest ioni ng. The Appellant was not under formal arrest until after the statements were ma de. At no time was he threate ned or co erced into provid ing a sta tement. Ac co rd in gl y, the Appellant's statements did not arise from a custodial environment with the attendant entitlement to Miranda warnings. This issue is without me

rit. II. Sufficiency of the Evidence

The Appellant next contends that the evidence was insufficient to “sustain the judgment of conviction for fac ilita

ti on of posse ssion of ma rijuana with the in

tent to deliver,” a class A misdemeanor. Specifically, he a rgues that “there is no proof of any assistance being provided by the [Appellan t] to Jefferson; andfurther, that there is no proof of any knowledge by

the [Appellant] of any of the a

ctivities of Jefferson.” Any sufficie ncy analy sis necessarily

includes review of the elements of the offense f or which the defendant is convicted. In this ca se, the trial court elected to instruct the jury on the offense of facilitating possession of marijuana wit h intent to deliver. No objection was entered to the trial court 's instruction on this charge. Nonetheless, a trial court has the duty , in criminal cases, t o fully instruct the jury on the g eneral

principle s of law r

ele vant to th e is sue s ra is ed b y the evi den ce. In other words, the court must instruct the jury on those pr inciples closely and

openly connec ted with the facts before the court and which ar e necessary

for the jury' s understand ing of the case. T his2 Absent this st andard, the trial j udge w ho charges a lesser offense based upo n less than legally suffi cien t

evidence would be fa ced wit h the a bsurd ne cess it y, pre dicated upon it s own invi ted e rror , of entering a j udgment of acquitt al following the jury's guilty verdict on the les ser offense. Moreov er, to employ a lesser standard in det ermini ng whether the lesser offen se should be inst ructed invites the jur y to re turn a com pro mise or oth erw ise un wa rran ted v erdic t. State v. Elder , 982 S.W .2d 871, 878 (Tenn. Crim . App. 199 8).

During delib eratio ns, the jury r eturn ed w ith a question indicating tha t the verdict in ths ca se was a c om prom ise verd ict. The question rea ds: “A s a j ury, 11 to 1, we feel the defendan t is guil ty of possession with intent to deli ver. Since we ca nno t at least yet agree, is i t our l egal obli gation t o go to the l esser- included charge of facil itat ion? The one differ ent vote does a gree with fa cili tati on.”
-7- obligation includes gi ving instructions on lesser offenses included in the indictment, without any request on the part

of the defendant. See Tenn. Code Ann. § 40-18-110(a) (1997). I n determining when an instruction should be given, we are mindful that the ultimate goa l of cri minal procee dings should be a solemn search for the truth, so that one acc used of a crime will be convicted or acquitted depending on the suff

iciency of the evidence w

hen meas ured ag ainst the r easonab le doubt standard of proof. See Jackson v. Virgini a , 443 U.S. 3 07, 319, 99S. Ct. 2781, 2789 (1979 ); In re W inship , 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (197 0). Th e Due Pro cess Clau se of the Fourtee nth Amendmen

t protec ts a defendant in a criminal case ag ainst conviction "except upon proof beyond
a reasonable doubt of every fact necessary

to constitute the crime with which he is charged." See In
re Winsh ip , 397 U.S. a

t 364, 90 S. Ct . at 1073; Jackson , 443 U.S. at 316, 99 S. Ct. at 2787. The relevant question u

pon revie w of a cr iminal con

viction, b e it

the trial cou

rt or an a ppellate court, is whether, "after viewing the evidenc e in the light most favorable to the prosecution, any rational trie r of fact couldhave found the essentialelements of the crime beyond a reaso nable doubt ." Jackson , 443 U.S. at 317, 31 9, 99 S. Ct. a t 2788-89; see also

Tenn. R. App. P. 13(e); Tenn. R. Crim. P. 29(a); State v. Burns , 6 S.W.3d 453, 469 (Tenn. 1999) (holding the trial court must determine if the evidence viewed liberally in the lig ht most favorable to the existence of the le sser inc luded off ense is legally suff

icient to support a conviction for the lesser included offense). 2

Relevan t to this ca se, an of

fense isa lesser

included offense if: (a) all of its s tatutory

elementsare inc luded wit hin t he statutory eleme

nts of the offense charged; or (b) it fails to meet

the defi nit ion in par

t (a) only in the re spect tha

t it contains a statu tory elem ent or eleme nts es tabli shin g: (1) a different mental state indica ting a l es se r k in d o f c ul pa bi li ty; and/or (2) a less serious harm or

risk of harm to the same person, property or public interest; or (c) it consists of-8- (1) facilitation of the offense charg ed. . . .

Burns , 6 S.W.3d at 466-67. Whether a lesser included offense must be charg ed in a jury instruction is a two-part inquiry. Id. at 467. Fir st, the trial court must apply the Burns test to determine whether
a particular

lesser off

ense is included in the greater cha rged offense. Id. If a lesser off ense is not include d in the off

ense charged, then an instruction should not be given, regardless of whether evidence supports it. Id. If, however, the tr ial court con clu des that a lesser o ffense

is include d in the charged offense, the que stion remains whether the evidence justifies a jury instruction on such lesser offense. Id.

To convict a defendant for facilitation of possession of marijuana with intent to deliver, the State must p

rove: (1) that the d

efenda nt knew tha t another

person in

tended to commit the

specific felony of possession of mar ijuana with inten

t to deliver, but did not have the intent to promote or assist the commission of the offense or to benefit in the proceed s o r results of the offense; and
(2) that the defendant furnished substantial assistance to that person in th e commission of the felony; and (3) that the defendant furnished such assistance knowingly.

T.P .I.- -Crim. 3.02 (7 th ed. 2000) ; see also Tenn. Code Ann. § 39-11-403 (1997). Facilitation b y definition require s c rimina l culpability of a person other than that of the facilitator. At trial, the convicting evidence implicates only the Appellant. As such, we find no proof to support the three elementsof the offense. Specific ally , the rec ord is devoid of any proof tha t the Appe llant know ingly providedsubstantially assistance to Jefferson in the commission of the offense or that the Appellant knew that Jefferson intended to commit possession of marijuana with intent to deliver. In this case, the Appellant was the sole person indicted for the offense. The proof adduced at trial showed that the Appellant went inside an apartment complex with Jefferson. The Appellant exited the building several minutes before Jefferson, and Jefferson exited carry ing the brown paper

bag containing the marijuana. There was no evidence that the Appellant knew Jefferson intended to g et marijuana from inside the resid

ence or th at the Appellant knew the substance inside the bag wa s marijuana. The Appellant’s mere presenc e in the car and the a partmen t complex is n ot enoug

h to constitute substantial assistance in the commission of the felony . Furthermore, the statement s made by the Appellant claiming sole owne

rship of the marijuana are in contradiction to a charg e of facilitation. Finding the proof

at t rial insufficient to support the essential elements of the crime of facilitation bey ond a rea sonable d oubt, we f

ind, in ac cord wit

h Jacks on v. Virginia, that the Appellant’s due proces s rights wer e violated. See Tenn. R. App. P. 13(e). As a general rule , appella te review i s limited to i ssues tha t are pr operly present ed for r evie w before this cour

t.-9-

Notwi thst andin g, the Rules of Crimina l Procedu re and th e Rules of Appellat e Proc edur

e rec ogni ze that an appellate court may

consider issues not presented for review if they

rise to the level of

“plain error.” See Tenn. R. App. P. 13(b); Tenn. R. Crim. P. 52(b). These matters lie within the sound discretion of the appellate court and may be a

ddressed to prevent

needless litigation, prevent injury to the inter

ests of the public, pr

event pr ejudice to the judic ial proc ess, prevent manifest injustice, or to do substantial justice. State v. Adkisson , 899 S.W.2d 626, 638-39 (Tenn. Crim. App. 1994). As such, we are

constra ined to note “pla

in error ” by the trial court in s ubmitting

to the jury

the offe nse of facilitating the posse ssion of ma rijuana . Accor

dingly , the Appe

llant’s c onviction

is reversed and remanded for a new trial upon the lesser of fense of simple possession.
CONCLUSION

Base d upon t he foregoing , we conc lude that the Appellant doe s not have standing to challenge the traffic stop and subseque nt search of thevehicle . Howeve r, beca use the evide

nce is insufficient

to support an instruction to the jury of t he lesser included offense of fac ilitation of possession of mariju ana with intent to deliver, the Appellant’s convictionis reversed and remanded for a new trial upon the lesser offense of class A simple possession of marijuana.

___________________________________ DAVID G. HAYES, JUDGE