### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON July 2000 Session
STATE OF TENNESSEE v. ADAR RYL DEVON BROOKS Appeal from the Circuit Court for Obion County Nos. 8-171 and 8-335 William B. Acree, Judge

No. W1999-00632-CCA-R3-CO - Filed January 9, 2001

Defendant

appealsas of right his jury conviction of possession of 0.5 grams or more of cocaine with intentto sell and criminal impersonation. He raises two issues: (1) that the evidence was insufficient to support a convicti

on for possession o

f a controlled substance with intent to sell; and (2) that the trial court erred in de

nying his mot

ion to suppress his st

atements, and per

mitti ng introd uction of those statements a

t trial. We affirm t

he judgment of the

trial court. T. R. A. P. 3 Appeal as of Right; Judgment of the Circuit Court AFFIRMED.
C ORNEL IA A. C LARK , S P

. J., delivered the opinion of the court, in which D AVID H. W ELLES , J. and A LAN E. G LENN , J., joined.
Steve McEwen an d Joseph P. Atnip, Distr ict Public Defend

er, and Kevin McA

lpin, Assistant District Public Defender

, for the appella

nt, Adarry

l Devon Brooks.
Paul G. Summ ers, A ttorney General, Kim R. Helper, Assistant Attorney General, Thomas A. Thomas, District Attorney General, and James T. Cannon, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
On March 14, 1998, Un

io n City police officers Ka rl Jackson, Lee

Dearmitt, and Ke

vin Griffin were on bicycle pat

rol when they observed a Suburban vehicle driven by a person they believedto be André Goss, who theofficers knew to have outstanding warrants against him. Officer Jackso n approached the driver’s side of the vehicle and identified Goss, whom he knew, as the driver. Defendant

Adarryl Devon Brooks was the front seat passenger in the vehicle. However, he identified himself to

Officer Griff

in as Charlie McBride, Jr. A third male was in the back seat of the vehicle. Other officers on patrol also approached.
Officer Lee Dearmitt asked for

permission to

search the vehic

le, and Goss, who de

nied his ide nti ty, granted permission. Dearmitt found a fully loaded .357 revolver under neath the middle

of1 Only co-defend ant Goss w as charged with possessio n of the mariju ana and the cocaine fo und in the driv er’s

side door po cket. After a separ ate jury trial he was f ound guilty of (1) possession of cocaine wit h intent to sell or deliver, (2) simpl

e possession of

marijuana, and (3) res isti ng arrest. He was a

cquitt ed of the c

harge of u

nlawful possessi on of a weapon.

2 At trial, Officer Griffin was not asked about the process by whi ch he advised defendant of his right against se lfincriminat

ion. He was asked these questions during the earli er suppression hearing.
-2- the front benchseat. Goss and the defendant were

placed under ar

rest. During this

process, Officer Jackson noticed Goss with his hands clenched. He reached for Goss and a struggle ensued. During the struggle a rock of crack cocaine fell out of Goss’s hand. The rock of cocaine totaled

6.8 grams in weight. Additional cocaine was found in the driver’s side door pocket, and marijuana was found in t he as htr ay. 1 The backseat passenger was also initially handcuffe d, but was ultimately released before the other two men were transported to the police station.
At the s t ation, Officer Kevin Griffin was assigned to do the paperwork on the case. The defendant continued to identi

fy himself as Charlie McBride, Jr., and volunteered to give a statement. Officer Griffin testified that he advised defendant of his rights by reading f rom a printed statement form. The defendant then handwrote a statement acknowledging that he had “laid the dope on the seat” but that he was not aware of the existence of a gun. He signed the statement “Charlie McBride, Jr.”. Later he asked t o make a second statement. According to Officer Griffin, he readvised defendant of his rights prior to the making of a second statement 2 . This time, defendant claimed that he had not possessed a

ny drugs, weapons or m oney. He claime d the drugs had belonged to another passenger, who merely as ked him to hold t hem when she got out of the car just before the police arrived. He also signed the statement “Charlie McBride, Jr.”.
Defendant

Brooks was indicted on one count of possession of more than 0.5 grams

of cocaine with intent to sell or deliver, a Class B felony, one count of unlawful possession of a weapon, and
one co unt of cri minal impersonatio n. Because he d

id not appear for

his arraignmen

t, he was also later charged with failure to appear. He filed a motion to suppress the two statements he gave police.
The defendant admitted at thesuppression hearing that he gave both statements, but claimed that he was not

advised of his rights on either occasion. He contended that the officers cu

rsed at him and forced him to sign the statements. He a lso claimed to be intoxicated at t he time of his arre

st. As to the differenc

es between the st

atements, defen

dant testified tha

t at first he thoug

ht he would take the blame, but then he changed his mind. He said that his co-de

fendant, André G

oss told him to use the name Charlie McBride, and also told him that he would be paid for taking the blame for the offense, under this false name. He intended to bond out of jail and then “disappear”.
The trial court de

nied the motion to sup

press. The defe

ndant did not testify

at trial.3 On appeal, defendant does not challenge his conviction for fail ure to appear. -3- The defendant was convicted of possession of more than 0.5 g rams of cocaine

with intent to
se ll, criminal impersonation, and failure to appear. 3 The jury was unable to reac h a unanimou s verdict on the charge o

f unlawful posses si on of a weapo n, and the court entered a judgment of acquittal on that c

ount.
When a defendant challenges the sufficiency of the convict ing eviden ce, the standard is whether, after reviewin

g the evidence in

the light most favor

able to the prosecution, any rational trier of fact could have found the essential elemen

ts of the crime bey

ond a reasonable

doubt. Jackson v. Virginia , 443 U.S. 307, 319, 9 9 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Questions concerning the credibility

of the witnesses, the weight and value to be given the evidence, a s well a s all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluate

the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). A verdict of guilty by the jury, approved by the trial judge, acc

redits the testimon

y of the sta

t e’s witnesses and resolves all conflicts in the testimony in favor of the state. See State v. Cazes , 875 S.W. 2d 253, 259 (Tenn. 1994).
To convict a defen

dant of the Class

B felony of possession of cocainewith intent to sell, the state is required to prove (1) that the defendant knowingly possessed cocaine in excess of 0.5 grams and (2) that the defendant’s possession was for the purpose of sa le. Tenn. Code Ann. §39-17- 419(a)(4) and (c)(1). A conviction may be based

upon either actual or constructive possession. State
v. Brown , 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991). I n State v. Transou , 928 S.W.2d 949, 955-956 (Tenn. Crim. App. 1996) (citations omitted), this court addressed the meaning of the term “possession” in both the context of Tenn. Code Ann. §39-17-417 and Tenn. Code Ann. §39-17-425:
“The term possession . . . embraces both actual and construc tive possess ion . . . before a person can be found to constructively possess a drug, it must appear that the pers on has ‘the power and the intention at a given time to exercise dominion and control o ve r . . . [the drugs] e ither directly or

through others.’ .

. . In other words, ‘constructive possession is the ability to reducean object to actual possession.’ . . . The mere presence

of a person in an a

rea where drug

s are discovere

d is not, alone, sufficient to support a finding that the person possessed the drugs. . . . Likewise , mere associatio

n with the person who doe s in fact control th

e drugs or proper

ty where the drugs are disc

overed is insufficient to support a finding that the person possessed the drugs.”
In the present case, the cocaine in question was ultimately discovered in the possession of the driver of the car, André Goss, after he was asked to step out of the car he was driving

. However, boththe defendant and Goss had been traveling together in the front seat of the vehicle just prior to the time the officers asked to search it. The defendant in his first statement

to police admitted that the c ocaine was his, and that he had placed it on the seat of the car. In his second statement he admitted having the cocaine and placing it on the seat, but claimed it belonged to a passenger who-4-

had left the vehicle before the police arrived. He said that she merely gaveit to him to hold. Thus, whether the defendant

“possessed” the contraband was a question of fact for the jury to determine. See State v. Copeland , 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). We believe that the evidence is sufficient for a

rational trier of

fact to find that the defendant constructively possessed the cocaine. See State v. Boyd , 925 S.W.2d 237, 244 (Tenn. Crim. App. 1995).
Pursuant to Tenn. Code Ann. §39-17-419, inferences may be drawn of possession with intent to sell from the amount

of the controlled substance, along with other relevant facts surrounding the arrest. State v. Maurice Teague , No. 02C01-9806-CC-00187, Carroll County (Tenn. Crim. App., Jackson, February 26, 1999 ). In the case

sub ju dice , the defe ndant in his first statement to police admitted that the drugs in question were his. In his second statement, while he denied that the drugs
were his, it is noteworthy that he also denied that he had any money with him. He apparently was
awarethat possession of

the amount of cocaine in question might raise an inference of sale, and that having a weapon or money in his possession might increase the strength of that inference. See e.g., State v. Steven D. Pittman , No. M1999-00320-CCA-R3-CD, Davidson County (Tenn. Crim. App., Nashville, April 7, 2000). The jury was permitted to consider both the amount of cocaine involved and the other circumstances surrounding the arrest, including the nature of the statements made by defendant. The circumstances may carry as much weight as the quantity possessed in authorizing
a jury to draw the inference of intent to sell a controlled substance. State v. Bledsoe , 626 S.W.2d 468, 469 (Tenn. Crim. App. 1981). The jury could have reas onably concluded

that the defenda

nt, as well as his co-d

efendant, posse

ssed the cocaine

in question with the i

ntent to sell.
Defendant

finally contends that the trial court erred by denying his motion to suppress the two statements he gav

e to the police imme

diately after his

arrest. I n reviewing the trial court’s denial of the motion to suppress, this court is bound by the trial court’s findings of fact u

nless the evidence preponderates otherwise. See State v. Crutcher , 989 S.W.2d 295, 299 (Tenn. 1999) (citing State v. Odom , 928 S.W.2d 18, 22-2 3 (Tenn. 1996)).

Notwithsta

ndi ng, the application of the law to the facts is a que

stion of law whic

h this co urt reviews de novo

. Crutcher , 989 S.W.2d at 299 (citing Sta te v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997)). The defendant bears the burden of demonstrating that

the evidence preponderates against the trial court’s finding. Odom , 928 S.W.2d at 22-23.
The defendant argues that he was subjected to custodial interrogation without having been advised of his Miranda rights. He claims that any statement to an officer as a result of such custodial interrogation was unconstitut io nally obtained, and thus, the statements should not have been admitted at trial.
In Miranda v. Arizona , 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966), the United States Supreme Cour t held that the cons

titutional prohibit

ion against compelled self-incrimination requires police officers, befo

re initiating quest

ioning, to advise an

accused of his right to remain sile

nt and his right to

counsel. Specifically, Miranda requires police to inform the person being questioned th at (a) he has the

right to remain sile

nt; (b) any st

atement made m ay be used as e videnc e against him; and (c) he has the right to the presence of an attorney; and (d) if he-5-

cannot afford an attorney, one will be appointed for him prior to questioning, if he so desires. Id ., 384 U.S. at 444, 86 S.Ct. At 1612.
Officer Griffin testifie

d that he read de

fendant his rights

on two separate o

ccasi ons b efore taking the statements that he gave. He produced documents that contained signed statements onone side and the officer

’s notations about h

is readings of rig

hts on the opposite si

de. The trial court accredited

the officer’s testimony that the defendant was fully advised of and waived his rights prior to any police questioning. We therefore conc lude that the evide

nce does not prep

onderate again

st the trial court’s finding that the defendant effectively und

erstood and waive

d his rights prior to being interviewed by the police. As a result, the trial c

ourt properly den

ied the defenda

nt’s motio n t o suppress his state

ments. This issue is w

ithout merit.
For the reasons se

t forth above, the

judgment of the tria

l court is affirme

d in all respects.

____________________________________ CORNELIA A. CLARK, SPECIAL JUDGE