State v. Brown

• Citation: 823 S.W.2d 576
• Parties: STATE of Tennessee, Appellee, v. Robert E. BROWN, Appellant. 823 S.W.2d 576
• Decision Date: 11 September 1991
• Court: Court of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Page 576

823 S.W.2d 576

STATE of Tennessee, Appellee, v. Robert E. BROWN, Appellant.

823 S.W.2d 576

Court of Criminal Appeals of Tennessee,

at Jackson.

Sept. 11, 1991.

No Permission to Appeal Applied for

to the Supreme Court.

Hughie Ragan, Jackson, for appellant.

Charles W. Burson, Atty. Gen. of Tennessee, Joel W. Perry, Asst. Atty. Gen., Nashville, and Jerry Woodall, Dist. Atty. Gen. and Roger D. Moore, Asst. Dist. Atty. Gen., Jackson, for appellee.

OPINION

TIPTON, Judge.

The defendant, Robert E. Brown, was convicted by a jury in the Circuit Court for Madison County of possession with intent to sell cocaine for which he was sentenced to four years in the workhouse as a Range I, standard offender. He was ordered to pay a five thousand dollar fine. In this appeal as of right, the defendant attacks the sufficiency of the evidence and asserts other errors dealing with the following issues:

(1) Was the state required to elect which cocaine, found in different locations, formed the basis of the offense submitted to the jury?

(2) Was improper evidence of other crimes by the defendant admitted into evidence?

(3) Did trial court statements to defense counsel improperly prejudice the defendant?

(4) Was the defendant entitled to disclosure of the identity of a confidential informant?

(5) Was the defendant entitled to probation or a community corrections sentence?

The defendant was charged in one count with felonious possession of cocaine. The case related to activities occurring in February, 1989, at three buildings located next to each other at the intersection of Harris Street and Boone Street in Jackson, Tennessee. The buildings consisted of a residence at 219 Harris Street, a residence at 141 Boone Street, and a garage or automobile workshop situated between the two residences.

Robert Bond testified that his sister owned the Harris house, but was out of town for several months. He said that no one was living there in February, 1989. Mr. Bond said that he lived elsewhere, but he would go over to the house to meet with a girl, Ms. Chapman. He denied having a key to the place. He testified that he gave the only key for the padlock on the front door to the defendant, who went by the nickname "Son."

Mr. Bond said that the defendant worked at the garage next door and had told Mr. Bond that the key was to allow the defendant to use the bathroom in the Harris house. Mr. Bond said that when he wanted access to the house, he would get the key from the defendant. He denied possessing any cocaine in the house and said that he had not seen the defendant possess, sell or use cocaine. However, he stated that Ms. Chapman had used cocaine in the Harris house, but he did not know its source. He said that one Joe Mays owned both the garage and the house located at 141 Boone Street.

Sergeant Mark Caldwell, Madison County Sheriff's Department, testified about his surveillance of the properties from February 20 through February 22, 1989. He said that he saw cars coming and going and staying a very short period of time at the garage. There were people standing around including the defendant. On the night of February 21, a female confidential informant was equipped with a radio transmitter and sent to the Boone house. Sgt. Caldwell maintained surveillance outside with a receiver. He stated that he heard the informant say "Son" and recognized the defendant's voice. He heard the defendant say "I'll be right back." Then, he saw the defendant leave the Boone house and return shortly thereafter, although he could not see where the defendant had gone. He testified that he "heard" the defendant sell the informant "dope." Sgt. Caldwell stated that the informant then turned cocaine over to him.

On the night of February 22, Sgt. Caldwell and Officer Mike Johnson, Jackson Police Department, conducted surveillance of the three buildings from different vantage points. Sgt. Caldwell saw cars drive up and, each time, the defendant went to the Harris house and returned to the garage. He stated that he, also, saw the defendant urinate by a car outside the garage. At one point, Sgt. Caldwell saw the defendant go to the back door of the Boone house and talk to Joe Mays. The same informant, with transmitter, was sent back to the Boone house. Sgt. Caldwell said that he heard an unidentified voice instruct her. Then, the informant went to the garage, at which point the defendant went back to the Harris house. Sgt. Caldwell stated that the informant returned to him with more cocaine. He testified that the street value of cocaine at that time was one hundred dollars per gram.

Search warrants were obtained for the three buildings and executed that night. At the Harris house, six small plastic bags of cocaine were found in two coats in a closet and two such bags of cocaine were found under loose carpet in the bathroom. These substances totaled 16.8 grams. Another bag, found on the kitchen table, contained 31.5 grams of a white powder which did not contain cocaine. A search of the garage yielded .98 grams of cocaine in a plastic bag on a wall brace which was near the defendant's location when the searches began. A key was found on the defendant which opened the padlock to the Harris house. Also, an unidentified person was arrested in the Boone house for possession of cocaine and drug paraphernalia found on his person.

The defendant called Ms. Chapman, who testified that she used to date Robert Bond and that he stayed at the Harris house. She stated that both Bond and the defendant had keys to the padlock. She said she was not aware of the defendant being involved with cocaine, but Mr. Bond had given her some at the house. She acknowledged that others, not just the defendant, worked in the garage between the two houses. She said Joe Mays lived in the Boone house. Joe Mays' half-brother, Jim Anderson, testified that Mays owned the garage and rented the Boone house. He said he had never seen the defendant in the Boone house.

The defendant testified that he did not use, possess or sell cocaine. He said he had never been in the Boone house until the police took him there the night of his arrest. He stated that he was in the garage watching t.v. at the time of the raid. He admitted having a key to the Harris house, but said the coats in the closet were not his. He said that the previous owner of the house was in jail for cocaine. He explained that he only used the bathroom facilities in the house and denied going to the bathroom outside as claimed by Sgt. Caldwell. Also, he denied having met Sgt. Caldwell before the raid.

In rebuttal, Sgt. Caldwell testified that he had met the defendant twice before, once at the police department and once at another place in serving a search warrant. He said he knew the defendant's voice and recognized it during the transactions with the informant.

When the sufficiency of the evidence is questioned on appeal, the standard of review is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In such regard, the state is entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be drawn from it. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn.1978). Likewise, the determination of the weight and credibility of the testimony of witnesses and reconciliation of conflicts in that testimony are entrusted exclusively to the trier of fact, in this case the jury. State v. Sheffield, 676 S.W.2d 542, 547 (Tenn.1984); Byrge v. State, 575 S.W.2d 292 (Tenn.Crim.App.1978). Thus, this Court cannot reweigh the evidence, but must presume that the conflicts in the evidence were resolved in favor of the state.

Relative to drug possession cases, a conviction may be had upon either actual or constructive possession. State v. Cooper, 736 S.W.2d 125 (Tenn.Crim.App.1987). Cooper contains an excellent summary of what constitutes constructive possession and the method by which the evidence must be viewed in making a determination of constructive possession.

Before a person can be found to constructively possess a drug, it must appear that the person has "the power and intention at a given time to exercise dominion and control over ... [the drugs] either directly or through others." State v. Williams, supra [503 F.2d 50 (6th Cir.1974) ] quoting from United States v. Craig, 522 F.2d 29 (6th Cir.1975). See United States v. Holland, 445 F.2d 701, 703 (D.C.Cir.1971). In other words, "constructive possession is the ability to reduce an object to actual possession." State v. Williams, supra, quoting from United States v. Martinez, 588 F.2d 495 (5th Cir.1979). See Harris v. Blackburn, 646 F.2d 904, 906 (5th Cir.1981). The mere presence of a person in an area where drugs are discovered is not, alone, sufficient to support a finding that the person possessed the drugs. Harris v. Blackburn, 646 F.2d 904, 906 (5th Cir.1981). See Dishman v. State [3 Tenn.Cr.App. 725] 460 S.W.2d 855, 858 (Tenn.Crim.App.1970); Whited v. State, 483 S.W.2d 594 (Tenn.Crim.App.1972). Likewise, mere association with a person who does in fact control the drugs or property where the drugs are discovered is insufficient to support a finding that the person possessed the drugs. Harris v. Blackburn, supra. See Dishman v. State, supra; Whited v. State, supra.

We recognize that a criminal offense may be established exclusively by circumstantial evidence. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958); State v. Hailey, 658 S.W.2d 547, 552 (Tenn.Crim.App.1983). However, before an accused may be convicted of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so strong and cogent as to exclude every other reasonable hypothesis save the guilt of the defendant." State v. Crawford, 225...