                                                                                       02/01/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs November 15, 2018

              STATE OF TENNESSEE v. ELVIS LOUIS MARSH

                 Appeal from the Circuit Court for Marshall County
                   No. 16-CR-68       Franklin L. Russell, Judge
                     ___________________________________

                          No. M2017-02360-CCA-R3-CD
                      ___________________________________


The Defendant, Elvis Louis Marsh, was convicted of the sale of less than 0.5 grams of
methamphetamine, delivery of less than 0.5 grams of methamphetamine, conspiracy to
sell or deliver less than 0.5 grams of methamphetamine, possession of 0.5 grams or more
of methamphetamine with the intent to sell or deliver, and possession of drug
paraphernalia. He received an effective sentence of thirty years. On appeal, the
Defendant argues that the evidence presented at trial is insufficient to support his
convictions. Upon reviewing the record and applicable law, we affirm the trial court’s
judgments.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Elvis Louis Marsh.

Herbert H. Slatery III, Attorney General and Reporter; Garrett Ward, Assistant Attorney
General; Robert J. Carter, District Attorney General; and Andrew L. Wright and William
B. Bottoms, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                       OPINION

                      FACTS AND PROCEDURAL HISTORY

       The Defendant’s convictions were the result of a controlled drug transaction and a
subsequent search which uncovered drugs and drug paraphernalia. The Seventeenth
Judicial District Drug Task Force (“Task Force”) utilized a confidential informant, Ms.
Tara Rowe, to arrange a controlled buy from the co-defendant, Ms. Crystal Alexander.
Ms. Rowe contacted Lieutenant Timothy Miller, then Assistant Director of the Task
Force, and informed him that she believed she could purchase methamphetamine from
Ms. Alexander. On September 30, 2015, Ms. Rowe sent a series of text messages to Ms.
Alexander and made arrangements to purchase crystal methamphetamine. They agreed
that Ms. Rowe would go to Ms. Alexander’s house to pick up the methamphetamine that
afternoon. Detective Jose Ramirez, an investigator for the Task Force, drove Ms. Rowe
to Ms. Alexander’s house that day. Detective Ramirez posed as Ms. Rowe’s “sugar
daddy.” This transaction was the first time that Detective Ramirez worked with Ms.
Rowe. Detective Ramirez placed a recording device on Ms. Rowe prior to her entering
Ms. Alexander’s house. The recording device could not transmit the recordings
instantaneously.

      Detective Ramirez waited in the car while Ms. Rowe was inside Ms. Alexander’s
house. While Ms. Rowe was in the house, Detective Ramirez was in contact with other
members of the Task Force, including Lieutenant Miller and Director Timothy Lane.

       Ms. Rowe testified that upon entering Ms. Alexander’s house, she saw the
Defendant sitting on the couch in the living room with methamphetamine and scales on
the couch beside him. Ms. Alexander, her father, and four children were also at the
house. Ms. Rowe testified that the transaction took place between her and the Defendant
in the living room. Ms. Rowe said she paid the Defendant one hundred dollars, using
bills with recorded serial numbers. She testified that the Defendant weighed the
methamphetamine on the scales during the transaction and that she retrieved it from the
couch.

       At trial, the State played a recording of the transaction. On the recording, Ms.
Rowe talked to the Defendant, Ms. Alexander, and Ms. Alexander’s father. Ms. Rowe
and Ms. Alexander discussed selling a couch at the beginning of the transaction. Ms.
Rowe talked about someone having their own scales there. Ms. Rowe and one of the
males on the tape, either the Defendant or Ms. Alexander’s father, discussed trying to
find “nerve pills.” Ms. Alexander told Ms. Rowe that she “put another bag around it
because the other bag is real thin and you don’t want to lose it.” Ms. Rowe then engaged
in small talk about selling a sound system. Ms. Rowe told the Defendant that she had
access to other drugs that she could pick up from the pharmacy that afternoon and that if
he was interested, Ms. Alexander had her number and he could call her. As Ms. Rowe
was leaving she asked, “Are we good?” and the Defendant replied “yeah.”

       After the transaction was completed, Ms. Rowe immediately got back into
Detective Ramirez’s car, where she gave him a clear plastic bag that contained the
methamphetamine she had just purchased. After they drove to a predetermined meeting
                                          -2-
location, Detective Ramirez weighed the methamphetamine, which weighed less than the
one gram that Ms. Rowe thought she had purchased. At the direction of the drug task
force agents, Ms. Rowe called Ms. Alexander’s cell phone to let her know that the
methamphetamine was less than a gram. The State played recordings of three phone calls
made by Ms. Rowe to Ms. Alexander’s cell phone. The Defendant answered the cell
phone each time. During the first call, Ms. Rowe told the Defendant that she weighed the
drugs on her scales and that it only weighed 0.6 grams. She told him that he should
check his scales. Conversation during the second call was again focused on the
Defendant needing to check his scales because Ms. Rowe did not receive a full gram of
drugs. During the final call, Ms. Rowe and the Defendant again discussed the scales, and
Ms. Rowe said that she “deals with” Ms. Alexander and not with him. At 3:08 p.m., Ms.
Rowe sent a text message to Ms. Alexander’s cell phone stating “[I’]m stoned now.” Ms.
Rowe reiterated that she wished to conduct future transactions with Ms. Alexander in a
text message sent at 3:11 p.m. which stated, “And id rather deal with her not u cuz u
always trying to get over on me.”

       On cross-examination, trial counsel spent a great deal of time impeaching Ms.
Rowe’s ability to recollect information as well as her character for truthfulness. Ms.
Rowe admitted she did not remember things “because I do a lot of drugs.” She testified
that she had seizures and bipolar disorder and overdosed twice in 2017. She said that at
no point was she patted down by a female officer prior to or after making the controlled
buy. Each member of the Task Force who testified agreed that on the day of the
controlled buy, Ms. Rowe was lucid and did not appear to be under the influence of any
narcotics or alcohol.

       The members of the Task Force who testified each described the protocol used in
controlled buys. Detective Ramirez testified that he prerecorded the bills by taking a
photograph of the serial numbers on each bill and that he searched Ms. Rowe both before
and after she entered Ms. Alexander’s house. He admitted that he did not do a cavity
search of Ms. Rowe before or after the controlled buy and that there were no female
officers present to conduct the cavity search.

       After the controlled buy, Lieutenant Miller applied for a search warrant. The Task
Force returned to Ms. Alexander’s house several hours later with the search warrant. The
Defendant, Ms. Alexander, Ms. Alexander’s father, and four children were present when
the house was searched. Lieutenant Miller testified that Ms. Alexander was in the master
bedroom during the search. The Task Force found 1.18 grams of methamphetamine,
$807 in cash, pipes used to smoke methamphetamine, a small amount of marijuana, and
unknown crushed pills in two Crown Royal bags in the master bedroom. Four of the
prerecorded $20 bills used by Ms. Rowe in the earlier transaction were found on the bed,

                                          -3-
and one was found on the floor of the bedroom. The only contraband found outside the
master bedroom was a set of electronic scales found on the couch in the living room.

       Lieutenant Miller testified that after the search, he spoke with the Defendant and
Ms. Alexander about where they purchased the methamphetamine. According to
Lieutenant Miller, the Defendant and Ms. Alexander would meet a man named Jeff to
purchase approximately three-and-a-half grams of methamphetamine multiple times a
week. Lieutenant Miller claimed that both the Defendant and Ms. Alexander “admitted
that they had about five or 10 regular customers that came to them. That Crystal sold to
some of them, and Elvis sold to some of them[.]” Director Lane testified that in Ms.
Alexander’s statement she stated that “on the majority of the sales, that Elvis would be
the person that would actually make the sale happen.”

       Special Agent Cassandra Franklin-Beavers with the Tennessee Bureau of
Investigation (“TBI”) testified that the substances seized from Ms. Alexander’s house
tested positive for methamphetamine. She testified that the methamphetamine purchased
by Ms. Rowe weighed 0.34 grams and that the methamphetamine found in Ms.
Alexander’s master bedroom weighed 1.18 grams.

       Ms. Alexander testified on behalf of the Defendant. The Defendant is the father of
Ms. Alexander’s two children. She said the Defendant would come to her house three
times a week to care for their children while she was at work. Ms. Alexander testified
that on September 30, 2015, Ms. Rowe came to her house to purchase methamphetamine.
The transaction took place in Ms. Alexander’s living room. She claimed that after Ms.
Rowe paid the Defendant, he gave Ms. Alexander the money. Ms. Alexander then placed
the money into a Crown Royal bag.

        When officers returned a few hours later, Ms. Alexander was in her bedroom. She
testified that the methamphetamine, marijuana, money, and pipes found during the search
of the bedroom belonged to her. After law enforcement searched Ms. Alexander’s house,
she gave a statement to the officers. She admitted to law enforcement that she and the
Defendant sold methamphetamine together approximately ten times per week. On cross-
examination, Ms. Alexander admitted that the Defendant had been in the master bedroom
earlier that day.

        The jury found the Defendant guilty of the sale of less than 0.5 grams of
methamphetamine, delivery of less than 0.5 grams of methamphetamine, conspiracy to
sell or deliver less than 0.5 grams of methamphetamine; possession of 0.5 grams or more
of methamphetamine with the intent to sell or deliver; and possession of drug
paraphernalia. The trial court merged the sale, delivery, and conspiracy convictions and
imposed an effective sentence of thirty years to be served in confinement. The Defendant
                                          -4-
filed a motion for a new trial arguing that the evidence presented at trial was insufficient
to sustain each of his convictions. The trial court denied the motion, finding that, “[t]he
evidence was not only sufficient, but frankly pretty overwhelming, when taken as a
whole.” This appeal follows.

                                       ANALYSIS

       The Defendant maintains that the evidence presented at trial was insufficient to
support each of his convictions. Specifically, he asserts that his presence at Ms.
Alexander’s house during the transaction and the search is insufficient to establish that he
participated in the transaction with Ms. Rowe or that he possessed any of the drugs and
paraphernalia found during the search.

        The standard for appellate review in determining the sufficiency of the evidence is
“‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have the essential elements of the crime beyond a reasonable
doubt.’” State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). A defendant “must demonstrate that no reasonable trier of
fact could have found the essential elements of the offense beyond a reasonable doubt” in
order to obtain relief on a claim for insufficient evidence. State v. Perrier, 536 S.W.3d
388, 408 (Tenn. 2017). Further, because a jury conviction removes a defendant’s
presumption of innocence and “replaces it with one of guilt at the appellate level, the
burden of proof shifts from the State to the convicted defendant,” who must demonstrate
that the evidence is insufficient support the jury’s verdict. Id.

        A conviction can be supported exclusively by circumstantial evidence. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). “‘Circumstantial evidence … is
intrinsically no different from testimonial evidence.’” Id. (quoting Holland v. United
States, 348 U.S. 121, 140 (1954)). Whether the evidence is direct or circumstantial, “‘a
jury is asked to weigh the chances that the evidence correctly points to guilt against the
possibility of inaccuracy or ambiguous interference.’” Id. (quoting Holland, 348 U.S. at
140). The jury determines the weight given to circumstantial evidence. Id. (citing State
v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

       This court “will not substitute our own inferences drawn from the evidence for
those drawn by the jury, nor will we reweigh or re-evaluate the evidence.” Perrier, 536
S.W.3d at 408 (citing Dorantes, 331 S.W.3d at 379). “‘The credibility of witnesses, the
weight to be given their testimony, and the reconciliation of conflicts in the proof are
matters entrusted to the jury as the trier of fact.’” Dorantes, 331 S.W.3d at 379 (quoting
State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)).

                                           -5-
                   A. Sale and Delivery of a Controlled Substance

        The jury convicted the Defendant for the sale and delivery of less than 0.5 grams
of methamphetamine, a Schedule II controlled substance, for selling Ms. Rowe 0.34
grams of methamphetamine in violation of Tennessee Code Annotated section 39-17-
417(a). Tennessee Code Annotated section 39-17-417 states: “(a) It is an offense for a
defendant to knowingly: (1) Manufacture a controlled substance; (2) Deliver a controlled
substance; (3) Sell a controlled substance; or (4) Possess a controlled substance with the
intent to manufacture, deliver or sell the controlled substance.” Methamphetamine is a
Schedule II controlled substance. T.C.A. § 39-17-408. A sale occurs when there is a
bargained-for offer and acceptance and an actual or constructive transfer or delivery of
the controlled substance. See State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App.
2002). Delivery of a controlled substance occurs when there is either an actual,
constructive, or attempted transfer from one person to another of a controlled substance.
T.C.A. § 39-17-402(6). It is a Class C felony to deliver or sell less than 0.5 grams of a
Schedule II controlled substance. See T.C.A. 39-17-417(c)(2)(A).

       The Defendant argues that the State failed to meet its burden and relies on Ms.
Rowe’s testimony that she picked up the methamphetamine off of the couch herself. The
evidence presented at trial established that Ms. Rowe and the Defendant engaged in a
transaction where she paid him one hundred dollars in exchange for methamphetamine.
Although the Defendant argues on appeal that Ms. Rowe’s testimony is not credible, her
testimony and determinations of her credibility are issues to be considered by the jury.
See State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014) (concluding that the trier of fact is
entrusted with determinations concerning witness credibility, factual findings, and the
weight given to evidence). “This Court affords the State the strongest legitimate view of
the evidence presented at trial and the reasonable and legitimate inferences that may be
drawn from the evidence.” State v. Wagner, 382 SW.3d 289, 297 (Tenn. 2012). Based
on the evidence presented at trial, we conclude that there was adequate evidence to prove
that the Defendant engaged in a sale of methamphetamine with Ms. Rowe and that he
delivered the methamphetamine to her.

                     B. Conspiracy to Sell a Controlled Substance

      The Defendant maintains that the evidence was insufficient to support his
conviction of conspiracy to sell methamphetamine. As it relates to this case, Tennessee
Code Annotated section 39-12-103 provides:

      (a) The offense of conspiracy is committed if two (2) or more people, each
      having the culpable mental state required for the offense that is the object of
      the conspiracy, and each acting for the purpose of promoting or facilitating
                                           -6-
       commission of an offense, agree that one (1) or more of them will engage
       in conduct that constitutes the offense.

       ….

       (c) If a person conspires to commit a number of offenses, the person is
       guilty of only one (1) conspiracy, so long as the multiple offenses are the
       object of the same agreement or continuous conspiratorial relationship.

       (d) No person may be convicted of conspiracy to commit an offense, unless
       an overt act in pursuance of the conspiracy is alleged and proved to have
       been done by the person or by another with whom the person conspired.

A conspiracy can be shown by a “‘mutual implied understanding’” between the parties.
State v. Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993) (quoting Randolph v.
State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978)). The State is not required to prove
that the parties had an official agreement, and the agreement may be established by
circumstantial evidence. Id. “Conspiracy connotes harmonization of design, not coequal
participation in the minutia of every criminal offense.” State v. William Henry Smith, Jr.,
No. M2016-01475-CCA-R3-CD, 2017 WL 127863, at *6 (Tenn. Crim. App. Jan. 13,
2017) (citing Shropshire, 874 S.W.2d at 641).

        The Defendant argues that he was merely present at Ms. Alexander’s house when
the transaction occurred. He points out that Ms. Rowe sent text messages to Ms.
Alexander’s cell phone and did not communicate with him about the transaction prior to
its occurrence. The State responds by arguing that Ms. Alexander stated to law
enforcement that she would arrange the sales, but the Defendant would ordinarily handle
the actual transaction and that this is sufficient to show a conspiracy existed. There is an
abundance of evidence establishing that the Defendant was engaged in a conspiracy with
Ms. Alexander to sell methamphetamine to Ms. Rowe. This evidence includes the
recorded phone calls between the Defendant and Ms. Rowe during which the Defendant
and Ms. Rowe discussed the weight of the methamphetamine that she just purchased
from him, Ms. Rowe’s testimony that he weighed the methamphetamine, and Ms.
Alexander’s statement to police that she and the Defendant often sold methamphetamine
at least ten times a week.

       The jury could reasonably find that the Defendant satisfied the overt act
requirement when he weighed the methamphetamine, received the money, and gave the
money to Ms. Alexander. In this case, the evidence viewed in a light most favorable to
the State establishes that the Defendant conspired with Ms. Alexander to sell Ms. Rowe
methamphetamine.
                                           -7-
     C. Possession of Schedule II Controlled Substance and Drug Paraphernalia

       In order to prove possession of a controlled substance, the State was required to
prove at trial that the Defendant knowingly “[p]ossess[ed] a controlled substance with the
intent to manufacture, deliver or sell the controlled substance.” T.C.A. § 39-17-
417(a)(4). On appeal, the Defendant argues that he did not have actual or constructive
possession of the methamphetamine found during the Task Force’s search of Ms.
Alexander’s house, and, thus, there was not sufficient evidence to support his conviction.
Specifically, the Defendant asserts that “his mere association and presence in the co-
defendant’s living room was not adequate proof that he had knowledge of the contraband
in the co-defendant’s master bedroom or that he participated in any arranged drug buy
between the co-defendant and the Confidential Informant.” See State v. Cooper, 736
S.W.2d 125, 129 (Tenn. Crim. App. 1991) (“[M]ere 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.”).

       A conviction for possession of a controlled substance may be based on either
actual or constructive possession. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).
However, before a defendant can be found to constructively possess contraband, it must
appear that he had the “power and intention at any given time to exercise dominion and
control over the drugs either directly or through others.” State v. Bigsby, 40 S.W.3d 87,
90 (Tenn. Crim. App. 2000).

       The evidence presented at trial established that the Defendant was not merely
present in Ms. Alexander’s house. Although the methamphetamine weighing over 0.5
grams was found in Ms. Alexander’s bedroom, the Defendant had access to the bedroom,
and Ms. Alexander acknowledged that the Defendant had been in her bedroom on the day
of the offenses. Further, the jury could infer that the Defendant had the ability to exercise
control over the contraband found in Ms. Alexander’s bedroom based on the transaction
with Ms. Rowe that took place mere hours earlier in which he had possession of the
methamphetamine, placed an amount of it onto his scales, weighed it, and accepted Ms.
Rowe’s money in exchange for it. Although Ms. Alexander testified that the
methamphetamine found in the bedroom belonged to her and not the Defendant, the jury
is not obligated to accept her testimony. However, Ms. Alexander also gave a statement
that she and the Defendant regularly participated in drug transactions. The jury is “‘the
primary instrumentality of justice to determine the weight and credibility to be given to
the testimony of witnesses.’” State v. Matthew Reynolds, No. M2017-00169-CCA-R3-
CD, 2018 WL 6253829, at *7 (Tenn. Crim. App. Nov. 28, 2018) (quoting Bolin v. State,
405 S.W. 768, 771 (Tenn. 1966)). Accordingly, the evidence was sufficient to show that
the Defendant had constructive possession of the methamphetamine located in the
bedroom.
                                            -8-
       We also conclude that the evidence presented at trial was sufficient to support the
Defendant’s conviction for possession of drug paraphernalia. The State was required to
prove that: (1) the Defendant possessed an object; (2) that object was classified as drug
paraphernalia; and (3) that the Defendant intended to use that object for an illicit purpose.
T.C.A. § 39-17-425(a)(1); see also State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001).
Here, the evidence presented at trial showed that the Defendant had constructive
possession of the scales in the living room and the pipes found in the bedroom. The
testimony from both Ms. Alexander and Ms. Rowe confirmed that the Defendant had
control over the scales. He used the scales to weigh the methamphetamine that he sold to
Ms. Rowe. The Defendant also had constructive possession of the pipes found in the
bedroom for the same reasons articulated above. The scales were being used for an illicit
purpose, weighing methamphetamine prior to selling it. Accordingly, we conclude that
the evidence presented at trial was sufficient to support all of the Defendant’s
convictions.

                                     CONCLUSION

       Based on the foregoing, we affirm the judgments of the trial court.




                                     ___________________________________________
                                     JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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