          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON              FILED
                          DECEMB ER SESSION, 1998           March 15, 1999

                                                          Cecil Crowson, Jr.
                                                          Appellate C ourt Clerk

STATE OF TENNESSEE,                 )   C.C.A. NO. 02C01-9803-CC-00071
                                    )
            Appellee,               )
                                    )   TIPTON COUNTY
V.                                  )
                                    )
JOSE PH LE ROY S ULLIVAN            )   HON. JOSEPH H. WALKER, JUDGE
and VICTORIA ALICIA TERAN,          )
                                    )
            Appellants.             )   (POSSE SSION OF CO CAINE)



FOR THE APPELLANTS:                      FOR THE APPELLEE:

MELANIE E. TAYLOR                        JOHN KNOX WALKUP
50 North Front State., Ste. 780          Attorney General & Reporter
Memphis, TN 38103
                                         ELIZABE TH T. RY AN
                                         Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenu e North
                                         Nashville, TN 37243

                                         ELIZABETH T. RICE
                                         District Attorn ey Ge neral

                                         JAME S WAL TER FREE LAND , JR.
                                         Assistant District Attorney General
                                         302 M arket Stre et
                                         Somerville, TN 38068




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

         The Defendants, Joseph Leroy Sullivan and Victoria Alicia Teran, appeal as

of right their convictions following a jury trial in the Tipton County Circuit Court.

Sullivan was fo und g uilty of possession with intent to deliver .5 grams or more of

cocaine, possession of drug paraphernalia, and possession of a prohibited weapon.

Teran was convicted of possession with intent to deliver .5 grams or more of cocaine

and possession of drug paraphernalia. The jury fined each Defendant $25,000.00

for the possession with intent to deliver more than .5 grams of cocaine and

$2,500.00 for possession of drug paraphernalia. Sullivan was fined an additional

$3,000.00 for the conviction of po ssession of a prohibited wea pon. The trial court

subs eque ntly senten ced Su llivan as Ra nge I Sta ndard O ffender to eight (8) years

and six (6) months for the possession with intent to deliver, eleven (11) months,

twenty-nine (29) days for the possession of drug paraphernalia, and one (1) year for

the possession of the prohibited weapon. Teran was sentenced as a Range I

Standard Offender to eight (8) years for the possession with intent to deliver and

eleven (11) months, twenty-nine (29) days for the possession of drug paraphernalia.

Teran was gra nted su spens ion of her s entenc e after serving six (6) months.      For

each Defendant, all sentences were ordered to run concurrently. In this appe al,

Defen dants argue that the evidence was insufficient to support any of the

convictions. After a careful review of the record, we affirm the judgment of the trial

court.



         The facts p resen ted at tria l revea l that on March 7, 1997, officers from the

Tipton County Sheriff’s department, along with Detective Tarwater of the Shelby



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Coun ty Sher iff’s Department, obtained a search warrant for the residence of Joseph

Leroy Sullivan. Upon entering Sullivan’s mobile home, the officers encountered

Teran comin g from th e back bedroo m. After she had been secured, Sergeant Dan

Jones continued the search of the house for both drugs and Sullivan. Sergeant

Jones went into the master bedroom where he noticed several guns within arms

reach of the bed, including a sawed-off shotgun.              The barrel length was later

determined to be eight and one quarter inches. Sergeant Jones also noticed a

Crown Royal bag on the floor with a white powdery substance inside. This white

substance in the bag was later id entified as being .7 gram s of co caine . The fo rensic

scientist who tested the white substance testified that she also found a white plastic

straw in the Crow n Roya l bag con taining the cocaine . Sergeant Jones further found

a “used sy ringe” in the bathroo m. No forensic te sts were conducted on the straw or

syringe. Sergeant Jones also located a writing tablet in the living room which he and

the other officers believed contained records of drug transactions and money owed

to Sullivan and/or Teran. As the officer took the tablet and began to read its

contents, Teran tried to grab it, telling the officer not to take it because it contained

her personal notes.



       Sullivan was spotted in a soybean field across from the house about an hour

after the sear ch beg an, and he was then bro ught back to his home. After being

Mirandized, Sullivan aske d narc otics inv estiga tor Ra ndall Robbins what the officers

were doing at h is hom e. The o fficer explain ed that they were executing a search

warran t, he told Sullivan wh at they had foun d, and inform ed him that he would be

arrested. Sullivan be gan to q uestion th e officer ab out wha t would ha ppen to Teran.

W hen th e office r told Su llivan tha t Tera n wou ld likely b e arres ted too , Sulliva n told

the officer that all of the con traband was his a nd that T eran ha d nothing to do with

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it. According to Investigator Robbins, neither Defendant indicated that he or she had

any me dical prob lems.



                              Sufficiency of the Evidence



       When an accused challenges the sufficiency of the convicting evidence, the

standard is whether, after reviewing the evidence in the light most favora ble to the

prosection, any rational trier of fact could have found the esse ntial elem ents of the

crime beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979).

This standard is applicable to findings of guilt predicated upon direct evidence,

circumstantial evidence or a combination of direct and circumstantial evidence.

State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the

State is entitle d to the strong est leg itimate view of th e evide nce a nd all in ferences

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a

verdict of guilt removes the presumption of innocence and replaces it with a

presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the

evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.

Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639

S.W.2d 913, 914 (Tenn . 1982)); State v. Grace, 493 S.W.2d 474, 476 (T enn. 1973 ).



       Questions concerning the credibility of the witnesses, the weight and valu e to

be given the evidence, as well as all factual issues raised by the evide nce, are

resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623

(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). N or may this cou rt

reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t




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approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts

in favor of the State. Grace, 493 S.W.2d at 476.



       First, Sullivan argues that the evidence is insufficient to support a finding that

he is guilty of pos session of a proh ibited wea pon. See Tenn . Code Ann. § 39-17-

1302. Sergeant Jones found a sawed-off shotgun within arm s reac h of Su llivan’s

bed in Sullivan’s home. The barrel on that gun was measured at eight and a quarter

inches long. The prohibited weapons statute states that a barrel of a shotgun must

be at least 18 inches long. Tenn. Code Ann. § 39-17-1301(11). A gun Defendant

possessed in his own home which was almost ten inches shorter than the shortest

length allowe d is suff icient e vidence to uphold Sullivan’s conviction of possession

of a proh ibited wea pon.



       Second, Sullivan and Teran conte nd that the evidenc e is not su fficient to

support their convic tions for po ssessio n of coca ine with intent to deliver. Tennessee

Code Annotated section 39-17-417(a)(4) provides that it is an offe nse to “possess

a controlled substa nce with intent to manufacture, deliver or sell such controlled

substa nce.” The statute also provides that where the substance is cocaine in an

amount equal to or greater than .5 grams, the offense is a Class B felony. Tenn.

Code Ann. § 39-17-417(c)(1). Defendants were charged with and convicted of the

possession of more than .5 grams of cocaine with intent to deliver. Tests revealed

that the actual amount of cocaine found in the Crown Royal bag was .7 grams.

       Tennessee law allows a jury to infer from the amount of a controlled

substance or substances possessed by an offender, along with other re levant facts

surrounding the arrest, that the controlled substance or substances were possessed

for the purpose of selling or otherwise dispensing the drug. Tenn . Code Ann. §

                                            -5-
39-17-419. In State v. Larry G. H art, C.C.A. No. 02C01-94 06-C C-00 111, H ardin

Coun ty (Tenn. Crim . App., Jackso n, June 28, 19 95) (no Ru le 11 application filed),

the defendant had only one gram of cocaine in his possession, but when that fact

was viewed in light of all the circ umsta nces, this Court fou nd that amount to be

sufficient to sus tain a g uilty verd ict of po sses sion w ith inten t to delive r or sell.

Furthermore, this Court has held that the possess ion of a beep er and $239 .00 in

cash, thoug h not c riminal offenses in and of themselves, when coupled with the

possession of 1.1 gram o f cocaine, was sufficient evidence for the jury to conclude

that a defendant was guilty of possession of cocaine with the intent to deliver. See

State v. Ronald Mitch ell, C.C.A. N o. 02C 01-970 2-CC -00070 , Laude rdale Co unty

(Tenn. Crim. App., Jackson, Sept. 15, 1997) (Rule 11 application denied April 27,

1998). In the instant case, the proof in the record establishes that Defendants had

.7 grams of cocaine in their possession. A “used syringe” was found in the bathroom

and a plas tic straw was fo und in the Crown Royal bag conta ining th e coc aine. W hile

this evidence might infer that the drug was possessed by Defendants for their own

use and not with intent to deliver, the writing tablet that Teran admitted belonged to

her was also admitted into evidence. Investigator Robbins testified that he believed

the tablet contained descriptions of drugs sold, to whom they were sold, and how

much was paid or owed.           A rational trier of fact could have concluded that

Defen dants p ossess ed the co caine w ith the inten t to deliver.



       Although not specifically raised as an issue a t trial or on appe al, we s hould

note that we also find sufficient evidence that both Defendants were in possession

of the cocaine . Possession of a controlled substance may be actual or constructive.

State v. Brown, 915 S.W.2d 3, 7 (Te nn. Crim . App. 19 95); State v. Brown, 823

S.W.2d 576, 579 (Te nn. Crim . App. 19 91); State v. Cooper, 736 S.W.2d 125, 129

                                            -6-
(Tenn. Crim. A pp. 198 7). To constructively possess a drug, that person must have

the power and intention at a given time to exercise dominion and control over the

drugs either d irectly or throug h others . Cooper, 736 S.W .2d at 129 (citation om itted).

Constructive possession is the ability to reduce an object to actual possession.

Brown, 915 S.W .2d at 7; Brown, 823 S.W .2d at 579 (citation om itted). Moreover,

possession may be actual or con structive , either a lone o r jointly with others . State

v. Copeland, 677 S.W.2d 471, 47 6 (Ten n. Crim. A pp.), perm. to appeal denied

(Tenn. 1984).     Having possession of the premises where contraband is found

creates an inference that the possessor had possession of the contraband.

Armstrong v. State, 548 S.W.2d 334, 336 (Tenn. Crim. App. 1976). A pe rson’s mere

presence in the area where drugs are discovered does not show possession, and

neither will associa tion with the one who is in control of drugs . Cooper, 736 S.W.2d

at 129. However, the facts of this case reveal more than m ere pres ence b y both

Defendants. First, Sullivan was the owner of the trailer from which the contraband

was confiscated which creates an inference he possessed the contraband. Sullivan

offered no evidence to rebut this inference .         In fact, after one of the officers

described to him what had been confis cated , he sa id, “W ell, it’s mine. . . . What you

found is mine.” This is certainly enough evidence to show possession by Sullivan.

Second, Teran was apprehended coming out of the back bedroom where the

cocaine was found . One officer te stified th at he s aw wo men ’s clothing strewn about

the trailer. Also, Teran admitted to the officers that the writing tablet containing drug

transactions belong ed to he r. This is sufficient to show constructive possession on

Tera n’s beha lf. The q uestio n of ow nersh ip of drugs is a que stion of fact for the jury.

Based on all the foregoing facts, a rational trier of fact could have reached the

conclusion that both Defendants were in the possession of at least 0.5 grams of

cocaine with the intent to deliver.

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       Third, Defen dants argue that the evidence does not support their convictions

for posse ssion of d rug para pherna lia. See Tenn. Code Ann. § 39-17-42 5. They

contend that the straw and the syringe were n ever te sted to see if they we re actu ally

used to introduce the controlled substance into the body. However, the statute does

not require that the paraphernalia to have actually been used. Tennessee Code

Annotated section 39-17-402(12) provides that “‘[d]rug pa raphe rnalia’ m eans all

equipm ent, produc ts and m aterials of a ny kind w hich are u sed, intended for use, or

designed for use in . . . injecting, ingesting, inhaling or otherwise introducing into the

human body, a controlled substance.” (emphasis added).             A straw found in the

same Crown Royal bag as the cocaine and a syringe found in the adjoining

bathroom are sufficient evide nce for a rational trier o f fact to find bo th Defen dants

guilty of possession of drug paraphernalia pursuant to Tennessee Code Annotated

section 39-17-4 25. We also note that the same possession analysis above applies

here a s well.



       The judgment of the trial court is affirmed.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
JOHN EVERET T WILLIAMS, Judge

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