         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs January 10, 2006

                 STATE OF TENNESSEE v. JOHNNY E. PORTER


                  Direct Appeal from the Circuit Court for Hardin County
                          No. 8392    C. Creed McGinley, Judge



                  No. W2005-01389-CCA-R3-CD - Filed February 15, 2006


The defendant, Johnny E. Porter, was convicted of possession of over .5 grams of a Schedule II
controlled substance (cocaine) with intent to sell, a Class B felony, and possession of marijuana, a
Class A misdemeanor. He received concurrent sentences of nine years and eleven months, twenty-
nine days on the charges, respectively. On appeal, the defendant contests the sufficiency of the
evidence and contends that the trial court erred in enhancing his sentence on Count One from eight
years to nine years based solely upon his prior criminal record. Upon review, we affirm the
conviction and sentence.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.

Guy T. Wilkinson, District Public Defender, and Richard W. DeBerry, Assistant Public Defender,
for the appellant, Johnny E. Porter.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Robert G. Radford, District Attorney General; and John W. Overton, Jr., Chief Deputy District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        At trial, Brian Rich testified that he was employed with the Savannah Police Department in
August 2004, and was on patrol at the Savannah Motel when he noticed someone jump behind a
fence in an attempt to hide from him. Upon his request, a woman identified as Jennifer Arnold
emerged from behind the fence and told him that she was staying in room thirty-two of the motel.
Officer Rich and accompanying deputy Charles White received Arnold’s permission to approach the
room and confirm the veracity of her statement.
       As the door opened, the officers detected a strong odor of marijuana and obtained Arnold’s
permission to conduct a consensual search of the room. When the defendant opened the door,
Jonathan and Crystal Bennett were sitting on the bed, and a fourth individual, eventually identified
as Bernard Wallace, was in the bathroom. Officer Rich noticed drug paraphernalia (brillo pads and
a crack pipe) in plain view on top of the television and discovered bags of what he believed to be
marijuana and crack cocaine behind the cushions of the couch.

        Because no one claimed ownership of the substances, all five individuals were arrested, and
the seized contraband was sent to the Tennessee Bureau of Investigation (TBI) crime lab for
identification and to be weighed. As the subjects were being transported to the jail, Officer Rich
learned from the manager of the motel that the room was actually reserved by Ashley Morris, who
was not found in the room at the time of the search. On cross-examination, Officer Rich
acknowledged that the defendant was not found to have any drugs or a significant amount of money
on his person and did not attempt to flee. Deputy White testified on cross-examination that there
was evidence of consumption in the room, including the pipes which were found in plain view.

        Jennifer Arnold testified that she went to the motel, upon invitation from Bernard Wallace,
to smoke marijuana and crack cocaine. When she arrived, Ashley Morris and the defendant were
present. Wallace arrived shortly thereafter. Sometime later, Ashley Morris left and Crystal and
Jonathan Bennett arrived. Arnold testified that Wallace gave the defendant an $80 rock of crack
cocaine to sell but that the defendant returned without the money or the drugs. She further stated that
she went outside to deliver a $70 rock of crack cocaine but did not complete the transaction because
Officer Rich approached her and she threw the rock away. Upon questioning by Officer Rich, she
advised him that she was staying in room thirty-two and was outside to get “a breath of fresh air.”
Arnold stated that she assumed Wallace brought the drugs to the motel room.

       On cross-examination, Arnold testified that she arrived at the motel between 10:00 and 10:30
p.m. and was high on crack cocaine by the time the other individuals arrived. Arnold reiterated that
Wallace handed the defendant what she believed was an $80 rock of crack cocaine, which the
defendant put in his pocket before leaving with Crystal Bennett. She stated that when the defendant
came back without the drugs or money, he and Wallace “had words back and forth” regarding the
incident, but the defendant had no explanation for Wallace. She testified that the only transaction
she attempted to make failed because the police arrived. On redirect examination, Arnold
acknowledged a prior intimate relationship with Wallace but indicated that her testimony related “the
way that it happened.”

        Ashley Morris testified that she reserved room thirty-two at the Savannah Motel “mostly to
get high.” She stated that she and Wallace, who provided the cocaine, were later joined by the
defendant and Arnold. Morris recalled that Ricky Hutton picked her up from the motel and drove
her home before the police arrived. On cross-examination, she stated that she rented two rooms on
the day of the incident, the first with the defendant, and the second for Wallace. She reiterated that
Wallace was the only person that she saw bring drugs into the motel.



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        Crystal Bennett testified that she and her husband, Jonathan, had been at the Savannah Motel
approximately forty-five minutes when the police arrived. She stated that the defendant brought a
rock of crack cocaine to their home earlier in the day and invited them to a party at the motel that
night. Bennett recalled that she used cocaine while at the motel and that she left with the defendant
sometime during the evening to purchase cigarettes. She further stated that she drove the defendant
to a house behind the jail at his request before returning to the motel. When the defendant came
back to the motel sometime later, he spoke with Wallace who “wasn’t very happy with [the
defendant].” Thereafter, Arnold left the room to deliver drugs to someone outside, and “[a] few
minutes later, the law showed up.” Bennett stated that the defendant announced that the police were
outside and that Wallace subsequently flushed the cocaine down the toilet before the police
conducted a search of the room.

       Jessica Webb testified that she is employed by the TBI as a forensic scientist. She stated that,
upon analysis, she determined the substances submitted in the present case consisted of thirty-one
grams of marijuana and 8.9 grams of cocaine base. She particularly noted that the amount of cocaine
seized was “probably greater than normal.”

        As the final witness at trial, the defendant testified that he went to the Savannah Motel
between 2:00 and 2:30 p.m. to talk to Bernard Wallace about “[going] somewhere and getting high.”
He stated that he used drugs at the motel but was not there to deliver drugs or purchase drugs to
resell. The defendant recalled that he invited Crystal and Jonathan Bennett to the party earlier that
day and that he gave Jonathan Bennett a small rock of crack cocaine at that time. He stated that
Crystal Bennett drove him across town so that he could tell an individual he identified as Nebo that
he did not have any drugs to sell. He further indicated that he did not use or deliver any drugs while
at Nebo’s house. The defendant explained that Wallace handed him drugs in jest before he left but
that he immediately returned them to him.

        On cross-examination, the defendant testified that he used both marijuana and crack cocaine
in the motel room. The defendant acknowledged that he gave a rock of crack cocaine to Jonathan
Bennett but stated that he was not paid for the drugs and that Wallace did not send him there. On
redirect examination, the defendant testified that he did not go to the Bennett residence with the
intention of selling drugs or delivering drugs to sell. He further reiterated that he went to Nebo’s
house to tell them that he did not sell drugs and to tell them to stop calling him.

                                            I. Sufficiency

        When an accused challenges the sufficiency of the evidence, this court must review the
record to determine if the evidence adduced during the trial was sufficient “to support the finding
by the trier of fact of guilt beyond a reasonable doubt.” Tenn. R. App. P. 13(e). This rule is
applicable to findings of guilt predicated upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Brewer, 932 S.W.2d 1, 18 (Tenn. Crim.
App. 1996).



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       In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Nor may this court substitute its
inferences for those drawn by the trier of fact from circumstantial evidence. Liakas v. State, 286
S.W.2d 856, 859 (Tenn. 1956). To the contrary, this court is required to afford the State the
strongest legitimate view of the evidence contained in the record as well as all reasonable and
legitimate inferences which may be drawn from the evidence. State v. Elkins, 102 S.W.3d 578, 581
(Tenn. 2003).

        The trier of fact, not this court, resolves questions concerning the credibility of the witnesses,
the weight and value to be given the evidence, as well as all factual issues raised by the evidence.
Id. In State v. Grace, the Tennessee Supreme Court stated that “[a] guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).

        Because a verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, the accused has the burden in this court of illustrating why the evidence is
insufficient to support the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982); Grace, 493 S.W.2d at 476.

        The conviction offenses require proof that the defendant knowingly possessed over .5 grams
of cocaine with intent to sell it and that he knowingly possessed marijuana. See T.C.A. §§ 39-17-
417(a)(4) -(c)(1); 39-17-418(a). Possession may be actual or constructive. State v. Shaw, 37 S.W.3d
900, 903 (Tenn. 2001). To prove constructive possession, the State must establish the defendant had
the power and intention at a given time to exercise dominion and control over the drugs either
directly or through others. Id. at 903; see also State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim.
App. 1997).

        Presence in the area of the drugs or association with those possessing drugs, alone, is not
sufficient to establish constructive possession. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim.
App. 1987). Further, pursuant to Tennessee Code Annotated section 39-17-419, “[i]t may be
inferred from the amount of a controlled substance or substances possessed by an offender, along
with other relevant facts surrounding the arrest, that the controlled substance or substances were
possessed with the purpose of selling or otherwise dispensing.”

         On appeal, the defendant particularly contends that Arnold’s testimony was insufficient due
to her lack of credibility. However, as we have noted, the credibility of witnesses is to be determined
by the trier of fact and not this court. Taken in a light most favorable to the State, the evidence
established that Wallace gave the defendant an $80 rock of crack cocaine to sell; that the defendant
left with Crystal Bennett; and that Wallace was upset when the defendant returned without the drugs
or money. Furthermore, it was undisputed that the seized contraband included 8.9 grams of cocaine
base. In our view, the testimony of Arnold and Bennett, taken together with the amount of cocaine
seized, was sufficient to convict the defendant of knowingly possessing more than .5 grams of
cocaine with intent to sell.


                                                   -4-
       We likewise conclude that sufficient evidence existed to convict the defendant of simple
possession of marijuana. Officer Rich and Deputy White indicated that a strong odor of marijuana
emanated from the room occupied by the defendant, and Jessica Webb testified that thirty-one grams
of marijuana were seized upon the consensual search. Moreover, the defendant admitted to using
marijuana while in the room, thereby exercising direct control over it. For these reasons, we affirm
the convictions.

                                           II. Sentencing

        Second and finally, the defendant contends that the trial court erred in sentencing him to nine
years on Count One based solely upon his prior criminal record. The weight given to each
enhancement or mitigating factor is in the discretion of the trial court, assuming the trial court has
complied with the purposes and principles of the sentencing act and its findings are supported by the
record. State v. Madden, 99 S.W.3d 127, 138 (Tenn. Crim. App. 2002). The statutes prescribe no
particular weight for an enhancement or mitigating factor. State v. Gosnell, 62 S.W.3d 740, 750
(Tenn. Crim. App. 2001). “[A] defendant’s ‘sentence is not determined by the mathematical process
of adding the sum total of enhancing factors present then subtracting from this figure the mitigating
factors present for a net number of years.’” State v. Alder, 71 S.W.3d 299, 306 (Tenn. Crim. App.
2001) (quoting State v. Boggs, 932 S.W.2d 467, 475 (Tenn. Crim. App. 1996)).

        The defendant challenges his sentence for possession of over .5 grams of a Schedule II
controlled substance (cocaine) with intent to sell, a Class B felony, which carries a Range I penalty
of between eight and twelve years. The trial court began with the presumptive minimum sentence
of eight years and enhanced the sentence to nine years based upon the application of enhancement
factor (2), the defendant’s previous history of criminal convictions. See T.C.A. § 40-35-114(2). The
trial court specifically noted that:

               [The defendant has] two prior felony convictions. One of them is, actually,
       the sale of a drug, marijuana. The conviction time was 1989. He’s also got a robbery
       conviction back in 1982. After those, as late as 2004, there’s a simple possession of
       marijuana. Other than that, the records are not significant, but there are two prior
       felonies as well as a late charge on the marijuana in this case.

              Considering his prior - or starting at the statutory minimum of eight years and
       considering his prior criminal history in this case, the Court feels that the appropriate
       sentence in this case is nine years. I’m not going to enhance him beyond that.

Upon review, we conclude that the defendant’s prior criminal record, which includes two prior
drug-related offenses, justified the trial court’s one-year enhancement of his sentence.




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                                        Conclusion

       Based upon the foregoing, we affirm the judgment and sentence of the Circuit Court of
Hardin County.




                                                  ___________________________________
                                                  JOHN EVERETT WILLIAMS, JUDGE




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