                                                                                        04/07/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

                         Assigned on Briefs March 24, 2020

           STATE OF TENNESSEE v. STEPHEN DAMIAN LEDET

                Appeal from the Circuit Court for Anderson County
                  No. B6C00174       Donald Ray Elledge, Judge
                    ___________________________________

                           No. E2019-00909-CCA-R3-CD
                       ___________________________________


Stephen Damian Ledet, Defendant, was convicted by a jury of possession of a Schedule
II controlled substance for resale and tampering with evidence. On appeal, Defendant
claims the evidence was insufficient to sustain the convictions. After review of the
record and briefs, we affirm the convictions.


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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and THOMAS T. WOODALL, J., joined.

Stephanie M. Jernigan, Maryville, Tennessee, for the appellant, Stephen Damian Ledet.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Dave S. Clark, District Attorney General; and Anthony
Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                       Jury Trial

       Oak Ridge Police Department (ORPD) Officer Timothy Allen Buckner testified
that on April 13, 2016, he was on patrol when he saw a vehicle with the passenger-side
brake light “busted off.” He said the lamp “illuminated white from the rear of the
vehicle.” Officer Buckner initiated a stop. He advised Defendant, who was the driver,
why he stopped the vehicle and asked him for his driver’s license, registration, and proof
of insurance. He said that Defendant was visibly shaking as he reached for the
documents and would not make eye contact or speak to him. The passenger identified
herself as Anita Stevens. He said that he was concerned by Defendant’s conduct. He
returned to his patrol car and ran Defendant’s license through his data base.


       Once backup arrived, Officer Buckner asked Defendant to exit the vehicle. He
asked Defendant “if there [was] anything illegal in the vehicle, most importantly weapons
and then went into narcotics.” When Defendant answered “no,” Officer Buckner asked
for permission to search, and Defendant consented. Officer Buckner radioed Officer Ray
Steakley and asked him “to bring his K-9 partner Bika on scene to do an exterior vehicle
sniff of the car.” He then spoke to Ms. Stevens through the passenger-side window. He
told her that Defendant said she had “narcotics on her.” Officer Buckner testified that
was not true and that Defendant never said that. He then “asked [Ms. Stevens] if she had
anything on or in her.” Ms. Stevens initially denied having any drugs. After the dog
alerted on the vehicle, she admitted she had drugs “in her.” Officer Buckner contacted
Officer Sandy Bell and asked her to come to the scene. Outside the presence of the male
officers, Officer Bell retrieved a silver cylinder from Ms. Stevens’ vagina and delivered it
to Officer Buckner. Officer Buckner examined the contents of the cylinder, which
contained four corner bags of a crystalline substance. Based on his training, he said that
the substance appeared to be crystal methamphetamine.
       Officer Buckner took both individuals into custody and advised them of their
Miranda rights. Defendant asked Officer Buckner “if he took the charge, what would his
outcome be.”        Defendant then stated that “he didn’t know she had [the
methamphetamine] on her and then he went back and said he did.” Officer Buckner said
that he told Defendant to not say the methamphetamine was his “just to help her out, [and
that he] want[ed] the honest truth about it.” Defendant was placed in Officer Buckner’s
patrol car and transported to the police station.
       On cross-examination, Officer Buckner acknowledged that he “had previous
interactions with [D]efendant and Ms. Stevens[.]” Officer Buckner agreed that many of
the people he stops are nervous.
        Officer Sandy Bell testified that she was called to the scene by Officer Buckner
because a female officer was required to perform a cavity search of a female. She said
that it was not uncommon for a female to hide drugs in her vagina. Once she retrieved
the silver cylinder, she turned it over to Officer Buckner.




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      Lieutenant Matthew Tedford testified that he drove the evidence to the Tennessee
Bureau of Investigation (TBI) Crime Laboratory in Knoxville. TBI Special Agent Carl
Smith testified as an expert in forensic chemistry. He analyzed the evidence and
confirmed that “the crystalline substance” contained in four Ziploc corner bags was
methamphetamine and that the total weight was “two and a half grams.”
       Anderson County Sheriff’s Department Deputy Simon Burn testified that he was
assigned to the Seventh District Drug Task Force. He said that methamphetamine is
often sold in the corners cut from Ziploc bags.
        Ms. Stevens testified that she was dating Defendant at the time of her arrest. She
said that neither she nor Defendant was working at that time. She admitted that she had
three prior felony convictions.        She said that she knew that Defendant had
methamphetamine in the car. She said that Defendant stated, “[T]here’s cops, shove this”
and handed her a metal container filled with methamphetamine. She knew Defendant
wanted her to put the container in her vagina. She said that she had hidden drugs like that
before. She said that the methamphetamine was for Defendant to sell and for their
personal use. She said they paid twenty dollars per one-tenth of a gram of
methamphetamine. She said Officer Buckner told her that Defendant had told him “that I
had something on me.” She said she thought Defendant “told on [her].” She continued
to deny that she had drugs in her possession until the dog alerted on the vehicle. She
said, “[T]here [wa]s no further point of me having them go through getting a court order
to take me to a hospital and have it removed from me.” When Officer Bell arrived, Ms.
Stevens retrieved the cylinder and handed it to her. Ms. Stevens was charged and pled
guilty without any “promise” as to her sentence. At the time of the trial, Ms. Stevens was
on probation and was going to college. She had no probation violations in the two and
one-half years since her arrest.
       On cross-examination, Ms. Stevens said that she knew the container had
methamphetamine in it because she and Defendant had used methamphetamine from that
container that morning. She said that her relationship with Defendant ended “then and
there,” referring to the arrest. She spent 120 days in jail before she was released.
        After a Momon hearing, Defendant elected not to testify. Defendant called his
father, Ronald Ledet. Ronald Ledet testified that he had legal issues with Ms. Stevens,
but the trial court did not allow Mr. Ledet to go into detail about those issues.
       The jury convicted Defendant of possession of a Schedule II controlled substance
for resale (count one) and tampering with evidence (count two). The trial court sentenced
Defendant to concurrent terms of eleven years in count one and five years in count two
and ordered the sentences to be served in the Department of Correction. Defendant
timely appealed.

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                                         Analysis

       In this appeal, Defendant contends that the evidence presented at trial was
insufficient to sustain his convictions for possession of Schedule II controlled substance
for resale and tampering with evidence. The State argues that there was sufficient
evidence to sustain the convictions. We agree with the State.

                                    Standard of Review

        Our standard of review for a sufficiency of the evidence challenge 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, 319 (1979) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “is the same whether the
conviction is based upon direct or circumstantial evidence.” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007). “A jury verdict approved by the trial judge accredits the
testimony of the witnesses for the State and resolves all conflicts in favor of the State’s
theory.” State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983).

               Possession of Schedule II Controlled Substance for Resale

       It is an offense to knowingly possess a controlled substance with the intent to sell
or deliver the controlled substance. Tenn. Code Ann. § 39-17-417(a)(4) (2019). A
person “acts knowingly with respect to the conduct or to circumstances surrounding the
conduct when the person is aware of the nature of the conduct or that the circumstances
exist.” Tenn. Code Ann. § 39-11-302(b) (2019).

      Defendant argues that he did not have possession of the controlled substance
because he did not have the power and intent to exercise control over the cylinder of
methamphetamine that was in Ms. Stevens’ vagina. We agree that Ms. Stevens, not
                                            -4-
Defendant, was in actual possession of the methamphetamine at the time law
enforcement officers obtained the cylinder from Ms. Stevens. However, “in criminal
cases, a possession element may generally be established by showing actual or
constructive possession.” State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014). Actual
possession refers to physical control over an item, whereas constructive possession
“requires that a person knowingly have ‘the power and the intention at a given time to
exercise dominion and control over an object, either directly or through others.’” State v.
Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) (quoting United States v. Craig,
522 F.2d 29 (6th Cir. 1975)); see also State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).
“Constructive possession depends on the totality of the circumstances in each case.”
State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013). Neither the “mere presence” of an
individual in an area where drugs are found, nor the “mere association” of an individual
with a person in control of the drug “is sufficient, standing alone, to find constructive
possession.” State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987); see also
State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000).

       Ms. Stevens testified that, when Officer Buckner initiated the traffic stop,
Defendant gave her the cylinder containing the methamphetamine and said, “[T]here’s
cops, shove this.” Based on her previous experience, she understood that Defendant was
telling her to conceal the cylinder in her vagina. Ms. Stevens testified that the
methamphetamine was for Defendant to sell and for their personal use. Defendant first
stated to Officer Buckner that he did not know that Ms. Stevens had the
methamphetamine on her but then admitted that he knew she did. During his
conversation with Officer Buckner, Defendant said that “it was his and then said it wasn’t
his.” Officer Buckner said that Defendant waivered several times about whose
methamphetamine it was.

        The evidence was sufficient for the jury to determine that Defendant had actual
possession of the cylinder of methamphetamine before Officer Buckner initiated the
traffic stop, that Defendant directed Ms. Stevens to conceal it in her vagina, and that he
intended to reobtain actual possession from Ms. Stevens if the police failed to discover
the drugs. The evidence was sufficient for the jury to find that Defendant had “the power
and intention . . . to exercise dominion and control over” the methamphetamine.
Williams, 623 S.W.2d at 125 (internal quotation marks omitted).

                                Tampering with Evidence

      Tenn. Code Ann. § 39-16-503(a)(1) (2019) defines the offense of tampering with
physical evidence as follows:



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      (a) It is unlawful for any person, knowing that an investigation or official
      proceeding is pending or in progress, to:

             (1) [a]lter, destroy, or conceal any record, document or thing with
             intent to impair its verity, legibility, or availability as evidence in the
             investigation or official proceeding. . . .

      Defendant had control over the cylinder of methamphetamine. When he realized
that he was being stopped by the police, he directed Ms. Stevens to conceal the
methamphetamine. The evidence was sufficient for the jury to determine that Defendant,
knowing that an investigation was imminent, took steps to conceal evidence of a crime.

                                        Conclusion

       There is sufficient evidence to sustain the convictions. The judgments of the trial
court are affirmed.

                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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