                                                                                         02/22/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                              December 19, 2017 Session

            STATE OF TENNESSEE v. RICHARD EUGENE REED

                  Appeal from the Criminal Court for Knox County
                         No. 103209    Scott Green, Judge
                                       Mary Beth Leibowitz, Judge


                            No. E2017-00114-CCA-R3-CD


The Defendant, Richard Eugene Reed, was convicted by a Knox County Criminal Court
jury of possession with intent to sell 0.5 gram or more of cocaine in a drug-free school
zone, a Class A felony; possession with intent to deliver 0.5 gram or more of cocaine in a
drug-free school zone, a Class A felony; possession with intent to sell 0.5 gram or more
of cocaine within a drug-free childcare zone, a Class B felony; possession with intent to
deliver 0.5 gram or more in a drug-free childcare zone, a Class B felony; possession of a
firearm during the commission of a dangerous felony, a Class D felony; and unlawful
possession of a weapon by a convicted felon, a Class D felony. See T.C.A. §§ 39-17-417
(2010) (amended 2012, 2014) (possession of 0.5 gram or more of cocaine with intent to
sell or deliver), 39-17-432 (2014) (drug-free school zone and drug-free childcare zone
enhancement), 39-13-1324 (2010) (amended 2012, 2014) (possession of firearm during
commission of a dangerous felony), 39-17-1307 (2014) (amended 2017) (unlawful
possession of a weapon by a convicted felon). The trial court merged the drug-related
convictions and sentenced the Defendant to an effective twenty years’ confinement. On
appeal, the Defendant contends that (1) the evidence is insufficient to support his
convictions and (2) the trial court erred in denying his motion to suppress. We affirm the
judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Gerald L. Gulley, Jr. (on appeal) and Forrest Wallace (at trial), Knoxville, Tennessee, for
the appellant, Richard Eugene Reed.
Herbert H. Slatery III, Attorney General and Reporter; Katherine A. Redding, Assistant
Attorney General; Charme Allen, District Attorney General; and Sean McDermott,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                             OPINION

        This case arises from a July 5, 2011 warrantless search of the apartment shared by
the Defendant and Donna Garrett and the seizure of evidence found during the search.
The Defendant filed a pretrial motion to suppress the seized evidence, alleging that the
warrantless search was unconstitutional. The Defendant argued that neither he nor Ms.
Garrett consented to the search and that although Ms. Garrett’s daughter, Junisha
Garrett,1 consented to a search, Junisha was without legal authority as a minor to consent.
The Defendant asserted that all evidence obtained during the search should be suppressed
as fruit of the poisonous tree.

                                   SUPPRESSION HEARING

       At the suppression hearing, Knoxville Police Officer Jeff Damewood testified that
on July 5, 2011, he responded to the scene of a reported attempted robbery and a shooting
near the apartment shared by the Defendant and Ms. Garrett. Officer Damewood stated
that witnesses to the robbery and shooting identified a house that the suspects entered.
Officer Damewood said that the house contained two apartments, one on the first floor
and one on the second floor. Officer Damewood said that he first entered the first floor
apartment, that it was empty, and that he knocked on the door to the upstairs apartment.
Officer Damewood stated that two women answered the door, that the women said they
were alone in the apartment, and that he asked the women if he could search the
apartment to look for the suspects. Officer Damewood said that the women consented to
the search and that he and other officers entered the apartment.

       Officer Damewood testified that he searched the master bedroom, that he entered
the bedroom closet, and that he saw an open box of “baggies” on a shelf. Officer
Damewood stated that he could see inside the box and that one of the baggies contained a
white substance, which he thought was crack cocaine. Officer Damewood said that he
did not touch the box or any of the baggies and that he continued searching the master
bedroom for the suspects. Officer Damewood stated that the suspects were not inside the
apartment. Officer Damewood said that he told the supervising officer at the scene,
Officer Coker, about the baggies inside the master bedroom closet.



1
 Because Ms. Garrett and Junisha Garrett have the same surname, we refer to Junisha Garrett by her first
name for clarity.
                                                  -2-
       Officer Damewood testified that Ms. Garrett rented the apartment and that Ms.
Garrett arrived home as the search for the suspects ended. Officer Damewood stated that
Ms. Garrett said she shared the apartment and the master bedroom with the Defendant
and that Ms. Garrett consented to a subsequent search of the apartment.

       Officer Damewood testified that he reentered the master bedroom closet and that
he seized the box of baggies. Officer Damewood stated that he found a gun, cash,
ammunition, and a second box of baggies inside a shoebox in the closet. Officer
Damewood stated that he found a plate containing white residue and razor blades under
the bed and that he found the Defendant’s driver’s license and offender identification
card on a bedside table.

      Officer Damewood testified that officers saw the Defendant in an alleyway near
the house and arrested him. Officer Damewood stated that he did not know the
Defendant lived in the apartment before entering and that he learned the Defendant was
on probation after finding the Defendant’s offender identification card.

       Officer Damewood testified that baggies were generally used to package drugs for
selling and that seeing the box of baggies on a shelf inside the closet was suspicious.
Officer Damewood stated that the shelf was below eye level and that he could see inside
the box. Officer Damewood said that the master bedroom door was not locked.

       Shondia Grimes testified for the defense that she was Ms. Garrett’s cousin and that
the Defendant was Ms. Garrett’s boyfriend. Ms. Grimes stated that she was in the
apartment with Junisha and that Junisha was age fifteen or sixteen at the time. Ms.
Grimes said she heard a knock at the door, that she and Junisha answered the door, and
that she saw police officers with their guns drawn standing outside. Ms. Grimes stated
that the officers said they were looking for suspects from a shooting and asked if anyone
was inside the apartment. Ms. Grimes stated that she told the officers the suspects were
not in the apartment but that the officers asked if they could search the apartment. Ms.
Grimes said that she told the officers she did not live in the apartment, that she could not
consent to a search, and that the officers eventually went inside the apartment. Ms.
Grimes stated that she did not know if Junisha allowed the officers inside.

       Following the hearing, the trial court denied the Defendant’s motion to suppress.
The court found that Junisha consented to the initial search and that no legal authority
showed that a “teenage person cannot give permission to search or enter an apartment.”
The court found that after Officer Damewood observed what he believed was crack
cocaine in plain sight, officers obtained consent from Ms. Garrett for an additional
search. The court determined that the searches were reasonable under the totality of the
circumstances.



                                            -3-
       At a later date, the Defendant renewed his motion, requesting permission to
present the testimony of Junisha. At this time, the trial court judge who denied the
Defendant’s initial motion to suppress had retired. The following exchange occurred
between the subsequent trial court judge and the Defendant’s trial counsel:

       THE COURT: I’m going to respectfully deny your motion, [Counsel]. . . .
       [I]f you want to build your record and make an offer of proof, I’m sure my
       court reporter would let you put that witness on and solicit what – and elicit
       what that witness would testify to. But I think the General is correct if the
       motion has been heard, the law of the case is that the search is good, and
       I’m not going to reopen it. Okay.

       [Counsel]: I understand.       But I would like the opportunity to tender
       [Junisha’s] testimony.

       THE COURT: I’ll do that. I won’t be in here when that happens, but if
       you want to talk to [the court reporter], I’m sure she would accommodate
       you, as long as you’re not too long with it. (Emphasis added.)

       Junisha testified that she lived in the apartment with Ms. Garrett and the
Defendant and that she was in the apartment with Ms. Grimes on July 5, 2011.
Junisha stated that she heard a knock at the door, that “more than five” officers
were at the door, that the officers said they were looking for suspects, and that she
told the officers she and Ms. Grimes were alone. Junisha said that the officers
asked whether she lived in the apartment and that she told the officers she lived
there with her mother. Junisha stated that the officers asked to enter the
apartment, that Ms. Grimes did not give the officers permission and that she told
the officers “[she] was going to call [her] mom.” Junisha said that the officers
asked her and Ms. Grimes to stay on the porch and that the officers went inside the
apartment. Junisha stated that she was scared and that she and Ms. Grimes were
not allowed to leave.

       Junisha testified that she did not consent to the officers entering the apartment, that
she only said she would “call [her] mom,” and that the officers had completed the search
by the time Ms. Garrett arrived. Junisha stated that she was not related to the Defendant,
that the Defendant had lived in the apartment since 2009, and that the Defendant had
stayed in the apartment “every night.” Junisha said that she knew the Defendant was on
probation, that she did not know the house was subject to a search at any time because the
Defendant lived there, and that she did not know the Defendant owned a gun.

       The trial court entered an order denying the Defendant’s motion to suppress after
the defense presented Junisha’s testimony.


                                             -4-
                                         TRIAL

       Officer Damewood testified that he went to the scene of a robbery and shooting
near the Defendant’s apartment and that witnesses identified a house the witnesses saw
the suspects enter. Officer Damewood stated that the house contained two apartments,
that he and other officers entered one of the apartments, and that no one was inside.
Officer Damewood stated that he knocked on the door to the second apartment, that two
women answered the door, and that the women said they were alone. Officer Damewood
said that Ms. Garrett rented the apartment and that one of women who answered the door
was Ms. Garrett’s daughter. Officer Damewood stated that he asked the women if he
could search the apartment for the suspects and that the women allowed the officers
inside. Officer Damewood stated that he searched the master bedroom, that he went in
the closet, and that he saw an open box of “sandwich baggies.” Officer Damewood said
that he did not touch the box, that he looked inside, and that he saw crack cocaine.
Officer Damewood stated that he continued searching the bedroom, that he looked under
the bed, and that he saw a “standard dinner plate” containing white residue and two razor
blades. Officer Damewood said that the suspects were not in the apartment but that Ms.
Garrett arrived home from work when the search ended.

         Officer Damewood testified that Ms. Garrett consented to an additional search,
that he returned to the master bedroom closet, and that he seized the box of baggies and
crack cocaine. Officer Damewood said that he found a Nike shoebox inside the closet
and that the label on the shoebox depicted a pair of black, size twelve “Air Force” athletic
shoes. Officer Damewood stated that he opened the shoebox and found sandwich
baggies, cash, scissors, a firearm, and ammunition. Officer Damewood stated that he
seized the plate containing white residue and razor blades from under the bed and that he
found a wallet containing the Defendant’s driver’s license on a bedside table.

       Officer Damewood testified that he saw the Defendant outside the apartment but
that he did not speak with the Defendant. Officer Damewood stated that he was familiar
with the area and that a childcare agency was located across the street and that a school
was located one block away.

       Knoxville Police Officer Greg Coker testified that after he arrived in the
apartment, Officer Damewood told him about the crack cocaine found during the initial
search. Officer Coker stated that based on his experience, it appeared that the crack
cocaine was packaged for sale. Officer Coker said that he observed the Defendant in a
patrol car wearing Nike shoes and that the shoes appeared to be from the same shoebox
found inside the master bedroom closet.

       Officer Coker testified that Ms. Garrett “also resided in the house with the
Defendant” and that Ms. Garrett pleaded guilty to facilitation of distribution of cocaine.
Officer Coker testified that Ms. Garrett consented to an additional search of the

                                            -5-
apartment. Officer Coker stated that Ms. Garrett and the Defendant shared the master
bedroom, that they were both criminally charged, and that based on the location of the
evidence, he believed both the Defendant and Ms. Garrett were involved in the crime.

      Upon questioning by the trial court, Officer Coker testified that he arrived in the
apartment while officers were searching for the suspects but that he did not search the
master bedroom until Ms. Garrett consented. Officer Coker said that both male and
female clothing were in the master bedroom closet.

       Tennessee Bureau of Investigation (TBI) Special Agent John Scott testified that he
analyzed the substance contained in one of eight baggies, that the substance tested
positive for cocaine base, and that it weighed 1.98 grams. Special Agent Scott stated that
he weighed the other seven baggies and that they had a combined weight of 13.05 grams,
which included the substance and packaging material.

        Donna Roach testified that she was employed by the City of Knoxville Geographic
Information System as a map maker. Ms. Roach stated that she created a map showing
the location of the Defendant’s apartment and that the apartment was located within 1000
feet of three daycare centers and one school.

       Robert Evans, Principal of Knoxville Baptist Christian School, testified that the
private school operated for forty-two years and that it was in operation on July 5, 2011,
although the facilities were closed for summer break. Principal Evans was shown a map
of the area and said that the map was accurate.

      Melissa Thomas testified that she was employed by the Tennessee Department of
Human Services and that she monitored licensed childcare agencies in Knox County.
Ms. Thomas stated that all three childcare agencies located within 1000 feet of the
Defendant’s apartment were licensed and operating on July 5, 2011.

       Kayla Reed, the Defendant’s niece, testified for the defense that on July 2, 2011,
the Defendant called her and said Ms. Garrett had “put him out” and that he asked if he
could “bring his stuff over.” Ms. Reed said that the Defendant brought “two trash bags
and two blue totes” to her home which contained the Defendant’s clothes and shoes. Ms.
Reed said that the Defendant stayed overnight in her home on July 2, July 3, and July 4.
Ms. Reed testified that the Defendant had been living with Ms. Garrett for a few months
before July 2011 but that he lived in her home on July 5, 2011.

        Upon questioning from the trial court, Ms. Reed testified that the Defendant
possessed his wallet while staying in her home. On redirect examination, Ms. Reed
testified that the Defendant’s belongings were still in her home and that the Defendant
was wearing black Nike shoes on the night he came to her home.


                                           -6-
      Erin Monroe testified for the State on rebuttal that she was required to monitor the
Defendant’s residency. The Defendant reported living with Ms. Garrett in the apartment
on June 7, 2011. Ms. Monroe stated that she last visited the Defendant at the apartment
on June 15, 2011, and that his belongings were present. Ms. Monroe said that the
Defendant was required to inform her of address changes and to ask for permission to
move and that the Defendant never notified her of an address change or requested
permission to move before the July 5, 2011 search.

       Upon this evidence, the Defendant was convicted of possession with intent to sell
0.5 gram or more of cocaine in a drug-free school zone, possession with intent to deliver
0.5 gram or more of cocaine in a drug-free school zone, possession with intent to sell 0.5
gram or more of cocaine within a drug-free childcare zone, possession with intent to
deliver 0.5 gram or more in a drug-free childcare zone, possession of a firearm during the
commission of a dangerous felony, and unlawful possession of a weapon by a convicted
felon. The trial court sentenced the Defendant to an effective twenty years’ confinement.
This appeal followed.

                                I.     Motion to Suppress

       The Defendant contends that the trial court erred by denying his motion to
suppress the seized evidence. He argues that the initial search of the apartment was
unconstitutional because a minor cannot consent to a warrantless search of a parent’s
home. The Defendant argues that even if a minor could consent, Junisha’s consent was
not voluntary because of the coercive nature of the circumstances. The Defendant argues
that the evidence should have been suppressed because it was fruit of the poisonous tree.
The State responds that the initial search was constitutional because a juvenile can
consent to a search and that even if Junisha did not consent, exigent circumstances
supported the warrantless entry.

       A trial court’s findings of fact on a motion to suppress are conclusive on appeal
unless the evidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996); State v. Jones, 802 S.W.2d 221, 223 (Tenn. Crim. App. 1990). Questions
about the “credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier
of fact.” Odom, 928 S.W.2d at 23. The prevailing party is entitled to the “strongest
legitimate view of the evidence and all reasonable and legitimate inferences that may be
drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998); see State
v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The trial court’s application of the law to its
factual findings is a question of law and is reviewed de novo on appeal. State v. Yeargan,
958 S.W.2d 626, 629 (Tenn. 1997).

      The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect individuals from unreasonable searches and seizures.

                                             -7-
See U.S. Const. amend. IV; Tenn. Const. art. 1, § 7. Warrantless seizures are “presumed
unreasonable, and evidence discovered as a result thereof is subject to suppression unless
the State demonstrates that the . . . seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997); see Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971); State v.
Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

       One such exception to the warrant requirement exists for a search conducted
pursuant to valid consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
Consent for a warrantless search may be given by the defendant or by “a third party who
possessed common authority over or other sufficient relationship to the premises or
effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974); see
State v. Talley, 307 S.W.3d 723, 734 (Tenn. 2010). Common authority is shown by

       mutual use of the property by persons generally having joint access or
       control for most purposes, so that it is reasonable to recognize that any of
       the co-inhabitants has the right to permit the inspection in his own right and
       that the others have assumed the risk that one of their number might permit
       the common area to be searched.

Matlock, 415 U.S. at 172 n.7; see Bartram, 925 S.W.2d at 231.

       The record reflects that the trial court properly denied the Defendant’s motion to
suppress because the question as to whether a juvenile can consent to a warrantless search
of a parent’s home is not determinative in this case. The record reflects that Ms. Garrett
gave valid consent to a subsequent search of the apartment. After officers first entered
the apartment to search for the suspects, Officer Damewood saw crack cocaine inside a
box of baggies in plain view in the master bedroom closet but that he did not touch or
remove the box from the closet. Officer Damewood said that he continued searching the
master bedroom, that he saw the plate containing white residue and razor blades under
the bed, and that he did not remove the plate.

       After Officer Damewood completed the initial search for the suspects, Ms. Garrett
had returned home and consented to a subsequent search of the apartment. During the
subsequent search, officers seized the crack cocaine in plain view and found the firearm,
ammunition, baggies, scissors, and cash inside a shoebox. The record reflects that none
of the evidence used to convict the Defendant was seized until after Ms. Garrett
consented to a warrantless search of the apartment she shared with the Defendant. The
Defendant is not entitled to relief on this basis.




                                            -8-
                                    II.    Sufficiency

       The Defendant contends that the evidence is insufficient to prove that he had
constructive possession of the crack cocaine, firearm, or ammunition found during the
search. The Defendant argues that no forensic evidence or testimony proved he had
possession and that trial testimony showed he did not live in the apartment at the time of
the search. The State responds that the evidence is sufficient to prove the Defendant had
constructive possession of the seized items. We agree with the State.

        In determining the sufficiency of the evidence, 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, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see
State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The 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)). A conviction may be based upon circumstantial evidence alone. See Dorantes,
331 S.W.3d at 380-381.

       Possession may be actual or constructive. State v. Shaw, 37 S.W.3d 900, 903
(Tenn. 2001). Constructive possession requires a showing that a defendant had “the
power and intention at a given time to exercise dominion and control over . . . [the item]
either directly or through others.” State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim.
App. 1987) (internal quotations and citation omitted). “‘In essence, constructive
possession is the ability to reduce an object to actual possession.’” State v. Williams, 623
S.W.2d 121, 125 (Tenn. Crim. App. 1981) (quoting United States v. Martinez, 445 F.2d
495, 498 (5th Cir. 1979)). “Constructive possession depends on the totality of the
circumstances in each case” and “may be proven by circumstantial evidence.” State v.
Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing T.C.A. § 39-17-419 (2006)).

       We conclude that the evidence is sufficient to support the jury’s findings that the
Defendant had constructive possession of the cocaine, firearm, and ammunition. The
record reflects that the Defendant reported living with Ms. Garrett in the apartment on
June 7, 2011 to Ms. Monroe, that Ms. Monroe had visited the Defendant in the apartment

                                             -9-
on June 15, 2011, and that the Defendant’s belongings were in the apartment. Ms.
Monroe stated that the Defendant did not report a change of address and did not request
permission to move.

       Officer Damewood found the Defendant’s driver’s license on a bedside table.
Officer Damewood also found a box of baggies containing crack cocaine in the master
bedroom closet, and Officer Coker saw both male and female clothing in the closet.
Officer Coker said that after the Defendant was arrested, it appeared the Defendant was
wearing shoes that matched the shoes depicted on the label of the shoebox, which
contained the firearm and ammunition. The jury’s verdict reflects that it credited the
proof that the Defendant lived at the home where the crack cocaine, firearm, and
ammunition were found. The Defendant is not entitled to relief on this basis.

        The Defendant does not raise on appeal whether the trial court erred in submitting
a second written order denying the Defendant’s motion to reconsider without hearing
Junisha’s testimony. However, we note that it is appropriate procedure for a trial court
judge to be present in a courtroom when an offer of proof is made on the record or when
a witness’s testimony is presented. While the trial judge’s absence during the
Defendant’s offer of proof does not entitle the Defendant to appellate relief in this case,
we caution the trial court that the irregular procedure employed for the Defendant’s offer
of proof may be a cause for reversal on other facts, and we believe the correct practice to
be for the judge to be present during all judicial proceedings before the court.

     In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.




                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




                                           -10-
