       IN THE COURT OF CRIMINAL APPEALS OF
                    TENNESSEE
                                                                     FILED
                       AT KNOXVILLE
                                                                   December 2, 1999

                OCTOBER SESSION, 1999                             Cecil CROWS ON, Jr.
                                                                  Appellate Court Clerk




STATE OF TENNESSEE,             *
                                *     No. 03C01-9811-CR-00420
      Appellee,                 *
                                *     SULLIVAN COUNTY
vs.                             *
                                *     Hon. PHYLLIS H. MILLER, Judge
CECIL U. COBB, JR.,             *
                                *     (Possession of Dihydrocodeinone,
      Appellant.                *     a Schedule III controlled substance;
                                *     simple possession of marijuana;
                                *     failure to obey a traffic signal;
                                *     driving under the influence of an
                                *     intoxicant)


For the Appellant:                    For the Appellee:

Gerald L. Gulley, Jr.                 Paul G. Summers
Contract Appellate Defender           Attorney General and Reporter
P. O. Box 1708
Knoxville, TN 37901-1708              Marvin S. Blair, Jr.
                                      Assistant Attorney General
(APPEAL ONLY)                         Criminal Justice Division
                                      425 Fifth Avenue North
and                                   2d Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493
Leslie S. Hale
Office of the Public Defender
P. O. Box 839                         H. Greeley Wells, Jr.
Blountville, TN 37617                 District Attorney General

                                      Robert H. Montgomery
                                      Asst. District Attorney General
Thomas McKinney                       Blountville, TN 37617
Attorney at Law
222 E. Center Street
Kingsport, Tn 37660
(AT TRIAL)


OPINION FILED:

AFFIRMED

David G. Hayes, Judge
                                                      OPINION



           The appellant, Cecil U. Cobb, Jr., was convicted by a Sullivan County jury of
the misdemeanor offenses of possession of Dihydrocodeinone, a Schedule III

controlled substance; simple possession of marijuana; failure to obey a traffic signal;

and driving under the influence of an intoxicant.1 The trial court imposed an
effective sentence of twenty-three months, twenty-eight days. 2 On appeal, the
appellant challenges the sufficiency of the evidence for each of his four convictions

and the chain of custody related to the possession of the marijuana and Schedule III
drugs.



           After review, we affirm the judgment of the trial court.




                                                 BACKGROUND



           Around 2:00 a.m. on May 30, 1997, Lieutenant Bob Abernathy of the

Kingsport Police Department was dispatched to Ralph’s Bar and Grill to investigate

an activated security alarm. When the police called the restaurant to verify the

alarm, a voice on the other end cursed them and hung up the telephone. The
business owner, Ralph Barrett, was advised of the situation and met the lieutenant

and two other officers at the scene. No visible signs of a burglary were observed,

however, a white Chevrolet Cavalier was located in the parking lot.


           Upon entering the building, Lieutenant Abernathy observed the appellant

emerge from a room behind the bar. The lieutenant attempted to elicit the
appellant’s name to which the appellant responded “Stubby, 357.” The officers

noted the appellant’s odor of alcohol, his bloodshot eyes, and his “uncooperative”

nature. The appellant advised Barrett that he had been drinking. Barrett explained


   1
       After the ju ry’s guilty verdict for D UI was returned , the appe llant pled guilty to D UI 4 th offense.
   2
     The trial court imposed the following sentences for each of the respective offenses:
possession of dihydrocodeinone, eleven months and twenty-nine days; possession of marijuana,
eleven months and twenty-nine days; and failure to obey a traffic signal, thirty days. These
sentences were ordered to run concurrently. For the DUI fourth offense, the appellant received
eleven months and twenty-nine days to be served consecutively to the above sentence of eleven
months and twenty-nine days.

                                                           2
to the officers that the appellant was employed as a cook at the restaurant, that he

had a key to the building, and that he had occasionally slept in the back room.

Because Barrett permitted the appellant to remain in the restaurant and no other
patrons were around, the officers did not remove the appellant from the premises

even though he was obviously intoxicated. The officers instructed the appellant not

to leave the building. Mr. Barrett stayed behind to speak further with the appellant.


       Following the investigation of the alarm call, Kingsport Police Officer Rusty

Wallace testified that he drove west, two tenths of a mile, on Stone Drive and pulled
off the road into Trader’s Village to fill out a report. A few minutes later, Officer

Wallace observed a white car, which appeared to be the same car he had

previously noticed in the parking lot at Ralph’s Bar and Grill, traveling at
approximately sixty-five to seventy mph in a fifty-five mph speed zone. Initiating

pursuit, the officer observed the vehicle speed through a red light “at the intersection

of the exit ramps from John B. Dennis and Stone Drive,” without even touching the

brakes. After barely negotiating the ramp, the appellant pulled over to the shoulder

of the road. Upon approaching the vehicle, Officer Wallace recognized the driver as

the person he had seen inside Ralph’s Bar and Grill approximately fifteen minutes

earlier.



       The officer noticed the odor of alcohol and ordered the appellant out of the

vehicle. The appellant admitted that he drank a couple of beers earlier. When

asked to recite the alphabet, he stopped at the letter “G” and then said “and the rest


of them.” He declined to perform any other field sobriety tests. At this point, the

appellant was arrested and transported to the Kingsport City Jail.


       At the jail, the appellant refused to sign an implied consent form. Officer

Wallace delivered the appellant to the jailer, Mike Hickman, for booking. Upon

searching the appellant, Officer Hickman found a ”baggie” of marijuana and twelve
pills wrapped separately in cellophane in the appellant’s pants pocket. The twelve

pills were of two different types: some were “oblong with specs on them” and some

were “round.” Laboratory tests from the TBI Crime lab later established that all

twelve pills contained dihydrocodeinone, a Schedule III substance. The officer also

                                            3
discovered two “rolled cigarette joints” of marijuana in the appellant’s shirt pocket.

After finding these items, Officer Hickman “took them straight to the arresting officer

[Rusty Wallace]” in booking and advised the officer where he found them on the
appellant. Officer Wallace testified that the items brought to him by Officer Hickman

were two hand rolled marijuana cigarettes and some other pills of dihydrocodeinone

wrapped in cellophane. Although Officer Hickman did not place any identifying
marks upon the bag or drugs, he testified that he noted in the log book the articles

found on the appellant.



       If, at trial, any doubt remained as to the appellant’s intoxication after the

State’s proof, it was removed during the defense proof by the testimony of the

appellant and his employer, Barrett. Barrett testified that, after arriving at his
restaurant, he entered and encountered the appellant:

       He was sitting in the middle of the restaurant at a table asleep, passed
       out, whatever you want to call it. . . .
       ...
       There’s no doubt, he was drunker than, he was drunk. . . . [O]ne of the
       officers] asked Stubby, . . . what his full name was, and Stubby said,
       ‘Stubby.’ . . . and that’s all you fuckin’ need to know.
       ...
       After they left, I tried to get Stubby to let me take him home. He
       wouldn’t listen. I tried to get him to go back there and lay down, stay
       all night. He wouldn’t listen. I told him, I said, ‘Stubby, if you leave
       here, they are going to get you. They’re going to be sitting down the
       road waiting on you, and get you. I said, you better not leave here.’
       And he would not listen to me. He got his keys and went out the door.
       As he was going out the door, I was still begging him, I said, ‘Stubby,
       please, don’t leave, they’ll get you tonight.’ He left.



       The appellant testified on his own behalf. He related that, after closing
Ralph’s Bar and Grill sometime after 12:00 midnight, he traveled with a friend to a

local establishment known as the “Hog Wild.” The appellant described the Hog Wild

as a place to go dance and drink. The appellant informed the jury that, after arriving
at the Hog Wild;

       I’d say I drank ten (10) or twelve (12) beers, maybe more. . . . I was
       pretty drunk, I don’t remember leaving or anything.
        ...
       I remember getting there, and I remember probably an hour, hour and
       a half after that, and I just lost my memory, I guess. I drank the beer
       pretty fast. I guess that’s got a lot to do with it.



       The appellant conceded that he could not deny that he ran a traffic light

because he could not remember “driving the vehicle that night.”


                                            4
       In reference to the charge of possession of a Schedule III drug, the appellant

testified he had been prescribed Lortab, by Dr. Moore of Powell Valley Family
Physicians, for pain. It was stipulated that Lortab contains the chemical substance

hydrocodeinone. He related that he had surgery on both of his legs and, as a result,

experiences constant pain. The appellant provided the court with a copy of his
prescription dated February 10, 1997, for 7.5 milligrams of Lortab in the amount of

100 pills. He further testified that, at times, pursuant to his prescription he has

possessed both the “brand name lortabs[,] and the generic kinds also.” He testified
that he normally carried these pills with him in a cellophane wrapper or plastic bag

due to the fact that the plastic bottles are too cumbersome to fit in his pocket. He

acknowledged that there have been occasions when he has “run out” of the
prescribed medication. He denied having any marijuana or other illegal drugs in his

possession, other than those medically prescribed to him. Although the appellant

did acknowledge that the “oblong [pills] with the specs on them” were the prescribed

hydrocodeinone, he denied any knowledge of the “round ones [pills].”



       Following the court’s instructions, the jury returned a verdict of guilty on all

counts of the indictment.



                            I. Sufficiency of the Evidence

       The appellant challenges the sufficiency of the convicting evidence with

regard to each conviction. The standard for appellate review on an evidentiary
challenge is whether after considering the evidence in the light most favorable to the

State, any rational trier of fact could have found the essential elements of the

offense charged beyond a reasonable doubt. Tenn. R. App. P. 13(e). See also

Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979).



                         A. Possession of Dihydrocodeinone

       The appellant argues the evidence of this conviction was insufficient based
upon his prescription for dihydrocodeinone. Moreover, he contends that his

conviction should be reversed because the validity of the prescription was stipulated

by the State. The jury found the appellant guilty pursuant to Tenn. Code Ann. § 39-

17-418(a) (1996 Supp.). In order to obtain a conviction under this statute, the State

                                            5
must prove that the defendant “knowingly possessed . . . a controlled substance

unless the substance was obtained directly from, or pursuant to, a valid prescription

or order of a practitioner while acting in the course of professional practice.” Tenn.
Code Ann. § 39-17-418(a) (emphasis added).



         Before examination of this issue, we note that the jury was improperly
instructed that a valid prescription constituted a defense to the charged crime. A

valid prescription constitutes neither an affirmative defense nor a general defense to

the offense of simple possession of a controlled substance. See Tenn. Code Ann. §
39-11-204(a) (1991) (“[a]n affirmative defense in this title is so labeled by the

phrase: ‘It is an affirmative defense to prosecution under . . .’”) and Tenn. Code Ann.

§ 39-11-203(a) (“[a] defense to prosecution for an offense in this title is so labeled
by the phrase: ‘It is a defense to prosecution under . . . that . . . ‘”). However, the

prescription does constitute an exception.3 See Tenn. Code Ann. § 39-17-427 (“It is

an exception to this part if the person lawfully possessed the controlled substance

as otherwise authorized by [the Tennessee Drug Control Act of 1989]; see also

Tenn. Code Ann. § 39-17-418(a). Tenn. Code Ann. § 39-11-202 provides as

follows:

         (a) An exception to an offense in this title is so labeled by the phrase:
         “It is an exception to the application of . . .,” or words of similar import.
         (b) (1) Unless the statute defining an offense states to the contrary, the
         state need not negate the existence of an exception in the charge
         alleging commission of the offense.
              (2) An exception to be relied upon by a person must be proven by a
         preponderance of the evidence.



         The State’s proof established through the testimony of Officer Hickman that

the appellant possessed twelve pills, both “round” and “oblong,” of the controlled

substance stipulated as dihydrocodeinone. Also stipulated was the fact that the
appellant possessed a valid prescription for Lortab, which contains

dihydrocodeinone. However, the appellant admitted on direct examination4 and

    3
      The only difference between a defense and an exception is that a defense need only be
sufficiently raised by the proof while an exception places the burden on the defendant to prove the
excep tion by a prep ondera nce of th e eviden ce. See Tenn. Code Ann. § 39-11-202. Since the
trial court ch arged th e lesser burden , the defen dant rec eived the b enefit of the instruction .
Accordingly, we find the error is harmless. Tenn. R. Crim . P. 52(a).


    4
     Q:(Direct examination) (Defense Counsel) I’ll ask you to look at these pills here. Do they
app ear to be th e kin d of p ills, tha t hydro cod one [sic] th at co me in pill fo rm that a re us ually
prescribed to you, or that you have gotten in your prescription? Can you identify any of those?
         A: (Defendant) Some of these, yes.

                                                        6
again on cross-examination that the “round” dihydrocodeinone pills found in his

pants pocket were not possessed by virtue of a prescription. It is incumbent upon

the defendant to bring himself entirely within the exception contained in the statute.

Tenn. Code Ann. § 39-11-202. See generally State v. Sanderson, 550 S.W.2d 236

(Tenn. 1977) (providing discussion of prescription exception); Hayes v. State, 513

S.W.2d 144, 145 (Tenn. Crim. App. 1974), (exception recognized and burden of
proof on person claiming it). By the appellant’s own admission, he did not fall within

the exception. Moreover, he failed to meet his burden of establishing by a

preponderance of the evidence that the “round” pills fell under his valid prescription.
The plain language of Tenn. Code Ann. § 39-17-418(a) requires that the controlled

substance possessed, not merely the same schedule of drug, be directly possessed

from a valid prescription.           If this court construed the statute as the appellant
argues, it would permit a defendant in possession of a valid prescription to illegally

obtain the controlled substance and cloak himself under the protection of the

prescription. Accordingly, viewing the evidence in the light most favorable to the

State, the proof was sufficient to convict the appellant of possession of

dihydrocodeinone.



                                       B. Possession of Marijuana

         Next, the appellant challenges his conviction for possession of marijuana
based upon the fact that the appellant “did not know how it [marijuana] got to be on

his person.” The testimony of the State’s witnesses clearly established that the

appellant had possession of the marijuana. Officer Hickman testified that he
removed two marijuana cigarettes from the appellant’s shirt pocket and a “baggie”

containing loose marijuana from the appellant’s pants. Officer Wallace identified the

marijuana as that given to him by Hickman that he sent to the crime lab. Taken in
the light most favorable to the State, we conclude that the evidence was sufficient

for a rational juror to find the appellant guilty of this offense beyond a reasonable



         Q: Okay. And wha t are the ones that you can identify and know - - - -
         A: T he on es th at are oblon g with the s pec s [sic ] in the m is the h ydroc odo ne [s ic], tha t’s
the cheap nam e brand. The round on es, I don’t - - - -
         Q: Th e nam e brand , or the che aper bra nd of lortab you are talk ing abou t?
         A: The round ones, I have not seen, I don’t know what they are. They were not in my
pocket, I have no idea what these are.
         ...
         Q: So, you don’t know whether the other round pills there, or the dihydrocodone [sic] was
prescr ibed for you , or not, you do n’t reme mbe r taking tha t as suc h.
         A: No, I do n’t

                                                         7
doubt. See Tenn. Code Ann. § 39-17-418(a).



                             C. Driving Under the Influence
       Third, the appellant challenges the sufficiency of the evidence to sustain his

conviction for driving under the influence. The overwhelming nature of the evidence,

including the appellant’s admission of intoxication, established, beyond a
reasonable doubt, the appellant’s guilt for driving under the influence. See Tenn.

Code Ann. § 55-10-401 Supp. (1996).



                          D. Failure to Obey a Traffic Signal

       Finally, the appellant challenges his conviction for failure to obey a traffic

signal. We conclude that Officer Wallace’s testimony that the appellant sped
through a red traffic signal without applying the brakes at the intersection of John B.

Dennis and Stone Drive is sufficient for a rational juror to find him guilty of this

offense beyond a reasonable doubt. See Tenn. Code Ann. § 55-8-110 (1992

Supp.).



                                 II. Chain of Custody

       In his second issue, the appellant challenges the chain of custody related to

his possession of drugs. He argues that because Officer Hickman failed to make
identifying marks on the bags or drugs before giving them to Officer Wallace, who

was absent during the search, the State did not establish the requisite chain of

custody necessary to admit the drugs into evidence. It is well-established that
before physical evidence may be introduced, the party offering the evidence must

produce a witness who is able to identify the evidence or establish an unbroken

chain of custody. State v. Holbrooks, 983 S.W.2d 697, 700 (Tenn. Crim. App.

1998). However, the party is not required to prove the identity of the physical

evidence to an absolute certainty nor is the party required to exclude all possibilities

of tampering. State v. Holloman, 835 S.W.2d 42, 46 (Tenn. Crim. App. 1992). The

identification or chain of custody is sufficient “if the facts establish a reasonable
assurance of the identity of the evidence” and its integrity. State v. Woods, 806

S.W.2d 205, 212 (Tenn. Crim. App. 1990); State v. Kilburn, 782 S.W.2d 199, 203

(Tenn. Crim. App. 1989). The question of whether the chain of custody has been

sufficiently established by the proof rests within the sound discretion of the trial court

                                             8
and will not be overturned on appeal absent an abuse of that discretion. Holloman,

835 S.W.2d at 46.



       The State produced the testimony of Officer Hickman who identified the two

marijuana cigarettes and the cellophane wrapper containing the separately

packaged marijuana and hydrocodeinone pills as the items seized from the
appellant. Then, Officer Hickman provided that he immediately recorded the items

in the log book and turned them over to Officer Wallace. Wallace identified the

drugs and the cellophane wrapper as the items given to him by Officer Hickman that
he later sent to the crime lab. Moreover, the appellant testified that he normally

carried his hydrocodeinone pills inside a cellophane wrapper or plastic bag.



       The fact that Officer Hickman did not place identifying marks on the bag or

drugs goes to the weight and credibility of the evidence and not their admissibility.

Finding no abuse of the trial court’s discretion, this issue is without merit.



       The judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:




__________________________________________
GARY R. WADE, Presiding Judge




__________________________________________
DAVID H. WELLES, Judge


                                            9
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