         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 15, 2002 Session

            STATE OF TENNESSEE v. ROBERT WAYNE HERRON

                 Direct Appeal from the Criminal Court for Putnam County
                            No. 98-0294A    Leon Burns, Judge



                   No. M2002-00951-CCA-R3-CD - Filed January 22, 2003



The Appellant, Robert Wayne Herron, was convicted by a Putnam County jury of felony possession
of cocaine with intent to deliver, simple possession of cocaine, and possession of drug paraphernalia.
In this appeal, Herron contends that (1) the trial court erred in admitting evidence of his prior drug
activity in violation of Tennessee Rule of Evidence 404(b) and (2) the evidence is legally insufficient
to support these convictions. After review, we find these contentions are without merit. Although
not raised as error, we find Herron’s multiple convictions for simple possession and felony
possession, stemming from a single cocaine possession, violate principles of double jeopardy. The
misdemeanor cocaine conviction is, therefore, merged with the felony cocaine conviction. We
remand for entry of judgments of conviction consistent with this holding. Herron’s convictions for
felony possession with intent to deliver and misdemeanor possession of drug paraphernalia are
affirmed.


 Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed in Part; Reversed in Part;
                                    and Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN EVERETT
WILLIAMS, JJ., joined.

David Neal Brady, District Public Defender; H. Marshall Judd, Asst. Public Defender, for the
Appellant, Robert Wayne Herron.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W.
Turner, Assistant Attorney General; William Edward Gibson, District Attorney General; and John
Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.
                                                        OPINION

                                                 Factual Background

        The events leading to the Appellant’s arrest occurred on June 19, 1998, when two Putnam
 County Sheriff’s deputies went to an apartment searching for Kristie Flatt, who had been reported
missing by her father. Initially, their knocks at the apartment went unanswered. While waiting down
the road, the deputies saw two individuals, later identified as the Appellant and Nancy Maynard,
drive up and enter the apartment. The deputies returned to the apartment and, after a discussion with
the Appellant, Flatt appeared from another room and advised that she was alright. After leaving the
residence, the deputies ran a records check on the registration of the two vehicles parked outside the
apartment. The check revealed outstanding warrants for Nancy Maynard and Robert Herron.1

         The deputies then returned to the apartment for the third time. Approximately fifteen minutes
elapsed between the deputies’ second and third visits. Upon entering the apartment, they saw a crack
pipe and a cigarette box, later found to contain .1 grams of rock cocaine, on an end table. The
deputies also encountered the co-defendant, Gary Thomas, who advised that he rented the apartment.
Thomas then gave written permission to search the entire apartment. During the search of the
sparsely furnished apartment, numerous other incriminating items were discovered in various rooms:
(1) in the kitchen, a small pan containing alcohol, a can of alcohol, baking soda, and scouring pads;
(2) in the bedroom, drug paraphernalia including a glass pipe, smoking material, and a box of baking
soda; and (3) in the bathroom, a plastic bag containing seven individual bags of cocaine in a roll of
toilet paper. The seven individual bags were later determined to contain 9.7 grams of cocaine. All
four occupants in the apartment were arrested.

        On August 18, 1998, the Putnam County Grand Jury returned a three count indictment
against the Appellant2 for: (1) possession of cocaine over .5 grams with intent to deliver, a class B
felony; (2) manufacturing a schedule II substance over .5 grams, a class B felony; and (3) possession
of drug paraphernalia, a class A misdemeanor. A jury convicted the Appellant on April 30, 2001,3
of counts 1 and 3 as charged, and on count 2 of the lesser-included offense of simple possession.
The Appellant received an eight-year community corrections sentence on count 1 and concurrent
sentences of 11 months, 29 days on counts 2 and 3. The trial court subsequently denied the
Appellant’s motion for new trial on November 15, 2001, with this appeal following.



         1
           It was later determined that the outstanding warrant was not issued for the Appellant. Rather, it was issued
for ano ther man with the same name .

         2
           The indictment was also returned against Gary T homas, Kristie L ynn Flatt, and N ancy E lizabeth M aynard .
The record reflects that T hom as pled guilty to facilitating the sale of cocaine and received judicial d iversion. Disposition
of the ch arges against the remaining two co-defendants is not sho wn.

         3
          The Appellant was previously convicted on all counts on May 20, 1999. However, these convictions were set
aside in May, 2000, p ursuan t to an order granting the Ap pellant a new trial due to a Rule 16 violation.

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                                              Analysis

I. Rule 404(b)

        The Appellant contends that the trial court erred by permitting the co-defendant, Gary
Thomas, to testify about the Appellant’s prior acts of drug usage. Specifically, Thomas testified that
he and the Appellant regularly used crack cocaine during the four to five-week period they lived
together. At the apartment, Thomas stated that they used the cocaine “practically every day, every
night.” He further stated that he gave the Appellant thousands of dollars, which the Appellant used
to purchase cocaine for Thomas and himself. Their agreement was to jointly share all the drugs
purchased; “if I had it, you know, it was his; you know, if he had it, I would smoke it.” He further
stated that various guests in the apartment, particularly young women, were also given drugs.
Thomas also testified that they had “cooked” cocaine that morning, and he and the Appellant had
both smoked it. Before Thomas was permitted to give this testimony, a Rule 404(b) jury out hearing
was held. Following this hearing, the trial court found that the evidence was probative to establish
guilty knowledge. The court also found that the prejudicial impact of the Appellant’s prior drug use
was outweighed by its probative value. Immediately after Thomas testified, the trial court gave the
jury a limiting instruction as to the permissible use of the evidence. The Appellant argues that
admission of the evidence of his prior drug involvement violated Tennessee Rule of Evidence 404(b)
and constituted reversible error. We disagree.

        Although Rule 404(b) is generally regarded as being a rule of exclusion, it may equally be
viewed as a rule of inclusion, if the prior bad acts or crimes of the accused are admissible for
purposes other than to prove character. “Other purposes” have been defined to include: (1) motive;
(2) intent; (3) guilty knowledge; (4) identity of the defendant; (5) absence of mistake or accident; (6)
a common scheme or plan; (7) completion of the story; (8) opportunity; and (9) preparation. Collard
v. State, 526 S.W.2d 112, 114 (Tenn. 1975); see also Neil P. Cohen, et al., Tennessee Law of
Evidence § 404.6 (3d ed. 1995). Additionally, the “other purposes” must meet the relevancy
requirement of Rule 401; the defined purpose for introduction of the prior bad acts of the accused
must have a “tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. The issue of consequence before the jury in this case was whether the Appellant did (1)
knowingly possess cocaine with the intent to deliver; (2) knowingly manufacture a substance
containing cocaine; or (3) intentionally possess drug paraphernalia. We would also note that, even
if relevant, the evidence of prior bad acts should be withheld from the jury if the probative value is
outweighed by the danger of unfair prejudice or if the evidence would confuse or mislead the jury.
Tenn. R. Evid. 403, 404(b)(3). The Appellant asserted at the beginning of the trial that, although he
was present at the residence when the arrest was made, the drugs were not his and he “didn’t have
anything to do with [them].” The proof established that the Appellant had resided at the address
approximately four to five weeks prior to the date of his arrest. The co-defendant’s testimony of the
Appellant’s bad acts was limited to the four to five week period in which they shared the residence
and of their mutual possession of cocaine and drug paraphernalia, including the purchasing and
“cooking” of crack cocaine and its delivery to young women who visited the apartment. Indeed, the


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proof established that the cocaine, which is the subject of this prosecution, was “cooked” by the
Appellant during the fifteen minute interval between the deputies’ second and third visits to the
apartment. The cocaine was then smoked by the Appellant and Thomas and delivered to the two
female guests for their use.

        We agree with the trial court that evidence of the Appellant’s prior drug activities was
relevant to establish knowledge and intent to possess cocaine on the date in question. See generally
U.S. v. Tomberlin, 130 F.3d 1318 (8th Cir. 1997) (defendant put at issue both his knowledge of and
intent to possess drugs, asserting “mere presence” defense in prosecution for felony possession by
admitting occupation of bedroom but denying knowledge of drugs found at residence; thereby,
allowing admission of prior drug convictions). Generally, the admissibility of evidence under Rule
404(b) is within the discretion of the trial court. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).
We find no abuse of discretion with regard to the trial court’s ruling on this issue.

II. Sufficiency of the Evidence

        The Appellant contends that the evidence at trial was insufficient to support the jury’s
verdict.4 Specifically, he argues that the State failed to sufficiently corroborate the testimony of Gary
Thomas, an accomplice to this offense. It is well-settled that a conviction may not be based solely
upon the uncorroborated testimony of an accomplice. State v. Bigbee, 885 S.W.2d, 797, 803 (Tenn.
1994). This “very salutary rule” is designed to prevent the “obvious dangers” of allowing a
defendant to be convicted solely on the basis of an accomplice’s testimony. Sherrill v. State, 321
S.W.2d 811, 814 (Tenn. 1959). However, Tennessee law requires only a modicum of evidence in
order to sufficiently corroborate the testimony of an accomplice. State v. Copeland, 677 S.W.2d
471, 475 (Tenn. Crim. App. 1984).

       With respect to the nature, quality, and sufficiency of the evidence necessary to corroborate
an accomplice’s testimony, this court has held:

        The rule of corroboration as applied and used in this State is that there must be some
        evidence independent of the testimony of the accomplice. The corroborating evidence
        must connect, or tend to connect the defendant with the commission of the crime
        charged; and, furthermore, the tendency of the corroborative evidence to connect the

        4
            In his brief, the Appellant presents a two-fold challenge to his sufficiency argument which he frames as follows:

        B. Did the Trial Court Err in Not Directing a Judgment of Acquittal Based Upon T he Uncorroborated
        Testimony of a Co-Defendant?

        C. Did the Trial Court Err in Not Granting a Judgment of Acquittal Based Upon the Evidence Not
        Being S ufficient As a Ma tter of Law to Co nvict Defend ant of Any of the Counts?

W ith regard to the latter issue, the Appellant argues, “[T]he only evidence that he possessed any illegal drugs or
paraphernalia came from a co-defendant, Gary Thomas.” Because the Appellant’s issue as set forth in “B” and “C” of
his brief are clearly interrelated, we address them under the singular issue o f sufficiency o f the evidence.

                                                             -4-
       defendant must be independent of any testimony of the accomplice. The
       corroborative evidence must of its own force, independently of the accomplice’s
       testimony, tend to connect the defendant with the commission of the crime. . . . The
       evidence corroborating the testimony of an accomplice may consist of direct
       evidence, circumstantial evidence, or a combination of direct and circumstantial
       evidence. The quantum of evidence necessary to corroborate an accomplice’s
       testimony is not required to be sufficient enough to support the accused’s conviction
       independent of the accomplice’s testimony nor is it required to extend to every
       portion of the accomplice’s testimony. To the contrary, only slight circumstances are
       required to corroborate an accomplice’s testimony. The corroborating evidence is
       sufficient if it connects the accused with the crime in question.

State v. Griffis, 964 S.W.2d 577, 588-89 (Tenn. Crim. App. 1997) (citations omitted). Furthermore,
the jury is to determine the degree of evidence necessary to corroborate the testimony of an
accomplice. State v. Chris Billingsley, No. 01C01-9506-CC-00166 (Tenn. Crim. App. at Nashville,
May 16, 1996).

         The co-defendant, Thomas, testified that he and the Appellant had shared the apartment for
four to five weeks. They had been involved in buying, cooking, and using cocaine over the course
of this period. According to Thomas, he provided the money for the cocaine, the Appellant usually
purchased and cooked it, and they both possessed it for their mutual use and for use and delivery to
others. Thomas further testified that cocaine had been cooked and smoked by both he and the
Appellant on the day of their arrest. Thomas testified that he had put the cocaine in the toilet paper
roll that day with the intent to smoke it later and that the Appellant was aware the drugs were there.

         From a consideration of the proof in the record before us, we find the evidence sufficient to
corroborate the testimony of Gary Thomas. The proof reflects that the Appellant told the sheriff’s
deputy that he did in fact live in the apartment with Thomas. Additional corroboration is found from
the fact that the Appellant was seen entering the apartment and was present when the deputies found
cocaine and drug paraphernalia. The physical proof corroborates Thomas’ statements as well. Drug
paraphernalia was found throughout the apartment, including a pan found on the stove as if it had
just been used; supporting Thomas’ statement that crack cocaine had recently been cooked and
smoked. From this evidence, a rational jury could have concluded that the Appellant shared
constructive possession of the cocaine in the apartment with Thomas. See State v. Williams, 623
S.W.2d 121, 125 (Tenn. Crim. App. 1981); State v. Copeland, 677 S.W.2d at 476. Clearly taken
together, these facts give credence to Thomas’ statements; thus, the requirement of corroboration has
been satisfied. Having found that the accomplice testimony was sufficiently corroborated, the
Appellant’s argument must fail because, taken in the light most favorable to the State, the evidence
was more than sufficient to allow a rational trier of fact to find the essential elements of the offenses
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992).




                                                  -5-
        Notwithstanding our finding that the evidence is sufficient, we also find that the multiple
convictions for felony possession with the intent to deliver and simple possession violated principles
of double jeopardy. Our state and federal constitutions protect a person from being punished
multiple times for the same offense. State v. Mounce, 859 S.W.2d 319, 321 (Tenn. 1993). Upon
review we must first determine whether the Appellant’s convictions for count 1, felony possession
with intent to deliver 7.9 grams of cocaine found in the bathroom, and count 2, simple possession
of .1 grams of rock cocaine, constitute a single offense or a multiple offense.

        Although schedule II controlled substances were found in the various rooms of the apartment,
they were all found within the same residence. As such, we find that the Appellant’s act of
possession of a schedule II controlled substance represents a single act and, thus, a single offense.
See State v. Denton, 938 S.W.2d 373, 378-83 (Tenn. 1996) (reviewing double jeopardy under “same
offense” analysis); see also State v. Rhonda Patricia Mayes, No. M2001-004230CCA-R3-CD (Tenn.
Crim. App. at Nashville, July 18, 2002) (finding that multiple convictions based on possession of
cocaine in different parts of the same residence constitutes a single offense). Accordingly, we find
under plain error review that the Appellant’s multiple convictions for felony possession with the
intent to deliver cocaine and simple possession of cocaine are precluded by principles of double
jeopardy. See Tenn. R. Crim. P. 52(b).


                                          CONCLUSION

Based on the foregoing, we find that the admission of evidence of prior drug use by the Appellant
was proper. Moreover, we find the evidence legally sufficient to support the Appellant’s convictions
for possession of cocaine in excess of .5 grams with the intent to deliver and for possession of drug
paraphernalia. We find as plain error that the Appellant’s multiple convictions for felony possession
of cocaine and simple possession of cocaine, stemming for a single possession of cocaine, violative
of double jeopardy principles. Accordingly, the Appellant’s conviction for simple possession is
merged with his conviction for felony possession. The sentence imposed for simple possession is
vacated. This case is remanded for entry of judgments of conviction consistent with this opinion.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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