         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 1, 2003

               STATE OF TENNESSEE v. THOMAS L. JACKSON

                    Appeal from the Circuit Court for Lauderdale County
                         No. 7248    Jon Kerry Blackwood, Judge



                     No. W2002-01631-CCA-R3-CD - Filed June 10, 2003


A Lauderdale County Jury convicted the Appellant, Thomas L. Jackson, of possession of contraband
in a penal institution, a class C felony. On appeal, Jackson argues that the evidence was insufficient
to support his conviction. After review, we conclude that the proof is sufficient to establish that
Jackson knowingly possessed the marijuana found in his cell. Accordingly, the judgment of
conviction is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and THOMAS
T. WOODA LL, J., joined.

Didi Christie, Brownsville, Tennessee, for the Appellant, Thomas L. Jackson.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Braden H.
Boucek, Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Tracey Anne
Brewer, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

        Approximately a week before November 29, 2001, Bobby Reynolds, Jr., an employee of the
West Tennessee Security Prison, was monitoring phone calls and “heard where an inmate, [Robert
Stokes,] had supposedly been making a drug deal, bringing drugs into the institution.” However,
Reynolds was unable to determine the exact date Stokes intended to bring the drugs into the prison.
On the morning of the 29th, Reynolds, along with Corporal Michael Ottinger, a correctional officer,
reviewed a phone call from Stokes to his wife, Monica, made the prior evening around 8:30 p.m.
According to Reynolds, Stokes “told his wife that he wanted ten dollars put on his thing.” Money
is not needed inside the penitentiary after 8:30 p.m. Ottinger testified that, in his experience, “ten
dollars on my stuff” was a method of arranging a drug deal. During the conversation between Stokes
and his wife, the Appellant “got on the phone, there was some three-ways made to some people that
he knew on the streets. . . . There was some meetings set up between these individuals and Monica
Stokes, . . . and it was also – instructions were given in the particular call to be sure and use gray duct
tape.” Ottinger testified that the Appellant “was the one in making the – setting up the deal for these
other two individuals to meet Monica Stokes.”

       After reviewing the telephone conversation, Reynolds went and “shook down” the cells of
Stokes and the Appellant. Reynolds found a cell phone inside Stokes cell, and he then proceeded
to the Appellant’s cell, where he “found a large amount of marijuana right inside on the shelf.”
Regarding the search of the Appellant’s cell, Reynolds testified as follows:

                  I was waiting for the pod officer to get there to open the door for me, and I
         was looking through the window, and I seen [the Appellant] over there where his
         shelf is with his clothes on fumbling with it, so when the pod officer opened the door,
         I walked past [the Appellant] and went over there, and he had two gray gloves – they
         was vinyl or something – and I looked inside of them and there was two big wads of
         gray tape there. . . .”

        Thereafter, the Appellant waived a Department of Correction disciplinary hearing and pled
guilty to possession of marijuana. At trial, the Appellant stated, he pled guilty in order to protect his
cellmate, who was due to be released in two weeks. The Appellant also claimed that, when he spoke
to Monica Stokes, he was arranging a date for his brother. According to the Appellant, Stokes left
the gloves in the Appellant’s cell, and he was unaware that they contained marijuana.

        The case was subsequently presented to the Grand Jury of Lauderdale County, and the
Appellant was indicted for possession of contraband in a penal institution and possession of
marijuana with intent to sell. Following a jury trial, the Appellant was found guilty of possession
of contraband in a penal institution. The Appellant subsequently filed a motion for judgment of
acquittal and/or new trial, which was denied.1 The Appellant now appeals contending that: (1) the
evidence is insufficient to support his conviction, and (2) the trial court erred in denying his motion
for judgment of acquittal.2

         1
          According to the motion for judgment of acquittal and/or new trial, the Appellant moved the trial court for
judgment of acquittal following the State’s proof. However, after a review of the record, it appears that the motion for
judgment of acquittal was only mad e in conjunction with the motio n for new trial and not following the State’s proof as
asserted by the App ellant.

         2
           Although the A pp ellant challenges the trial court's ruling regarding his motion for judgment of acquittal and/or
new trial, the Appellant has failed to include in the record for our review the transcript of the hearing on the motion.
"W hen an acc used seeks appe llate review of an issue in this co urt, it is the duty of the accused to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the issue[] which forms the basis of the
app eal." State v. Taylor, 992 S.W .2d 9 41, 9 44 (Tenn. 19 99). Accordingly, when this court is presented with an
incom plete record, which do es not contain a transc ript of the relevant proceed ings, this co urt is precluded from
                                                                                                                 (continued...)

                                                             -2-
                                                      ANALYSIS

        A motion for judgment of acquittal raises a question of law for the trial court's determination.
State v. Hall, 656 S.W.2d 60, 61 (Tenn. Crim. App. 1983). When the trial court is presented with
a motion for judgment of acquittal, the only concern is the legal sufficiency, as opposed to the
weight, of the evidence. State v. Blanton, 926 S.W.2d 953, 957 (Tenn. Crim. App. 1996). Appellate
courts are ill-suited to assess whether the verdict is supported by the weight and credibility of the
evidence. State v. Moats, 906 S.W.2d 431, 435 (Tenn. 1995). For that reason, in Tennessee, the
accuracy of a trial court's thirteenth juror determination is not a subject of appellate review. Id.;
State v. Burlison, 868 S.W.2d 713, 719 (Tenn. Crim. App. 1993). Instead, once the trial court
approves the verdict as the thirteenth juror, appellate review is limited to determining the sufficiency
of the evidence. Burlison, 868 S.W.2d at 719.

        Accordingly, the standard by which the trial court determines a motion for judgment of
acquittal at the end of all the proof is, in essence, the same standard which applies on appeal in
determining the sufficiency of the evidence after a conviction; that is, whether "any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt." State v.
Gillon, 15 S.W.3d 492, 496 (Tenn. Crim. App. 1997) (citing Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781 (1979)). A jury conviction removes the presumption of innocence with which a
defendant is cloaked and replaces it with one of guilt, so that on appeal, a convicted defendant has
the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). 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). Likewise, it is not
the duty of this court to revisit questions of witness credibility on appeal, that function being within
the province of the trier of fact. State v. Holder, 15 S.W.3d 905, 911 (Tenn. 1999); Burlison, 868
S.W.2d at 719. Moreover, the State is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn.
1992). These rules are applicable to findings of guilt predicated upon direct evidence, circumstantial
evidence, or a combination of both direct and circumstantial evidence. State v. Matthews, 805
S.W.2d 776, 779 (Tenn. Crim. App. 1990).

        The Appellant argues that the evidence was not sufficient to prove that he knowingly
possessed the contraband. Specifically, he contends that “no proof was presented that the marijuana
belonged to [him] or that he knew the marijuana was in his cell.” To convict the Appellant, the State
was required to prove that: (1) he possessed a controlled substance in a penal institution; (2) he did
so without express written consent; and (3) he acted knowingly. Tenn. Code Ann. § 39-16-201(a)(2)
(1997); 7 TENNESSEE PRACTICE, TENNESSEE PATTERN JURY INSTRUCTIONS-CRIMINAL 23.01 (Comm.
of the Tenn. Judicial Conference 5th ed. 2000). Proof that a possession is knowing will usually


         2
          (...continued)
considering the issue and m ust con clusively presume that the trial court's ruling was correct. State v. Griffis, 964 S.W.2d
577, 593 (Tenn. Crim. App . 199 7); State v. Matthews, 805 S .W.2d 77 6, 784 (Tenn . Crim. App . 1990 ). Nevertheless,
from the record before us, we can determine that the trial court properly denied the motion.

                                                            -3-
depend on inference and circumstantial evidence. State v. Timothy E. Higgs, No. W1999-01534-
CCA-R3-CD (Tenn. Crim. App. at Jackson, July 24, 2000) (citing United States v. Pierre, 932 F.2d
377, 392 (5th Cir. 1991); State v. Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995)). A conviction
of possession of drugs may be based upon either actual or constructive possession. State v. Cooper,
736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). The State may establish constructive possession by
demonstrating that a defendant has the power and intention to exercise dominion and control over
the controlled substance either directly or through others. State v. Transou, 928 S.W.2d 949, 956
(Tenn. Crim. App. 1996) (citations omitted). In essence, constructive possession is the ability to
reduce an object to actual possession. State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App.
1991) (citations omitted).

        In the present case, the jury could have found the elements of the offense beyond a reasonable
doubt. Reynolds and Ottinger testified that, after reviewing the phone call, the Appellant was the
individual who arranged for drugs to be smuggled into the institution. During the phone
conversation, there were instructions given to package the marijuana in duct tape. Reynolds testified
that, while he was waiting to enter the Appellant’s cell, the Appellant “[l]ooked like he was trying
to put something under some pants or a shirt or something.” A large amount of marijuana, 95.8
grams, was inside the gloves found in the Appellant’s cell. No consent was given by the chief
administrator to allow the drugs into the institution. Furthermore, the Appellant admitted his guilt
in the Department of Correction proceedings. We find that the evidence presented at trial was more
than sufficient to support the Appellant's conviction. Accordingly, the judgment of conviction for
possession of contraband in a penal institution is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -4-
