                                                                                         03/05/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 16, 2019

           STATE OF TENNESSEE v. GEORGE RONALD PEREZ

              Appeal from the Circuit Court for Montgomery County
             No. CC-17-CR-1048        William R. Goodman, III, Judge
                    ___________________________________

                           No. M2018-01854-CCA-R3-CD
                       ___________________________________


Defendant, George Ronald Perez, was indicted by the Montgomery County Grand Jury
for possession with intent to sell or deliver 0.5 ounce or more of marijuana, simple
possession of cocaine, simple possession of methamphetamine, possession of drug
paraphernalia, and possession of a firearm during the commission of a dangerous felony.
Defendant entered open guilty pleas to felony possession with intent to sell or deliver 0.5
ounce or more of marijuana, simple possession of cocaine, simple possession of
methamphetamine, and possession of drug paraphernalia. A bench trial was conducted
on the charge of possession of a firearm during the commission of a dangerous felony,
and Defendant was found guilty. The trial court sentenced Defendant to consecutive
sentences of one year for possession with intent to sell 0.5 ounce or more of marijuana
and three years for possession of a firearm during the commission of a dangerous felony.
The trial court sentenced Defendant to 11 months and 29 days for each of his remaining
convictions and ordered those sentences to run concurrently with his three-year sentence.
Defendant’s sole issue on appeal is whether the evidence was sufficient to support his
conviction for possession of a firearm during the commission of a dangerous felony.
Having reviewed the entire record, we conclude that the evidence was sufficient.
Accordingly, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Gregory Smith, Clarksville, Tennessee (on appeal) and Edward E. DeWerff, Clarksville,
Tennessee (at trial) for the appellant, George Ronald Perez.
Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and Dan Brollier,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Guilty pleas

      The State summarized the factual basis for Defendant’s guilty pleas to possession
with intent to sell or deliver 0.5 ounce or more of marijuana, simple possession of
cocaine, simple possession of methamphetamine, and possession of drug paraphernalia as
follows:

        In these counts on the 21st of May 2017, Clarksville Police Officers
        responded to a report of a fight involving several people at an area near
        the Defendant’s residence in – on Union Hall Road, in Clarksville,
        Montgomery County.

        Sergeant Jeffrey Jackson was one of those officers who responded to
        that. They actually followed some tracks in the grass, I think, in the dew
        of the grass, and – to the area where the Defendant’s apartment was.

        And the Defendant was either coming out of the door or right there at his
        door of his apartment when Sergeant Jackson walked into that entryway
        area.

        He was bleeding at that time. Officer Jackson went to talk to him and
        ask him about it. He could smell the obvious odor of marijuana coming
        from the apartment itself.

        They asked for consent to search. [Officers] were denied consent to
        search the apartment. They did secure the apartment, doing a – a quick
        walk-through to make sure there were no people in the apartment [a]nd
        then got a search warrant.

        A search warrant was executed. They did search the apartment. They
        found numerous items of drug paraphernalia, some bongs that are used
        for – possession, I think, of a pipe, also numerous baggies and several
        bags [ ] containing marijuana. Some were – and we’re going to probably
        talk about some of that in the proof on the rest of this. But a substantial
        amount of drug paraphernalia and marijuana was found in the residence.
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        I believe the marijuana tested out. They actually tested 216 grams, and
        there was an additional 177 grams that were not tested. So the total
        weight was under two pounds, but it was a substantial amount, well over
        the felony minimum on this. That would be [the] proof.

        There were also some pills found that were the . . . M.D.M.A. pills and a
        – a small amount of cocaine that was less than half a gram of cocaine
        that was found in a little baggie that was, I think in the dresser drawer of
        the searched area.

Bench trial

        On the same day, immediately following the entry of Defendant’s guilty pleas, a
bench trial commenced on the charge of possession of a firearm during the commission
of a dangerous felony. At the start of the bench trial, in its opening statement, the
prosecutor stated that “the issue in this case is, did [Defendant] possess that handgun with
the intent to go armed.” The prosecutor announced, “the State . . . will put on pro[of] that
the Defendant was also in possession of a handgun at the time that these other items were
found in his apartment and the items to which he’s pled guilty on felony charges in
particular.” Defense counsel framed the issue as whether or not the State could “establish
a nexus between” possession of marijuana with intent to sell or deliver and possession of
a handgun with the intent to go armed.

        Regarding evidence of felony possession of marijuana with intent to sell or
deliver, the predicate felony for the firearm possession charge, the prosecutor stated,
“unless the Court wants me to, I don’t actually intend I think to introduce the marijuana
or other drugs, since they’ve been stipulated to and admitted at this point.” Defense
counsel acknowledged that Defendant had pleaded guilty to the underlying felony, and
the trial court stated, “that’s established.” Notably, defense counsel did not challenge the
State’s assertion of a stipulation.

       Officer Jeffrey Jackson, of the Clarksville Police Department, testified that on
May 21, 2017, he responded to a report of a fight involving several people near
Defendant’s residence. When Officer Jackson arrived at the apartment complex, he
followed some footprints in the grass to the side of the building. As he entered the
“breezeway,” he observed Defendant coming out of his apartment. Defendant was
bleeding, and Officer Jackson smelled an odor of marijuana coming from inside the
apartment. Officer Jackson entered the apartment to make “sure no one else was in the
apartment.”

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       In one of the bedrooms, he observed a broken window, plastic bags containing
what looked like marijuana, white powder, a glass pipe, cash, and a bong. There were
two people in the living room. Officer Jackson detained Defendant and asked him for
consent to search the apartment, and Defendant refused consent. A search warrant was
obtained and executed. In the same bedroom where Officer Jackson observed the drugs
and paraphernalia, he found a gun under the mattress. Officer Jackson testified that he
found a “large amount of marijuana” in a dresser near the bed.

        Officer Ryan Steinlage, of the Clarksville Police Department, assisted in executing
the search warrant. He testified that the gun found under a mattress in Defendant’s
apartment was a handgun loaded with a magazine containing 12 rounds of ammunition.
He testified that a plastic jar containing eight bags of marijuana was found inside
Defendant’s dresser. Police also found digital scales, packages of unused plastic bags,
and over $1,300 in cash in various locations in the apartment. Photographs of the items
found during the search were introduced into evidence by the State. Officer Steinlage
testified that two other people were present in the apartment, but there did not appear to
be anyone other than Defendant living in the apartment.

        Defendant testified that on May 21, 2017, he “got jumped by several individuals”
outside of his apartment. He testified that police arrived and found drugs and
paraphernalia inside his apartment. Defendant testified that he had been smoking
marijuana since the age of 11 or 12 and that he sold marijuana only to his friends when
they came to his apartment to smoke with him. Defendant testified that he had been
employed full-time at Electrolux for almost five years. He testified that the handgun
police found under his mattress “was used for nothing more than home protection” and
that it “never left [his] house.” He testified that when his friends came over to smoke and
buy marijuana, they did it in his living room. On cross-examination, Defendant
acknowledged that he kept his gun near where he kept a large amount of marijuana in his
dresser. Defendant agreed that selling drugs is “a dangerous business” and that it was not
unusual for drug dealers to carry weapons. He denied that it was the reason he kept a
loaded gun in his apartment.

       At the conclusion of the bench trial, the trial court found Defendant guilty of
possessing a firearm during the commission of a dangerous felony and sentenced
Defendant to three years to be served at 100 percent. Defendant timely filed the instant
appeal, challenging the sufficiency of the evidence to sustain his conviction.

Analysis

       On appeal, a conviction removes the presumption of the defendant’s innocence
and replaces it with one of guilt, so that the defendant carries the burden of demonstrating
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to this court why the evidence will not support the findings of the trier of fact. See State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The defendant must establish that no
reasonable trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P.
13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibility of
witnesses and the weight and value to be afforded the evidence, as well as all factual
issues raised by the evidence, are resolved by the trier of fact. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). In a bench trial, the trial judge, as the trier of fact, must resolve
all questions concerning the credibility of witnesses and the weight and value to be given
the evidence, as well as all factual issues raised by the evidence. State v. Ball, 973
S.W.2d 288, 292 (Tenn. Crim. App. 1998). The trial judge’s verdict carries the same
weight as a jury verdict. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978); see also
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).

       The guilt of a defendant, including any fact required to be proven, may be
predicated upon direct evidence, circumstantial evidence, or a combination of both direct
and circumstantial evidence. See State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.
Crim. App. 1999). Even though convictions may be established by different forms of
evidence, the standard of review for the sufficiency of that evidence is the same whether
the conviction is based upon direct or circumstantial evidence. See State v. Dorantes,
331 S.W.3d 370, 379 (Tenn. 2011).

       “It is an offense to possess a firearm with the intent to go armed during the
commission of . . . a dangerous felony.” T.C.A. § 39-17-1324(a). Possession of a
controlled substance with the intent to sell or deliver is one of the applicable listed
dangerous felonies. T.C.A. § 39-17-1324(i)(1)(L). As pertinent to our review, marijuana
is a Schedule VI controlled substance. T.C.A. § 39-17-415(a)(1).

       Possession may be constructive as well as actual. State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001); State v. Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996);
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). “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. In
essence, constructive possession is the ability to reduce an object to actual possession.”
State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). “Elements of
possession for purposes of constructive possession are questions of fact for the [finder of

                                           -5-
fact]. . . .” State v. Ronald Killebrew, No. W2003-02008-CCA-R3-CD, 2004 WL
1196098, at *3 (Tenn. Crim. App. May 26, 2004), no perm. app. filed.

       On appeal, Defendant asserts that the evidence showed that he possessed a large
quantity of marijuana only “for personal consumption” and not with the intent to sell,
manufacture, or deliver. This claim is without merit. The guilty pleas to four of the
charges, including Defendant’s plea of guilty to the felony drug offense, occurred on the
same date of, and prior to, the bench trial for the firearm offense which is the subject of
this appeal. As observed above, it is apparent that there was a stipulation by the parties
that Defendant’s guilty plea to count one of the indictment proved that Defendant
possessed the marijuana with the intent to manufacture, deliver, or sell it, which is a
felony. No further proof was necessary as to this element of the firearm offense –
possession of the firearm with intent to go armed during the commission of a dangerous
felony. Even without proof of a felony drug conviction by the guilty plea, the evidence
presented was still sufficient to prove this element of the offense.

        Police found marijuana that was divided into small quantities, plastic sandwich
bags, digital scales, and over $1,300 cash inside Defendant’s apartment. “It may be
inferred from the amount of a controlled substance or substances possessed by an
offender, along with other relevant facts surrounding the arrest, that the controlled
substance or substances were possessed with the purpose of selling or otherwise
dispensing.” T.C.A. § 39-17-419; see State v. George P. Watkins, III, No. W2015-
02095-CCA-R3-CD, 2017 WL 1294890, at *7 (Tenn. Crim. App. Apr. 5, 2017), no perm.
app. filed.

       Next, Defendant argues that the evidence is insufficient to show that he intended
to go armed during the commission of a felony. Here, it was clear, and Defendant does
not contest, that the handgun found under his mattress belonged to Defendant and that he
had the ability to “exercise dominion and control” over it. Additionally, the fact that the
handgun was loaded and “within the immediate proximity of the contraband established
the [D]efendant’s intent to go armed and demonstrated a nexus between the firearm and
the drugs.” State v. Ronnie Paul Trusty, No. W2012-02445-CCA-R3-CD, 2013 WL
3488150, at *4 (Tenn. Crim. App. July 11, 2013), no perm. app. filed (quoting Shaw, 37
S.W.3d at 903) (internal quotation marks omitted).

      Defendant asserts that “[b]asic logic indicates that if [he] was intending to go
armed, he would have used the gun to defend himself” against his attackers. However,
Defendant doesn’t cite any cases to support his argument. The State cites several cases in
which this court found the evidence sufficient to support the defendants’ convictions for
possession of a firearm during the commission of a dangerous felony with facts
analogous to the facts in this case. See Trusty, 2013 WL 3488150, at *4; State v. Tasha
                                           -6-
Briggs, No. W2014-01214-CCA-R3-CD, 2015 WL 5813664, at *6 (Tenn. Crim. App.
Oct. 6, 2015, no perm. app. filed (evidence was sufficient where the defendant sold
marijuana from her apartment and kept a loaded gun under a couch cushion in her living
room); State v. Anthony Miller, No. 2016-00402-CCA-R3-CD, 2017 WL 244115, at *1
(Tenn. Crim. App. Jan. 20, 2017), no perm. app. filed (evidence was sufficient where the
police found a shoebox containing two handguns in the defendant’s closet and a large
quantity of marijuana, a digital scale, and a box of sandwich bags in the headboard of the
defendant’s bed).

       Although Defendant was not in actual possession of the gun when police
approached him following whatever fight took place, the record clearly establishes that
Defendant possessed a loaded handgun in close proximity to a large quantity of
marijuana. Whether or not Defendant used the gun during his “attack” is unrelated to the
question of whether Defendant possessed a gun with intent to go armed during the
commission of possession with intent to sell, manufacture, or deliver marijuana. We
conclude that the evidence was sufficient to sustain Defendant’s conviction. Defendant is
not entitled to relief.

                                    CONCLUSION

      Based on the foregoing, the judgments of the trial court are affirmed.

                                  ____________________________________________
                                  THOMAS T. WOODALL, JUDGE




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