        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                            MARCH SESSION , 1998


STATE OF TENNESSEE,            )    C.C.A. NO. 02C01-9710-CR-00405
                               )
      Appellee,                )
                               )
                               )    SHELBY COUNTY
VS.                            )
                               )    HON. L.T. LAFFERTY
GEORGE ROSE,                   )    JUDGE
                               )
      Appe llant.              )    (Direct Appe al - Posses sion of
                               )    Controlled Substance)




FOR THE APPELLANT:                  FOR THE APPELLEE:

TONY N. BRAYTON                     JOHN KNOX WALKUP
Assistant Public Defender           Attorney General and Reporter
201 Poplar, Suite 2-01
Memphis, TN 38103                   DOUGLAS D. HIMES
                                    Assistant Attorney General
                                    425 Fifth Avenu e North
                                    Nashville, TN 37243

                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    CHARLES W . BELL
                                    Assistant District Attorney
                                    201 Poplar Avenue - Third Floor
                                    Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION
       Appellant George S . Rose wa s convicted on April 16, 1997 b y a jury in the

Shelby Coun ty Crim inal Co urt of po sses sion o f a con trolled substa nce, to wit:

cocaine, with intent to sell. As a Range I standard offender, Appellant was

sentenced to 210 days incarceration in the Shelby County Correctional Center

and five years probation.        The trial court also imposed a $2,000.00 fine.

Appellant presents the following issue for our consideration on this direct appe al:

whether the trial court denied Appellant his constitutional right to trial by jury by

refusing to instruct the jury on the lesser included offense of simple possession

of a controlled substance or casual exchange.

       After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                           I. FACTUAL BACKGROUND

       The proof shows that during the evening of July 20, 1995, the Organized

Crime Unit of the Memphis Police Department conducted a "buy-bust" drug

operation directed at apprehending street-level drug dealers. The focus of this

particular operation was the Whitehaven area, specifically, Shelby Drive and

Hodge in Memphis.

       Officer Michael Hardy testified at trial that he posed as the decoy officer on

July 20. Officer Hardy marked approximately $100.00 in "buy money" by writing

his initials in the corner of the bills.

       At approximately 8:15 P.M., Officer Hardy was parked at the corner of

Shelby and Hodge.        He testified that he motioned to a black female--later

determined to be Edna Strickland--to his car. After Strickland approached the

automobile, Officer Hardy inform ed her that he wanted to pu rchase a twe nty-



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dollar rock of coca ine. Ms. Strickland re plied that she kne w where to get it and

stepped into the car. She d irected Hard y to 4503 Neeley Road in Memphis.

Hardy testified that he handed Strickland twenty dollars of marked buy money

consisting of one ten -dollar bill and two five-dollar bills. At approximately 8:20

P.M., Strickland got out of the car and walked up to a window of the house. Ms.

Strickland knocked on the window, and a black male answered her knock,

appearing at the window. At trial, Officer Hardy identified Appellant as the same

person who appeared inside the house at the window. According to Officer

Hardy, Appellant wo re a white T-sh irt and d ark pa nts on the eve ning o f July 20.

Officer Hardy recalled that Appellant op ened the w indow and engaged in a short

conversation with Ms. Strick land. After the conversation, Appellant walked away

from the window for a short time. Upon returning, Appellant handed Strickland

the cocaine, and she gave Appellant the twenty dollars. Ms. Strickland returned

to the automobile. Officer Hardy testified that he never lost sight o f Strickla nd's

clasped hand conta ining th e obje ct given to her b y App ellant. Once inside the

vehicle, Strickland gave Hardy a white rock-like object. Officer Hardy drove down

the road a short distance and gave the "take-d own" signal. Su pport officers

immed iately arrived at the hous e and Ha rdy's car.

      On cross-examination, Officer Hardy testified that the distance between his

vehicle and the house was ap proxima tely fifty feet. Moreover, he stated that he

had an unobstructed side view of the transaction and that ample daylight enabled

him to see cle arly.   Hardy conce ded tha t he could not see th e item which

Appellant placed into Ms. Strickland's hand but reiterated that he never lost sight

of her hand after Appellant put the object into it. Officer Hardy stated that the buy

money was recovered from Appellant and was later reused.




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      Detective Byron Hardaway testified that he was a "take-down" officer at the

Neeley Road address on the evening of July 20, 1995. Hardaway explained that

the take-down officer's responsibility is to locate and detain suspects after the

decoy officer g ives the take-d own s ignal. After Officer Hardy gave the take-down

signa l, Hardaway and other officers approached the Neeley Road residence.

Officer Hardy had described Appellant over the radio as a black male with a

shoulder length jheri-curl and wearing a white T-shirt.       Detective Hardaway

knocked on the door, and Appellant's mother, Ruthie Rose, answered the door

and let in Hardaway and the other officers. At this time, Appellant was walking

down the hall behind his mother.       The officers took Appellant outside, and

Detective Hardawa y recovered the buy mo ney from Appella nt's right fron t pocket.

At this time, Appellant wore jogging pants.

      Detective Hardaway testified on cross-examination that he and the other

officers arrived at the house within one to two minutes follo wing the take-down

signa l. He stated that it was still daylight when he and the othe r officers arrived

but that it was getting dark. Detective Hardaway saw o nly Ap pellan t, Appe llant's

mother, and a younger boy inside the home. Hardaway explained that he did not

search Appella nt's bedro om be cause it was so filthy. He returned the buy money

to Officer Hardy.   Detective Hardaway identified Appellant as the individual

arrested at 4503 Neeley Road.

      Officer Phillip Fun derbu rk state d that h e was a take -down officer o n this

particular occasion. Funderbu rk testified that several m oments p assed be fore

anyone opened the door. Appellant's mother finally answered the door, and

Appellant and a younger boy stood behind her.              Appellant matched the

description of the person who made the exchange with Ms. Strickland. He had

a jheri-curl and wore a white T-shirt. Officer Fu nderburk testified that once

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outside, Detective Hardaway performed a pat-down search of Appellant and

recovered the buy money containing Officer Hardy's initials.

      On cross-examination, Officer Funde rburk testified that Ms. Ruthie Rose

consented to a search of her son's bedroom.              The search lasted for

approximately five to ten minutes.

      Officer Preston Morton testified that he was in charge of the holding and

testing of evidence. Officer Hardy took the rock-like object to Officer Morton in

the testing van. Officer Hardy watched as Morton performed a Ferguson field test

on a portion of the suspected crack cocaine. The test revealed the substance to

be cocaine.    Subsequently, the substance was sent to the University of

Tennessee Toxicology La boratory for further an alysis. Fried a Saha rovici, a

professional chem ist, testifie d that a nalysis revealed the substance to be

condensed cocaine in its free base form.

      Ms. Ruth ie Ros e, App ellant's mother, testified tha t five individuals were

inside the residence on July 20, 1995 when the police knocked on the door.

These five pe ople were herself; her husband, George Rose, Sr.; Appellant; her

grandson, Spence r Miller (also known as "Darrell"); and Appellant's friend,

Nathaniel Turner (also known as "Main") . According to M s. Rose's testim ony,

Appellant answered the door, and the police entered the residence and searched

Appe llant's room without permission. One of the officers stated that he had found

something and walked from the bedroom carrying a bag of lye soap. She denied

that drugs were being sold from her residence.According to Ms. Rose, Appellant

wore cut-off jogg ing pan ts with no p ockets and wore no shirt. She further stated

that officers recovered no money from Appellant. Ms. Rose further averred that

peop le visiting Appellant typically knocked on his window. Finally, Ms. Rose




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stated that she did not hear anyone knock at her son's window on the evening of

July 20 but believed that she would have heard the knock had someone done so.

      Cedric Brownlee, Appellant's cousin, testified that he visited the Neeley

Road residence on July 20 but left before the police arrived. Mr. Brownlee was

in Appe llant's room when Ms. Strickland came to the window. Brownlee testified

that Strickland and Appellant spoke briefly and that Strickland handed Appellant

something which he threw back out of the window. Brownlee departed before the

conversation between Appellant and Strickland ended. According to Bro wnlee 's

testimony, he never saw Appellant hand drugs to an yone a nd sa w no d rugs in

Appellant's room. Appellant wore cut-off sweat pan ts and no sh irt. As Mr.

Brownlee walked from the house, he saw Ms. Strickland retrieve something from

the ground.

      Spencer Miller, Appellant's nephew and Ms. Ruthie Rose's grandson,

testified that he was in the house when the police arrived. He also stated that

Appellant, Appellant's mother and father, and Ce dric Brownlee were also there

at that time. Appellant answered the door. According to Miller, Appellant wore

cut-off sweat pants with no pockets and wore no shirt. Miller averred that the

police officers recovered no drugs or money from Appellant. Additionally, Miller

admitted that prio r to trial, he had discussed the incident with Appellant, Ms.

Rose, and Mr. Brownlee.

      Appellant stated that he was at home on July 20, 1995. He testified that

his parents, Spencer Miller, Cedric Brownlee, and Nathaniel Turner we re there

as well. Mr. Brownlee was in Appellant's room when Edna S trickland c ame to the

window. Accord ing to Ap pellant, Edna Strickland was intoxicated and flirted w ith

him. Ms. Strickland allegedly told Appellant that she "had a trick in the car" and

that she was "trying to buy some dope." Strickland asked Appellant where she

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could get some drugs, and he told her that he did not know. Ms. Strickland threw

some money in the window, but Ap pellan t picke d it up and threw it back to her.

Appellant saw Stric kland retrie ve the m oney an d put it into he r pants.        She

walk ed away and got into a car.         Appellant denied selling cocaine to and

receiving mone y from M s. Stricklan d. He testified that he spoke to Strickland for

about four or five minutes and that he never left the window. The police arrived

at the residence about one-half hour later and arrested him. He stated that he

wore shorts with no pockets and was shirtless. According to Appellant, one

officer searched him and said that he had recovered the twenty dollars.

Howeve r, Appellant claimed that the police took nothing from him. Appellant

testified that wh en he aske d if he could see the mon ey, one of the officers

directed him to "shut up."       The police searched Appellant's room without

perm ission and d iscove red a b ag of h ome mad e lye so ap an d a m othba ll.



                            II. JURY INSTRUCTIONS

       Appe llant's o nly complaint on this direct a ppea l is that he was d enied his

constitutional right to tria l by jury b ecau se the trial court refused to instruct the

jury on the lesser included offense of simple possession of a controlled

substance or casual exchange. We disagree.

       Both the Sixth Ame ndm ent to th e Unite d State s Con stitution and A rticle I,

§ 9 of the Tenn essee C onstitution guaran tee an accu sed the right to trial by jury.

Encompassed within the constitutional right to trial by jury is the accused's right

to a corre ct and com plete c harge of the la w applicab le to the ca se. State v.

Phipps, 883 S.W .2d 138 , 142 (T enn. C rim. App . 1994); State v. Wright, 618

S.W.2d 310, 315 (Tenn. Crim. App. 1981). The trial court's failure to instruct the

jury on any lesser included offenses denies a defendant his constitutional right

                                          -7 -
to trial by jury. Wright, 618 S.W.2d 310, 315 (citing State v. Staggs, 554 S.W.2d

620, 626 (T enn. 1977 )).

       Tenn . Code Ann. § 4 0-18-11 0 provide s in part:

            (a) It is the duty of all judges charging juries in cases of
            criminal prose cution s for an y felony where in two (2) or more
            grades or classes of offense may be included in the
            indictme nt, to charge the jury as to all of the law of each
            offense included in the indictm ent, without any request on the
            part of the defendant to do so.
Tenn. C ode Ann . § 40-18-110 (a).

Tennessee Rules of Criminal Procedure 31(c) permits a defendant to be

convicted of "an offen se nec essarily inc luded in th e offense charge d. . . ." T ENN.

R. C RIM. P. 31(c).

       Tennessee case law is cle ar that a defen dant is entitled to a jury instruction

"on all lesser included offenses where `any facts. . . are susceptible of inferring

guilt of any lesser included o ffense.'" State v. T rusty, 919 S.W.2d 305, 310

(Tenn. 1996) (quoting State v. Wright, 618 S.W.2d 310, 315 (Tenn. Crim. App.

1981)).   In Howa rd v. State , the Ten nesse e Supr eme C ourt articula ted the

approp riate test for determining whether a particular offense is a lesser offense

nece ssarily included in the indictment. 578 S.W.2d 83, 85 (T enn. 19 79). "[A]n

offense is nece ssarily included in another if the elements of the greater offense,

as those elem ents a re set fo rth in the indictment, include, but are not congruent

with, all the elem ents of the lesser." Id. See T rusty, 919 S.W .2d 305 , 311

(approving the definition of "lesser included offense" as set forth in the Howard

decision).

      Tenn. Code Ann. § 39-17-418 provides in pertinent part: "(a) It is an

offense for a pe rson to know ingly possess or casually exchange a controlled

substance unless the substance was obtained directly fr om o r pursu ant to a valid

prescription or order of a practitioner while acting in the course of professional

                                          -8 -
practice." Tenn. Co de Ann. § 3 9-17-418(a ). Tenn. Code Ann. § 39-17-419

provides:

           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. It may be inferred from
           circumstances indicating a casual exchange among
           individu als of a small amount of a controlled substance or
           substances that the controlled substance or substances so
           exchanged were possessed not with the purpose of selling or
           otherwise dispensing in violation of the provisions of § 39-17-
           417(a). Such inferen ces shall be transmitted to the jury by
           the trial judg e's ch arge, a nd the jury will consider such
           inferences along with the nature of the substance possessed
           when affixing the p enalty.
Tenn. Code Ann. § 39-17-419.

      Appellant was co nvicted of p ossess ion of coc aine with in tent to sell.

Officer Michael Hardy purchased twenty dollars worth of cocaine as part of the

Organized Crim e Unit's "buy-bust" drug operation. Under similar circumstances,

this Cour t previo usly ha s refus ed to re quire that the jury be instructed as to

simp le possession of a controlled substance as a lesser included offense of

possession with intent to s ell. See, e.g., State v. William Howard Horton, No.

01C01-9312-CR-00435, Davidson Coun ty (Tenn. Crim. App., Nashville, October

6, 1994), perm. to appeal denied, (Tenn. 199 5); State v. J. S alts III, No. 01C01-

9306-CC-00181, Sum ner Co unty (Te nn. Crim . App., Nashville, March 29 , 1994).

The trial court was not required to instruct the jury as to the inferences which are

permitted by Tenn. Code Ann. § 39-17-419.

      The judgment of the trial court is affirmed.



                                 ____________________________________
                                 JERRY L. SMITH, JUDGE




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CONCUR:



 (See Below )
JOE B. JONES, PRESIDING JUDGE



_________________________________
GARY R. WADE, JUDGE




       The H onorab le Joe B . Jones d ied May 1, 1998 , and did n ot participa te
in this Opinion. We acknowledge his faithful service to this Court, both as a
member of the Court and as its Presiding Judge.




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