          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                             JUNE SESSION, 1999
                                                         FILED
                                                         October 21, 1999
STATE OF TENNESSEE,                 )   C.C.A. NO. 02C01-9811-CC-00363
                                    )                Cecil Crowson, Jr.
                                                    Appellate Court Clerk
            Appellee,               )
                                    )   TIPTON COUNTY
V.                                  )
                                    )
                                    )   HON. JOSEPH H. WALKER, JUDGE
MAURICE SHAW,                       )
                                    )   (POSSESSION OF COCAINE
            Appe llant.             )   WITH INT ENT T O DEL IVER)



FOR THE APPELLANT:                       FOR THE APPELLEE:

JASON G. WHITWORTH                       PAUL G. SUMMERS
Hotel Lindo Building, Suite 201          Attorney General & Reporter
114 W. Liberty Avenue
P.O. Box 846                             PATRICIA C. KUSSMANN
Covington, TN 38019-0846                 Assistant Attorney General
                                         2nd Floor, Cordell Hull Building
                                         425 Fifth Avenue North
                                         Nashville, TN 37243

                                         ELIZABETH T. RICE
                                         District Attorn ey Ge neral

                                         JAMES W. FREELAND, JR.
                                         Assistant District Attorney General
                                         302 Market Street
                                         Somerville, TN 38068




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       On July 7, 1997, the Tipton County Grand Jury indicted Appellant Maurice

Shaw for one count of possession of cocaine and one count of possession of .5 or

more grams of cocaine with intent to deliver. After a jury trial on March 10, 1998,

Appellant was convicted of posse ssion of .5 or more grams of cocain e with intent to

deliver. On May 11, 1998, the trial court sentenced Appellant as a Range I standard

offender to a term of nine years in the Tennessee Department of Correction.

Appellant challenges his conviction, raising the following issues:

       1) whether the evidence was sufficient to support Appellant’s conviction;

       2) whether Appellant’s conviction was invalid because it was based on the
       uncorroborated testimony of an accomplice; and

       3) whe ther A ppella nt rece ived ine ffective a ssista nce o f coun sel.

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



                                         I. FACTS




       K.C. We bb testified that on F ebruary 27, 199 7, Appe llant drove h is vehicle to

W ebb’s house. Appellan t then a sked We bb to a ccom pany h im on a drive to his

father’s house . At some point during the drive, Appellant told W ebb that they we re

being followed by the police. Appellant then pulled into the parkin g lot of S parky ’s

Exxon.



       Webb testified that as Appellant began opening the door to exit the vehicle,

Appellant took a bottle containing crack cocaine out of his pants pocket and he




                                             -2-
tossed it to Webb. Webb then tossed the bottle back to Appellant, but he did not

actually see where the bottle landed.



       Webb testified that he was charged with possession of cocaine as a result of

this incident. Webb also testified that he made a deal with the State in which he was

allowed to plead guilty to misd emean or possess ion in return for his test imon y at trial.



       Depu ty Shannon Beasley of the Tipton County Sheriff’s Department testified

that while he was in his patrol vehicle on February 27, 1997, he obse rved a vehicle

with a license plate number that he had been instructed to be on the looko ut for.

Shor tly thereafte r, Beasley learned that the license plate w as registered for a

different vehicle than the one that it was on. After learning this information, Beasley

stopped the vehicle for a registration violation. When Beasley approached the

vehicle, he saw that Appellant wa s the driver and W ebb was th e passen ger.



       Beasley testified that at this point, Appellant exited the vehicle and began

walking toward a store. Be asley calle d Appe llant back to the veh icle and asked for

his driver’s license. Beasley testified that Appellant was “extremely nervous” and

“[h]is hand was shaking uncontrollably ” when he displayed his driver’s license.

Appellant then stated that the license plate belonged to his van.



       Beasley testified that after he returned Appellant’s driver’s license and issued

a citation, Appellant still appeared to be “real nervous.”          Beasley then asked

Appellant whether he had any illegal contraband in the vehicle such as weapons or

drugs and Appellant stated that he did not. Beasley then asked Appellant whether




                                            -3-
he could se arch th e vehic le and Appe llant sa id, “Go ahea d.”         Afte r obtain ing

consent, Beasley asked Webb to get out of the vehicle and he began the search.



         Beasley testified that during the search of the vehicle, he discovered an

orange-colored pill bottle under the arm rest be tween the drive r’s and pass enge r’s

seats.     When Beasley opened the bottle, he observed a substance that he

recognized as twen ty-six rocks o f crack co caine.          B easley a lso testified that

Appellant and Webb were subsequently arrested and no materials used for the

consumption of cocaine were found on either Appellant or Webb.



         Beasley testified that after Appellant was arrested and advised of his rights,

Appellant waived his rights an d agree d to ma ke a state ment. In the statem ent,

Appellant admitted that he owned the vehicle in which the cocaine was found, but

he denied that the cocaine belonged to him. Appellant also stated that he did not

know where the cocaine had come from, but he assumed that it belonged to Webb

because Webb had previously discovered some cocaine on the side of the road.



         On cross-examination, Be asley te stified th at whe n he s toppe d App ellant’s

vehicle, he did not see either Appellant or Webb throw anything.



         Chief Jesse Poole of the Ato ka, Ten nesse e Police D epartm ent testified th at,

based on his training and experience, the street value of twenty-six rocks of crack

cocaine was approximately $500.



         Lisa Mays of the Tennessee Bureau of Inves tigation testified that the pill bottle

obtained during the search contained 5.6 grams of cocaine base. Mays testified that

                                             -4-
this amount of cocaine was approximately eleven times greater than the amount

involved in a typical case.



                        II. SUFFICIENCY OF THE EVIDENCE




       Appellant contends that the evidence was insufficient to support his conviction.

We disagree.



       When an appellant challenges the sufficiency of the evidence, this Court is

obliged to review th at challen ge acc ording to certain we ll-settled princ iples. A verdict

of guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State’s

witnesses and resolves all conflicts in the testimon y in favor of the State. State v.

Cazes, 875 S.W .2d 25 3, 259 (Ten n. 199 4). Alth ough an ac cuse d is orig inally

cloaked with a presumption of innocence, a jury verdict removes this presumpti on

and replaces it with one o f guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn.

1982). Hence, on app eal, the bu rden of p roof rests w ith Appe llant to dem onstrate

the insufficiency o f the conv icting evide nce. Id. On appeal, “the [S]tate is entitled

to the strongest legitimate view of the evidence as well as all reasonable and

legitimate inferences that m ay be drawn therefrom.” Id. Where the sufficiency of the

evidence is contested on appeal, the relevant ques tion for th e revie wing c ourt is

whether any rational trier of fact could h ave found the accused g uilty of every

element of the offen se beyo nd a rea sonab le doub t. Jack son v. V irginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). In conducting our evaluation

of the convicting eviden ce, this Court is precluded from reweighing or reconsidering

the evidenc e. State v. Morgan, 929 S.W .2d 380, 383 (Tenn. Crim . App. 1996 ).

Moreover, this Court may not substitute its own inferences “for those drawn by the

                                              -5-
trier of fact from circum stantial evidence.” State v. Matthews, 805 S.W.2d 776, 779

(Tenn. C rim. App. 199 0). Finally, Rule 13(e) of the Tennessee Rules o f Appella te

Procedu re provides, “findings of guilt in criminal actions whether by the trial court or

jury shall be set aside if the evidence is insufficient to support the findings by the trier

of fact beyo nd a rea sonab le doub t.”



       In order to establish that Appellant had committed the offense for which he

was convicted, the Sta te had to prove beyond a reasonable doubt that Appellant

possessed .5 or more grams of cocaine with the intent to deliver. Tenn. Code Ann.

§ 39-17-41 7(a)(4) (1997).



       W e conclude that when the evidence is viewed in the light m ost favora ble to

the State, as it mu st be, th e evide nce w as clea rly sufficie nt to su pport A ppella nt’s

conviction. Webb testified that when Appellant stopped the vehicle and began

opening the door, Appellant took a pill bottle out of his pocket and tossed it to Webb.

Webb also testified that he then threw the bottle back to Appellant, but he did not

actua lly see where it landed. Beasley testified that during the search of Appe llant’s

vehicle, he dis cover ed a p ill bottle th at con tained what a ppea red to b e twen ty-six

rocks of crack cocaine. Poole testified that the street value of twenty-six rocks of

crack cocaine was approximately $500. Mays testified that the pill bottle contained

5.6 grams of cocaine. Mays also te stified th at this a mou nt is approximately eleven

times greater than the amount of cocaine in a typical case.



       Appellant essentially argues that the evidence was insufficient because the

only proof that he ever possessed the cocaine came from the testimony of Webb and

Webb was simply not credible. Specifically, App ellant argues tha t no rational jury

                                             -6-
could have believed Webb’s testimony because his version of the facts w as illogic al,

he had a motive to lie, his testimony was contradicted by the testimony of Beasley,

and his testimony co ntained incon sistencies.         How ever, “[t]he credibility of the

witnesses, the weight to be given their testim ony, and the reco nciliation of c onflicts

in the evidence are matters entrusted exclusively to the jury as the triers of fact.”

State v. Cribbs, 967 S.W.2d 773, 793 (Tenn. 1998). The jury obviously believed

W ebb’s testimony that Appellant initially had the bottle of crack cocaine in his pock et.



       In this case, Appellant essentially asks us to reconsider the evidence and

substitute a verdict of no t guilty in place of the verdict found by the jury. That is not

our function. Instead, we conclude that a rational jury could have found beyond a

reaso nable doubt that Appellant had committed the offense of possessing .5 or more

grams of cocain e with inten t to deliver. See Tenn. R. App. P. 13(e). Appellant is not

entitled to relief on this issue.



                            III. ACCOMPLICE TESTIMONY




       Appellant contends that the trial court erred when it refused to grant his motion

for acquittal because the on ly evide nce a gains t him came from the uncorroborated

testimony of an accomplice. We disagree.



       In Tennessee, it is well-settled that a defendant cannot be convicted on the

uncorroborated testimon y of an ac comp lice. State v. Bigbee, 885 S.W.2d 797, 803

(Tenn . 1994). H oweve r,

       [t]his corroborative evidence may be direct or entirely circum stantia l, and it
       need not be adequate, in and of itse lf, to suppo rt a conviction; it is sufficient
       to meet the req uirem ents o f the rule if it fairly and legitim ately tends to connect

                                             -7-
       the defendant with the commission of the crime charge d. It is not necessa ry
       that the corroboration extend to every part of the accomplice's evidence. The
       corroboration need n ot be con clusive, bu t it is sufficient if this evid ence, of
       itself, tends to connect the defendant with the commission of the offense,
       although the evidence is slight and entitled, when standing alone, to but little
       conside ration.

Id.   In other words, “on ly slight circumstances are required to corroborate an

accomplic e's testimony.” State v. Griffis, 964 S.W .2d 577 , 589 (T enn. C rim. App.

1997). Whether an accom plice's testimony has been sufficiently corroborated is a

question for the jury. Bigbee, 885 S.W.2d at 803.



       W e conclud e that the other evidence in this case is sufficient to establish at

least the “slight circ umsta nces” n ecessa ry to corrob orate W ebb’s testim ony.

Beasley testified that when he stopped Appellant’s vehicle and pulled in behind him,

Appellant exited the vehicle and walked away. Beasley also testified that when he

asked Appe llant for h is driver ’s licens e, App ellant w as “ext reme ly nervo us” an d “[h]is

hand w as sha king unc ontrollably.” In addition, Beasley testified that even after he

returned Appellant’s driver’s license and g ave him the cita tion, Ap pellan t was “s till

real nervous.” Further, it is undisputed that Appellant was both the owner and the

driver of the vehicle in which Beasley found the cocaine.                 As this Court has

previo usly noted, constructive possession of a controlled substance can be inferred

to the person who had control over the vehicle in which it wa s found . State v. Brown,

915 S.W .2d 3, 7 (Ten n. Crim. App . 1995).



       W e conclude that while the above evidence may not have been adeq uate, in

and of itself, to sup port a co nviction, the evidenc e “fairly and le gitimately te nds to

connect [Appellant] with the commission of the crime c harge d.” Th us, W ebb’s




                                              -8-
testimony was s ufficien tly corro borate d. App ellant is not en titled to re lief on this

issue.



                           IV. ASSISTANCE OF COUNSEL




         Appellant contends that his conviction should be reversed because he

received ineffective assistance of counsel at trial. We disagree.



         Article I, Section 9 of the Tennessee Constitution provides "that in all criminal

prosecutions, the accused hath the right to be heard by himself and his counsel."

Tenn. Const. a rt I, § 9.     Similarly, th e Sixth Am endm ent to the U nited State s

Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistance of counsel for his defense." U.S. Const. amend.

VI. "The se co nstitutio nal pro visions afford to the ac cuse d in a criminal prosecution

the right to effec tive assista nce of co unsel." Henley v. State, 960 S.W.2d 572, 579

(Tenn. 19 97).



         In order to o btain relief on the basis of ineffective assistance of counsel, an

appellant “bears the burden of showing that (a) the services rendered by trial

counsel were deficient and (b) the de ficient performan ce was pre judicial.” Powers

v. State, 942 S.W .2d 551 , 558 (T enn. C rim. App . 1996). In order to show deficient

performance, an appellant must establish that the services rendered or the advice

given was below "the range of competence demanded of attorneys in criminal

cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In order to show

prejudice, an appellant must show a reasonable probability tha t, but for c ouns el's

ineffective performan ce, the res ult of the pro ceedin g would have be en differen t.

                                            -9-
Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674

(1984). “Because [an appellant] must establish both prongs of the test to prevail on

a claim of ineffective assistance of counsel, failure to prove either deficient

performance or resulting prejudice provides a sufficient basis to deny relief on the

claim."   Henley, 960 S.W .2d at 580 . "Indeed , a court n eed not address the

comp onents in any particular order or even address both if the defendant makes an

insufficient s howing of one co mpon ent." Id.



      First, Appellant contends that he received ineffective assistance of counsel

because during d efense couns el’s open ing statem ent, he sa id that Appellant was

guilty. The record indicates that during his opening statement, defense counsel

stated,

      Thank you for being here today. I think you’ve been carefu lly selected. Mr.
      Maurice Shaw is guilty. We say he’s presumed— Forgive me. Mr. Maurice
      Shaw is innocent. We say he is presumed innocent. And this is my
      opportu nity to talk abo ut what I ex pect the e vidence will show . . . .

Appellant has failed to show that this remark had any adverse effect on his defense.

Indeed, it is clear that this comment was completely inadvertent and counsel

imm ediate ly corrected his misstatement. Nothing in the record indicates that the jury

based its verdict on this obviously inadvertent remark rather than the evidence that

was presen ted durin g the trial. Th us, App ellant has failed to sho w that he was

prejudiced by this remark.



      Second, Appellant claims that he received ineffective assistance of counsel

because during defense counsel’s closing argum ent, he mad e reference to a story

about a bull-frog with wings and also stated that as Appellant’s friend, Webb was

more interested in helping himself than he was in helping Appellant. While these



                                         -10-
argum ents were not particu larly clear, Appellant has failed to show how he was

prejudiced by them. Indeed, the record indicates that defense counsel made many

of the same arguments in his closing argument that Appellant makes on appeal. For

instance, counsel argued that Webb’s version of the events was not logical, that

Webb was not credible, that Webb had a motive to lie, and that Appellant’s actions

indicated that he was inn ocent. W hen the closing argument is considered as a

whole, it is cle ar that Ap pellant wa s not pre judiced b y it.



       Third, Appellant contends that he received ineffective assistance of counsel

because in defense counsel’s closing argument, he referred to the trial as a “dope

case” and he used th e term “dope salesperson” when he attacked the logic of the

prose cutor’s closing argum ent. Howeve r, Appellant has failed to show how he was

prejudiced by these references and nothing in the record indicates that these

com men ts had any effe ct on th e outc ome of the tria l.



       Finally, Appella nt claims that he rec eived ineffe ctive assista nce of counsel

because defense counsel failed to obtain the prior criminal record of Webb.

Appellant argues that the fact that his coun sel failed to investigate Webb’s criminal

record is shown by the following statement counsel made during a bench conference

during his cross-examination of Webb:

       W e have recen tly got in touch with wha t we think is a prior record on this
       gentleman. I’d like to ask for a few moments to go in the Clerk’s office to see
       if my office h as faxed it in here yet.

Contrary to Appellant’s assertions, this stateme nt does not clearly indicate that

defense couns el failed to inve stigate Webb’s criminal record. Withou t an evidentiary

hearing on the issue, any conclusion about the extent of defense counsel’s pretrial

preparation would be mere speculation. More importantly, there is no proof in the

                                             -11-
record that We bb ac tually ha d a prio r crimin al reco rd. Be caus e there is no proof that

Webb had a prior criminal record, Appellant’s claim that he was prejudiced by

defense counsel’s failure to obtain the alleged criminal record is pure conjecture.



       In short, Appellant has failed to demonstrate that he was prejudiced by any of

the allege d defic iencie s of his c ouns el at trial. There fore, App ellant has failed to

show that he received ineffective assistance of counsel. Appellant is not entitled to

relief on this issue.



       Accordingly, the judgment of the trial court is AFFIRMED.




                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID H. WELLES , Judge


___________________________________
NORMA McG EE OGLE, Judge




                                            -12-
