        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 23, 2014

       STATE OF TENNESSEE v. RODERICK JERMAINE McALPIN

               Direct Appeal from the Criminal Court for Knox County
                         No. 100681    Steven Sword, Judge


                 No. E2013-02267-CCA-R3-CD - Filed October 2, 2014


Defendant, Roderick Jermaine McAlpin, was indicted by the Knox County Grand Jury for
possession with intent to sell more than .5 grams of cocaine within 1,000 feet of a public
school; possession with intent to deliver more than .5 grams of cocaine within 1,000 feet of
a public school; possession with intent to sell more than .5 grams of cocaine within 1,000 feet
of a child care agency; possession with intent to deliver more than .5 grams of cocaine within
1,000 feet of a child care agency; criminal trespass, and public intoxication. Due to an error
in the indictment, the trial court dismissed the public intoxication charge at the State’s
request. Defendant was convicted by a jury of the remaining offenses. The four felony drug
convictions were merged into one Class A felony conviction of possession with intent to sell
more than .5 grams of cocaine within 1,000 feet of a public school. The trial court sentenced
Defendant to serve 16 years’ incarceration for this conviction and 30 days, concurrently, for
the conviction of criminal trespass. On appeal, Defendant contends that the trial court erred
by denying his motion to suppress the crack cocaine, and that the evidence was insufficient
to support his convictions. Finding no error, we affirm the judgments of the trial court.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Roderick Jermaine McAlpin.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; Philip Morton and Hector
Sanchez, Assistant District Attorneys General, for the appellee, the State of Tennessee.
                                         OPINION

Facts

        Officer Joel Ascencio of the Knoxville Police Department testified that on September
11, 2012, he was patrolling the area of the Western Heights housing project. At around 3:30
a.m., he observed Defendant walking between some buildings. Officer Ascencio approached
Defendant to ask if he lived there. Officer Ascencio testified that the area is a “high crime”
area and that the housing project maintains a “no trespass list” to keep non-residents from
being on the property. As Officer Ascencio approached Defendant, he saw Defendant make
a throwing motion with his hand. Officer Ascencio asked Defendant if he lived there.
Defendant had a strong odor of alcohol on his breath. Officer Ascencio discovered that
Defendant was on the no trespass list and had already been “served” with notice not to
trespass. Officer Ascencio told Defendant to sit on the curb in front of his cruiser while
Officer Ascencio waited for another officer to arrive. Officer Ascencio walked over to the
area where Defendant had been standing and found a bag of crack cocaine lying in the grass.
He testified that the bag was on top of the grass and was “not embedded at all.” Officer
Ascencio testified that less than ten minutes had elapsed between the time he saw Defendant
make the throwing motion and the time he found the crack cocaine. Officer Ascencio did
not see any other pedestrians or motorists in the area at the time. Defendant did not have any
drug paraphernalia on his person. Officer Ascencio used a field test kit to weigh the crack
cocaine, which weighed 2.8 grams. Officer Ascencio testified that the consistency and size
of the individual rocks indicated to him that they were intended to be sold or delivered.

       Sergeant Joshua Shaffer was qualified by the trial court to testify as an expert in the
area of drug investigation. Sergeant Shaffer examined the crack cocaine found by Officer
Ascencio. He determined that the crack cocaine was “probably freshly cooked” because
there was “still quite a bit of what appears to be particles sticking probably from the
moisture.” Sergeant Shaffer testified that the bag contained one “larger chunk” and “some
smaller individual pieces that ha[d] been broken off.” Sergeant Shaffer testified that an
individual “rock,” weighing .1 to .2 grams would be worth $20. He estimated the value of
the crack cocaine found by Officer Ascencio, once broken into individual rocks, would be
worth between $280 and $560, depending on the size and number of individual rocks.
Sergeant Shaffer opined that based on his examination of the evidence, the crack cocaine was
intended for sale or delivery.




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Analysis

Motion to suppress

       Defendant contends that the trial court erred by denying his motion to suppress the bag
of crack cocaine. Defendant argues that Officer Ascencio had no objective reason to suspect
Defendant was engaged in any unlawful activity when Officer Ascencio initially stopped to
investigate why Defendant was in the Western Heights housing project.

        An appellate court may consider the proof presented at the suppression hearing and
at the trial when determining whether the trial court properly granted or denied a motion to
suppress. State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998). It is well-established that
“a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence
preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). However, this
court’s review of a trial court’s application of the law to the facts is de novo with no
presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); (citing State
v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629
(Tenn. 1997)). The defendant bears the burden of showing that the evidence preponderates
against the trial court’s findings. Odom, 928 S.W.2d at 23; Yeargan, 958 S.W.2d at 629.

       The Fourth Amendment to the United States Constitution and article I, section 7 of
the Tennessee Constitution protect against unreasonable searches and seizures. A
warrantless search or seizure “is presumed unreasonable, and evidence discovered as a result
thereof is subject to suppression unless the State demonstrates that the search or seizure was
conducted pursuant to one of the narrowly defined exceptions to the warrant requirement.”
State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        In a written order denying Defendant’s motion to suppress, the trial court determined
that Officer Ascencio’s encounter with Defendant was “a clear example of a police officer
exercising his community caretaking role which fits into the third category of encounters as
a brief police-citizen encounter requiring no objective justification.” The trial court noted
that Officer Ascencio pulled his car into the closest available parking space; he did not turn
on his emergency lights or siren; he did not tell Defendant to stop or halt; he did not
command Defendant to come to him; and he did not draw his weapon. He engaged in a short
conversation with Defendant and asked if he was on the no trespass list. The police video
shown to the trial court at the suppression hearing showed that Defendant freely answered
Officer Ascencio’s questions. After Officer Ascencio discovered that Defendant was on the
no trespass list, he then told Defendant to sit on the curb in front of the police cruiser and he
called for another officer. After a second officer arrived, Officer Ascencio returned to the
area where he had seen Defendant make a throwing motion and found the bag of crack

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cocaine. The trial court ruled that a seizure did not occur until, “at the earliest,” when Officer
Ascencio told Defendant to go to his car so that he could write Defendant a citation for
trespassing. The trial court found that “the drugs had been discarded before a seizure took
place.”

        Unlike full-scale arrests and investigatory detentions, “third-tier” encounters are
consensual and do not require probable cause or reasonable suspicion. State v. Hawkins, 969
S.W.2d 936, 939 (Tenn. Crim. App. 1997). These consensual encounters include
“community caretaking or public safety functions that involve no coercion or detention.” Id.
(emphasis added). “[O]ur courts have consistently recognized that police officers may
approach an individual in a public place, whether walking or in a parked car, and ask
questions without implicating constitutional protections.” State v. Moats, 403 S.W.3d 170,
181 (Tenn. 2013) (citations omitted). As this court observed in Hawkins, “[w]ith regard to
the community caretaking function, it is now generally held that the police may engage a
citizen and ask questions as long as the citizen is willing to carry on the conversation.” 969
S.W.2d at 939.

       However, “what begins as a consensual police-citizen encounter may mature into a
seizure of the person.” State v. Daniel, 12 S.W.3d 420, 427 (Tenn. 2000). In determining
whether a seizure has occurred, our supreme court has adopted a totality of the circumstances
test. Moats, 403 S.W.3d at 182 (citing Daniel, 12 S.W.3d at 424).

         Some of the factors which are relevant and should be considered by courts
         when applying this totality of the circumstances test include the time, place
         and purpose of the encounter; the words used by the officer; the officer’s
         tone of voice and general demeanor; the officer’s statements to others who
         were present during the encounter; the threatening presence of several
         officers; the display of a weapon by an officer; and the physical touching of
         the person of the citizen.

Daniel, 12 S.W.3d at 425-26.

        In this case, Officer Ascencio did not activate his blue lights or otherwise exhibit any
show of authority. We conclude that the evidence does not preponderate against the trial
court’s finding that Officer Ascencio’s initial encounter with Defendant was a brief police-
citizen encounter, which did not require probable cause or reasonable suspicion.

       We also conclude that the bag containing crack cocaine was in plain view of the
officer and did not require a warrant. Furthermore, its retrieval did not constitute a search.
See State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001). “[T]he “plain view” exception to the

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Fourth Amendment warrant requirement permits a law enforcement officer to seize what
clearly is incriminating evidence or contraband when it is discovered in a place where the
officer has a right to be.” Washington v. Chrisman, 455 U.S. 1, 5-6, 102 S. Ct. 812, 70 L.
Ed. 2d 778 (1982). “The plain view doctrine is applicable when (1) the object seized was in
plain view, (2) the viewer had a right to be in the position to view the object, and (3) the
incriminating nature of the object was immediately apparent.” Id. (citing State v. Cothran,
115 S.W.3d 513, 524-25 (Tenn. Crim. App. 2003)).

       Because Defendant did not have a reasonable expectation of privacy in the parking
lot, he was without standing to challenge the actions of the officer. The incriminating
character of the plastic bag containing crack cocaine was immediately apparent to Officer
Ascencio. Accordingly, Defendant is not entitled to relief on this issue.

Sufficiency of the evidence

       Defendant also contends that there was insufficient evidence to support his
convictions. Specifically, Defendant asserts that the evidence was entirely circumstantial that
Defendant had possessed the bag of crack cocaine and that the crack cocaine was possessed
with the intent to sell or deliver. The State responds that the evidence was sufficient to
support an inference that Defendant possessed the bag of cocaine and that he intended to sell
or deliver the cocaine. We agree with the State.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Similarly, Rule 13(e) of the Tennessee
Rules of Appellate Procedure states, “Findings of guilt in criminal actions whether by the
trial court or jury shall be set aside if the evidence is insufficient to support a finding by the
trier of fact of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable
doubt in a case where there is direct evidence, circumstantial evidence, or a combination of
the two. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895,
897 (Tenn. 1961)). The trier of fact must evaluate the credibility of the witnesses, determine
the weight given to witnesses’ testimony, and must reconcile all conflicts in the evidence.
State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the
sufficiency of the evidence, this court shall not “reweigh or reevaluate the evidence.” Henley
v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty

                                               -5-
verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for
the State and resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d
at 659. A guilty verdict also “removes the presumption of innocence and replaces it with a
presumption of guilt, and the defendant has the burden of illustrating why the evidence is
insufficient to support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982)).

       When the State offers proof of guilt based on circumstantial evidence, the jury decides
how much weight to give to circumstantial evidence. “The inferences to be drawn from such
evidence, and the extent to which the circumstances are consistent with guilt and inconsistent
with innocence, are questions primarily for the jury.” Marable v. State, 203 Tenn. 440, 313
S.W.2d 451, 457 (Tenn. 1958) (internal quotation and citation omitted)). This court may not
substitute its inferences for those drawn by the trier of fact in cases involving circumstantial
evidence. State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010) (citing Liakas v. State, 199
Tenn. 298, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the standard of review 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).

       Defendant asserts that the State failed to provide sufficient evidence to establish
possession and intent. It is an offense in Tennessee “for a defendant to knowingly . . .
[p]ossess a controlled substance with intent to manufacture, deliver or sell the controlled
substance.” Tenn. Code Ann. § 39-17-417(a)(4).

        We conclude that the evidence was sufficient for a reasonable juror to find Defendant
guilty of possession with intent to deliver. The proof regarding intent in this case, as in most
cases, was largely circumstantial. However, a jury is permitted to infer the defendant’s intent
based on “the amount of a controlled substance or substances possessed by an offender, along
with other relevant facts surrounding the arrest.” Id. § 39-17-419. Such “other relevant
facts” that can give rise to an inference of intent to sell or deliver include the absence of drug
paraphernalia, the presence of a large amount of cash, the packaging of the drugs, and the
street value of the drugs. See State v. Belew, 348 S.W.3d 186, 191-92 (Tenn. Crim. App.
2005) (citing State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999) (finding
sufficient evidence to support the jury’s finding of intent to deliver when the defendant
possessed 1.7 grams of crack cocaine, no drug paraphernalia, and 5.1 grams of baking soda);
State v. Logan, 973 S.W.2d 279, 281 (Tenn. Crim. App. 1998) (finding sufficient evidence
of intent to sell to support conviction when the defendant possessed a large amount of cash
and several small bags of cocaine); State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995)
(finding that the absence of drug paraphernalia and the manner of packaging of drugs
supported an inference of intent to sell); State v. Matthews, 805 S.W.2d 776, 782 (Tenn.



                                               -6-
Crim. App. 1990) (finding that testimony concerning amount and street value of drugs was
admissible to prove the defendant’s intent).

        The evidence in this case supports the inference that Defendant possessed the crack
cocaine with the intent to deliver and sell it. Officer Ascencio and Sergeant Shaffer both
testified that the size and consistency of the rocks indicated that they were intended to be sold
or delivered. Sergeant Shaffer testified that there was one “larger chunk” and “some smaller
individual pieces that ha[d] been broken off.” Those smaller pieces would normally sell for
$20 per “rock.” Another circumstance surrounding the arrest also supports the inference that
Defendant intended to sell or deliver the crack cocaine. Defendant had no drug paraphernalia
in his possession.

         Defendant argues that there was no evidence presented “to verify that the bag had not
been present at that location prior to [his] arrival there.” However, the circumstantial
evidence supports the inference that Defendant possessed the bag of crack cocaine and threw
it into the grass when he saw Officer Ascencio approaching him. Officer Ascencio observed
Defendant walking through a high crime area at 3:30 a.m. Defendant did not reside there,
and in fact, Officer Ascencio inquired into the “no trespass list” and discovered that
Defendant was not supposed to be on the property. Officer Ascencio saw Defendant make
a throwing motion with his hand. Less than ten minutes later, and after speaking to
Defendant, Officer Ascencio discovered a bag of crack cocaine in the same area where he
had seen Defendant walking when he made a throwing motion. Officer Ascencio testified
that the bag was lying on top of the grass, and there were no other pedestrians or vehicles in
the area at the time. Sergeant Shaffer testified that the substance appeared to have been
“freshly cooked[.]”

      We conclude that the evidence was sufficient to support Defendant’s convictions.
Defendant is not entitled to relief on this issue.

       In summary, we have reviewed the record and the briefs of the parties and finding no
error, we affirm the judgments of the trial court.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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