       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT JACKSON

                        MARCH SESSION , 1998                FILED
                                                         July 1, 1998
STATE OF TENNESSEE,   )         C.C.A. NO. 02C01-9705-CC-00170
                      )                               Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
    Appellee,         )
                      )
                      )         CARROLL COUNTY
VS.                   )
                      )         HON. C. CREED MCGINLEY
ANTWAIN LAMAN SPEARS, )         JUDGE
                      )
    Appe llant.       )         (Direct Ap peal)




FOR THE APPELLANT:              FOR THE APPELLEE:

RAYMOND L. IVEY                 JOHN KNOX WALKUP
P. O. Box 229                   Attorney General and Reporter
Huntingdon, TN 38344
                                ELIZABETH T. RYAN
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                ROBERT RADFORD
                                District Attorney General

                                ELEANOR CA HILL
                                Assistant District Attorney
                                P. O. Box 686
                                Huntingdon, TN 38344




OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                     OPINION
       Appellant Antwain Laman Spears was indicted on May 6, 1996 by the

Carro ll Coun ty Grand Jury for po ssessio n of coca ine with intent to sell or deliver,

possession of marijuana w ith intent to sell or deliver, and possession of unlawful

drug paraphernalia. Concluding that Appellant lacked standing to contest the

search warra nt, on J une 2 5, 199 6, the tria l court d enied Appe llant's motion to

suppress the evidence seized pursuant to a search warrant, which had been

executed at the residence of Margo Taylor. Moreover, the court determined that

even if Appellant had standing, the sea rch warra nt appe ared to b e valid on its

face. Appellant was convicted on September 16, 1996 , by a jury in the C arroll

Coun ty Circuit Co urt of poss ession o f cocaine and m arijuana w ith intent to sell

or deliver and possessio n of unlawful drug paraphernalia.               The jury fined

Appellant $15,000.00 for cocaine po ssession, $2 ,500.00 for m arijuana

possession, and $7 50.00 fo r posse ssion of d rug para pherna lia. As a R ange II

multip le offende r, Appella nt was sentenced to concurrent sentences of fifteen

years incarceration with the Tennessee Department of Correction, three years,

and eleven months and twenty-nine days, respectively. The trial court also

revoked Appellant's probation resulting from a prior conviction.               Appellant

presen ts three issues for our consideration on this direct appeal: (1) whether the

trial court erred in concluding that Appellant lacked standing to challenge the

search of Mar go T aylor's r eside nce; (2 ) wheth er the tr ial cou rt impro perly denied

Appe llant's motion to suppress the evidence seized during execution of the

search warrant; and (3 ) wheth er the e videnc e was sufficie nt to su stain A ppella nt's

convictions for possession of cocaine and marijuana with intent to sell or deliver

and possession of drug paraphernalia.

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

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                                    I. FACTUAL BACKGROUND

         The proof shows that on February 23, 1996, Deputy Lester McCaleb

executed a search warrant at 42 Cherry Blossom Drive, a duplex in Huntingdon,

Carro ll Coun ty. At this time , Ms. Ma rgo Ta ylor leased the dup lex. The search

warrant was for cocaine and drug paraphernalia seen in the residence by a

confiden tial informa nt.

         At the suppression hearing, Appellant testified that he did not reside at the

Cherry Blossom Drive addres s. He stated tha t he had purc hased a bedroom

suite and need ed a p lace to store it until he obtained a place to rent. Appellant

also stored some of his clothing at Ms. Taylor's residence, as he was in the

process of moving from one place to another. At the suppression hearing,

Appellant testified that h e spen t only two co nsecu tive nights 1 at the Taylor

residence. Moreover, he stated that he never signed either a lease or a rental

agreem ent. Finally, App ellant adm itted that although the bedroom door had a

privacy lock , he neve r used it.

         Ms. Margo Taylor testified at the suppression hearing that she signed the

lease to the duplex with Marshanna2 Barnhill. Howeve r, Mr. Barnhill vacated the

premises around the middle of January 1996.                             In the middle of F ebruary,

Appellant moved his clothes and bedroom suite into the duplex. Ms. Taylor

testified that Ap pellant kep t his belongings at her residence only with her

permission.

         At Appellant's trial, Deputy Lester McCaleb testified that no one was at

home when h e arrived to execute the sear ch warra nt. Appro ximately th irty

minu tes late r, howe ver, Mr . Haro ld Miller, the lan dlord, arrive d. After procuring


  1
      At trial, however, Appellant testified that he stayed only one night at the Taylor residence.

  2
      At trial, Mr. Bar nhill's first nam e is said to b e "Marc an."

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a key to the front doo r, Mr. Miller authorized D eputy McCale b and Sergeant

Randal Dunn to enter the duplex.         During Mr. Miller's absence, Appellant

approached the area. Deputy McCaleb testified that Appellant seemed nervous

and also appeared to Deputy McCaleb as though he was attempting to avoid the

officers. De puty Mc Caleb th en serve d Appe llant with the s earch w arrant.

      Sergeant Dunn testified that once inside, he and his drug dog proceeded

to search the home. The dog alerted on the rear bedroom. The door to the

bedroom was lock ed from the inside , and Mr. M iller opene d it by using a coat

hanger. Upon entering the room, the dog indicated on Appellant's dresser and

the headboard of his waterbed.

      Deputy McCaleb searched the room a nd found insid e a dresser a box of

plastic baggies and a cigar box containing a pack of rolling pap ers. Additionally,

McC aleb's search revealed a brown paper bag located under a baseball cap

which sat on the headboard of the bed.          Inside the bag, Deputy McCaleb

discovered two loose bags o f crack co caine, a film canister conta ining o ne sm all

bag of crack cocaine, and two bags of marijuana.

      Sandra Romanek, a special agent forensic scientist with the Tennessee

Bureau of Investiga tion, teste d the items found both in the dresser and on the

headboard. Her analysis disclosed the items to be 13.9 grams of cocaine base

and 27.4 grams of marijuana.

      Margo Taylor testified that she and Marcan Barnhill rented the duplex from

Haro ld and Barbara Miller. Barnhill and Ms. Taylor lived together until the midd le

of January 1996. During the middle of F ebruary, App ellant moved some furn iture

and clothes into the room form erly occupied b y Mr. Barnhill.        Som e of Mr.

Barn hill's clothes re maine d in the be droom closet even afte r he had left.




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According to Ms. Taylor's testim ony, Ap pellant sp ent only o ne and one-ha lf nights

in the dup lex, had n o key, an d paid no rent.

      Tracy Willis, Appellant's former girlfriend, testified that Appellant resided

with her from December 1995 until April 1996. Willis stated that Appellant

maintained all of his personal items, i.e., furniture, clothes, shoes, and toiletries,

at her ho use. W illis was aware that App ellant had purcha sed a b edroom suite

and that he had stored it at Ms. Taylor's house.

      At his trial, Appellant testified that he was living with Ms. Willis at the tim e

the search warrant was executed. He explained that he stored his rec ently

purchased bedro om s uite at M s. Tay lor's residence because he had no room for

it at Ms. Willis' home and was attem pting to locate a plac e for him self an d his

daughter. Appellant disclaimed any knowledge of the drugs that were found on

the dresser and headboa rd but admitted that some of the baseball caps found on

the headboa rd belonged to him. Appellant confirmed that he neither possessed

a key to the dup lex nor paid rent to M s. Taylor.



                                  II. STANDING

      Appe llant's first conten tion on this direct app eal is that th e trial court

erron eous ly conclud ed that he lacked s tanding to challenge the search of Margo

Taylor's residence. We disagree.

      The Fourth Amendment to the United States Constitution provides, "The

rights of the people to be secure in their persons, houses, pape rs, and effects,

again st unreasonable searches and seizures, shall not be violated, and no

warran ts shall issue, but upon probable cause. . . ." U.S. Const. amend 4.

Simila rly, Article I, § 7 of th e Ten nesse e Con stitution gu arantee s, "That th e




                                         -5 -
peop le sha ll be secure in their persons, houses, papers and possessions, from

unreasonable searches and seizures. . . ." Tenn. Const. art. I, § 7.

      The trial court's findings of fact on a motion to suppress are conclusive on

appeal unless the evidenc e prepo nderate s agains t them. State v. Woods, 806

S.W .2d 205 , 208 (T enn. C rim. App . 1990); State v. Tate, 615 S.W.2d 161, 162

(Tenn. Crim . App. 1981).       It is axiomatic that "One who challenges the

reasonableness of a search or seizure has the initial burden of establishing a

legitimate expectation of privac y in the place where p roperty is se arched ." State

v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (citing Rawlings v.

Kentucky, 448 U .S. 98, 10 0 S.Ct. 2556, 65 L.Ed.2d 633 (1980)). This Court has

held that an individual ma y have a legitimate expe ctation of privacy even where

the property belonged to anothe r. Oody, 823 S.W .2d 554 , 560; State v. Turn bill,

640 S.W .2d 40, 45 (T enn. Crim. A pp. 1982).

      In United States v. Haydel, the United States Court of A ppeals for the Fifth

Circu it articulated a seven-factor analysis applicable to the standing inquiry. 649

F.2d 1152 (5th Cir. 1981). This Court has adopted and employed the Haydel

factors in num erous c ases. See, e.g., Oody, 823 S.W .2d 554 , 560; Woods, 806

S.W .2d 205 , 208; Turn bill, 640 S.W.2d 40, 46.

      W e now address ourselves to the task of applying the seven factors

enunciated in the Haydel decision to the case at bar. These seven Haydel

factors are the following: (1) property ownership; (2) whether the defendant has

a posse ssory inte rest in the property seized; (3) whether the defendant has a

possesso ry interest in the place searched; (4) whether the defendant has "a right

to exclude others from that place"; (5) whether the defendant has "exhibited a

subjective expec tation th at it would remain free from governmental invasion"; (6)

whether the de fenda nt "took norm al prec aution s to m aintain his privacy"; and (7)

                                         -6 -
whether the defendant was "legitimately o n the pre mises ." Haydel, 649 F.2d

1152, 1154-55. First, H arold Miller, not Appellant, owned the duplex located at

42 Cherry Blossom Drive. Second, Appellant disclaimed any knowledge of the

marijuana and cocaine that were found in the bedroom on the headboard.

Appellant denied having a possessory interest in the          baseball caps which

concealed the drugs. However, Appellant admitted owning two of the hats on the

headboard. Third, Appellant had no possessory interest in the place searched.

At the suppression hearing, Appellant admitted that he never signed a lease. At

trial, Appe llant tes tified that he paid no rent to Ms. Taylor for the use of the

bedroom and that she did not give him a key to the residence. Fourth, Appellant

confirmed that he did not reside at the Cherry Blossom address when the search

warrant was executed. Moreover, Ms. Taylor testified at the suppression hearing

that Appellant stored his possessions in the bedroom only with her permission.

As Appellant was not a co-tenant of Ms. Taylor's, kept his possessions at her

residence only by her permis sion, and spent on ly a couple of nights in the duplex,

it seems obvious that he did not have the right to exclude others. Fifth, Appellant

testified at the supp ressio n hea ring tha t he ne ver lock ed the bedro om d oor in

whic h his possessions were stored. Although the door was locked when th e

police arrived to search the residence, Appellant stated that he had no t locked it.

Therefore, Appellant apparently had no subjective expectation that the bedroom

would remain free from governmental invasion. Sixth, Appellant did not take

normal precautions to maintain his privacy, such as ensuring that the bedroom

door remained locked in his absence. As previously stated, Appellant testified

that he ne ver use d the lo ck on the be droom door.       F inally, it appears that

Appellant was legitimately on the premises because Ms. Margo Taylor granted

him permission to store his belongings in the bedroom.

                                         -7 -
      In weighing the Haydel factors, we conclude that it is fairly obvious that

Appellant lacked standing to challenge the validity of the search.



 III. SUFFICIENCY OF AFFIDAVIT IN SUPPORT OF SEARCH WARRANT

      Appe llant next complains that in the affidavit in support of the search

warran t, the affiant made knowing m isrepresentation s of fact.        Specifically,

Appellant alleges that the affiant made an intentional, if not reckless, statement

to establish probable cause by referring to the premises as those of Appellant

when they did not belong to him. We disagree.

      The affidavit in support of the sea rch warrant refers to the premises to be

searched as tho se of A ntwain Spea rs. App ellant c onten ds tha t withou t this

statement, probable cause would not have existed.

      The trial court's findings of fact in a hearing on a mo tion to suppress are

conclusive on appeal unless the evide nce pre ponde rates ag ainst them . Turn bill,

640 S.W.2d 40, 45-4 6. In the present case, the trial court did not find "any false

statements or stateme nts that we re mad e with reck less disre gard su ch as to

invalidate the search in question." The court also concluded that the search

warrant was valid both in the issuance and in the execution.

      To buttress his argument, Appellant relies upon Deputy McCaleb's trial

testimony that he consulted the 911 co mpute r listing directo ry for Carro ll County

which showed the Cherry Blossom residenc e to be under the name of Ms. Margo

Taylor. However, this evid ence was not before the trial court at the suppression

hearing.

      In State v. Little, the Tennessee Supreme Court sta ted tha t "the law is

settled that a fraudulent misrepresentation of a material fact will invalidate a

search warrant."    560 S .W .2d 40 3, 406 (Ten n. 197 8).      An affidavit th at is

                                         -8 -
sufficient on its face may be impeached in two circumstances: "(1) a false

statement made with intent to d eceive the Court, whether material or immaterial

to the issue of probable cause, and (2) a false statement, essential to the

establishment of proba ble caus e, reckles sly mad e." Id. at 407. Neither of these

two circumstances is present in the instant case. The search warrant is valid.



                     IV. SUFFICIENCY OF THE EVIDENCE

       Appe llant's final contention is that because the evidence in this case was

entirely circum stantia l, it is insufficient to sustain his convictions for possession

of cocaine with intent to sell or deliver, possession of marijuana with intent to sell

or deliver, and possession of unlawful drug paraphernalia. We disagree.

       W e begin by observin g that Ap pellant d oes not strengthen his argument

by contending that the evidence is insufficient because it is circ ums tantial in

nature. Tennessee law permits convictions based upon circumstantial evidence.

State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). Additionally, both direct and

circum stantia l eviden ce we re pres ented at App ellant's trial.

       This Court is obliged to review challenges to the sufficiency of the

convicting evidence accord ing to certa in well-settled principles . A verdict o f guilty

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

witnesses and res olves all co nflicts in the tes timony in favor of the State. State

v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75

(Tenn. 1992). Although an accused is originally cloaked with a presumption of

innocence, a jury verdict removes this presumption and replaces it with one of

guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the

burden of proof rests with Appellant to demonstrate the insufficiency of the

convicting evidenc e. Id. On appeal, "the [S]tate is entitled to the strongest

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legitimate view of th e evide nce a s well a s all reason able an d legitima te

inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571

S.W.2d 832, 83 5 (Ten n. 1978 )).        W here the sufficie ncy of th e evide nce is

contested on appeal, the relevant question for the reviewing court is whether any

rational trier of fact could have found the accused guilty of every element of the

offense beyond a reasonable doubt. Harris , 839 S.W .2d 54, 75 ; Jackson v.

Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In

conducting our eva luation of the c onvictin g evide nce, th is Court is precluded from

reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383

(Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Moreover, this Court may not substitute its own inferences "for those

drawn by the trier of fact from circums tantial evide nce." Matthews, 805 S.W.2d

776, 779. Finally, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal

actions whethe r by the trial co urt or jury sha ll be set asid e if the evidenc e is

insufficient to support the findings by the trier o f fact of g uilt beyo nd a re ason able

doubt." See also Matthews, 805 S.W.2d 776, 780.

       Tenn . Code Ann. § 3 9-17-41 7 provide s in pertine nt part:

              (a) It is an offense for a de fendant to kno wingly:
              (4) Possess a controlled substanc e with inten t to
              manufacture, deliver or sell such controlled substance.
              (c) A violation of subsection (a) with respect to:
              (1) Cocaine is a Class B felony if the amount involved is point
              five (.5) grams or more of any substance containing cocaine
              and, in addition thereto, may be fined not more than one
              hundred th ousand d ollars ($100,000 ).
              (g)(1) A violation of subsection (a) with respect to a Sche dule
              VI contro lled substance classified as marijuana containing not
              less than one-half (1/2) ounce (14.175 grams) nor more than
              ten pounds (10 lbs.) (4535 g rams) of m arijuana, or a
              Sche dule VI controlled substance defined as a non-leafy,
              resinous material containing tetrahyd rocannab inol (hashish),




                                           -1 0 -
           containing not more than two pounds (2 lbs.) (905 grams) of
           hashish is a Class E felony and, in addition thereto, may be
           fined not mo re than five thousa nd dollars ($5,00 0).
Tenn. Code Ann. § 39-17-417.

Tenn. Code A nn. § 39-17-4 19 perm its the jury to infer "from th e amo unt of a

controlled substance or substance s possess ed by an offen der, along w ith other

relevant facts surrounding the arrest, that the controlled substance or substances

were poss esse d with th e purp ose o f selling or otherwise dispensing." Tenn.

Code Ann. § 39-17-419.

Tenn. Code Ann. § 39-17-425(a)(1) provides:

            (a)(1) Except when used or posse ssed w ith the inten t to use
            by a person authorized by this part and title 53, chapter 11,
            parts 3 and 4 to dispense, prescribe, manufacture or possess
            a controlled substance, it is unlawful for any person to use, or
            to posse ss with inte nt to use, drug paraphernalia to. . . pack.
            . ., store. . ., inhale, or otherwise introduce into the human
            body a c ontrolled s ubstan ce in violation of this part.
Tenn. C ode Ann . § 39-17-425 (a)(1).

The State wa s require d to prove each and every element of the charged offenses

beyond a reaso nable d oubt.

      Respecting Appellant's convictions for possession of cocaine and

marijuana with intent to s ell or de liver, the d rug do g indic ated o n App ellant's

dresser and on the hea dboard of his wate rbed. Depu ty McCaleb testified that he

found c rack coc aine an d mariju ana un dernea th a baseball hat which lay on the

headbo ard of the waterbed. Inside a brown paper bag was a Crown Royal bag

containing two loose bags o f crack co caine an d a film ca nister with anoth er sm all

bag of cocaine. Deputy McCaleb also discovered two bags of marijuana inside

the Cro wn Ro yal bag.

      Sandra Romanek, a special agent forensic scientist with the Tennessee

Bureau of Investiga tion, testified th at she pe rformed various tes ts on the items




                                         -1 1 -
retrieved in the se arch. H er resu lts revea led 13.9 gra ms of cocaine base and

27.4 gra ms of m arijuana.

       The jury obviously concluded that Appellant possessed these substances

and intended to sell or otherwise dispense of the cocaine and marijuana because

of the amounts recovered.        Tenn. Code Ann. § 39-17-419 permits such an

inference .

       Finally, we address the evidence supporting Appellant's conviction for

possession of unlawful drug paraphernalia in violation of Tenn. Code Ann. § 39-

17-425(a)(1). Deputy McCaleb testified that during the search of the bedroom,

he found a pack of rolling papers inside a cigar box. Deputy McCaleb found a

box of plastic baggies in A ppellant's dresser drawers. Deputy McCaleb explained

that both rolling papers and plastic baggies are used to package, store, and

inhale controlled substances. The jury properly could infer that the baggies and

rolling pape rs belo nged to App ellant, a s thes e item s were discov ered in side h is

dresser in a bedroom used by him to store his furniture.

       The judgment of the trial court is affirmed.



                                   ____________________________________
                                   JERRY L. SMITH, JUDGE




                                          -1 2 -
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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