                                                                                           02/25/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2019

                  STATE OF TENNESSEE v. STEVEN KELLY

               Appeal from the Circuit Court for Montgomery County
                No. 41400848       William R. Goodman, III, Judge
                     ___________________________________

                           No. M2018-00659-CCA-R3-CD
                       ___________________________________


Following a bench trial, the Defendant, Steven Kelly, was convicted of possession with
intent to sell or deliver 0.5 grams or more of cocaine. By agreement of the parties, the
trial court sentenced the Defendant to a suspended nine-year sentence to be served
consecutively to a federal sentence. On appeal, the Defendant contends that the evidence
failed to prove that he had the intent to sell the cocaine. After review, we affirm the trial
court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Gregory D. Smith (on appeal), and Edward E. DeWerff (at trial), Clarksville, Tennessee,
for the appellant, Steven Kelly.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; John W. Carney, Jr., District Attorney General; and C. Daniel Brollier,
Jr., Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                                          I. Facts


      This case arises out of a shooting on Dodd Street in Clarksville, Tennessee, on
May 24, 2014. While searching a residence for items related to the shooting, an officer
found 3.3 grams of crack cocaine. After a police investigation, a Montgomery County
grand jury indicted the Defendant for possession with intent to sell or deliver 0.5 grams
or more of cocaine. At trial, the parties presented the following evidence: Clarksville
Police Department (“CPD”) officer Joshua Katz responded to the report of the shooting
and observed bullet holes on the outside of the residence. Based upon his observations,
he requested and was granted permission to search the inside of the residence for
evidence related to the shooting. During the search, Officer Anderson found illegal drugs
in a vase located under one of the bullet holes in the living room.

        When CPD Sergeant David Galbreath arrived at the scene, other officers notified
him that “there might be some controlled substances or illegal substances in the house.”
Sergeant Galbreath observed the substance in the vase and noted that it appeared to be
crack cocaine. He collected the substance from the vase for field testing and gave it to
CPD Officer Lon Chaney, a narcotics investigator. The preliminary weight of the
substance was five grams and, based upon Officer Chaney’s experience, he believed the
substance appeared to be crack cocaine. Officer Chaney opined that five grams is “not a
typical amount you would find [associated with] user amount.” He stated that the size of
the “rocks” also indicated that the crack cocaine was for sale and not personal use.
Officer Chaney said that a “typical street level” purchase was .1 to .2 grams. He
explained that the size of the rocks seized from the residence on Dodd Street were
“almost a gram a piece,” which is too large to fit in a crack pipe. Officer Chaney
identified photographs of the crack cocaine taken the night it was seized. He noted the
shape of the crack cocaine still retained the shape of the dish it was cooked in. The fact
that the crack cocaine was still large and in the “cookie” form in which it had been
manufactured, indicated to Office Chaney that the person who possessed the crack
cocaine intended it for sale and not personal use.

        The substance was packaged and submitted to the Tennessee Bureau of
Investigation (“TBI”) for further analysis. The TBI report, included in the record,
indicated that the actual weight of the substance was 3.3 grams. Officer Chaney testified
that a “true” “eight ball” was 3.5 grams, but that in Clarksville an eight ball is commonly
between 2.7 grams and 3.2 grams. Officer Chaney estimated that this particular eight ball
was worth approximately $330 in street value.

       The Defendant had not been at the residence at the time of the shooting but arrived
shortly after and was “concerned.” Officers detained him in the back of a police car, and
Officer Chaney spoke with the Defendant about the substance found in the vase. The
Defendant was “very adamant,” stating repeatedly, “you can go ahead and drug test me;
I’m not going to test for that; you can drug test me.” The Defendant made no statements
regarding possession of the crack cocaine at the scene but later contacted Officer Chaney
to arrange a meeting. The Defendant and his attorney met with Officer Chaney at his
office where the Defendant admitted ownership of the crack cocaine. He described the
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substance as being in “a couple big chunks.” He estimated that it “was about a ball.”
When Officer Chaney asked the Defendant what he intended to do with the crack
cocaine, the Defendant responded that it was for personal use. Officer Chaney reminded
the Defendant of his prior statements about drug testing, and the Defendant stated that he
had been lying. A recording of the interview was introduced into evidence.

      Officer Chaney testified that in cases involving persons that possessed crack
cocaine for personal use, it was common to find drug instruments used to ingest the
cocaine, i.e., soda can, pipe, metal pipe, glass pipe, with the crack cocaine. No drug
paraphernalia was found with the crack cocaine. He further noted that the Defendant was
not employed at the time of these events.

       On cross-examination, Officer Chaney agreed that a larger amount of crack
cocaine, purchased “wholesale,” would generally be sold for less, i.e., $150. Officer
Chaney further agreed that a “thorough search” of the residence was not done because the
search was based upon the shooting.

       After hearing this evidence, the trial court found the Defendant guilty of
possession with intent to sell or deliver 0.5 grams or more of cocaine. The trial court
found it significant that no drug paraphernalia was found in the vicinity of the vase. The
trial court found the location of the substance and the amount indicative that the
substance was not for personal use. The trial court also considered the Defendant’s
unemployment and his assertions at the scene, “you can test me and won’t find that in
me.” At a subsequent sentencing hearing, the trial court sentenced the Defendant, by
agreement of the parties, to serve a suspended nine-year sentence to be served
consecutively to a federal sentence. It is from this judgment that the Defendant appeals.

                                       II. Analysis

      On appeal, the Defendant asserts that the evidence at trial was insufficient as to the
element of intent to sell. He maintains that the proof showed merely simple possession.
The State responds that there was sufficient evidence to support the inference that the
Defendant possessed the crack cocaine with the intent to sell it. We agree with the State.

       On appeal, a conviction removes the presumption of a defendant’s innocence and
replaces it with one of guilt, so that the defendant carries the burden of demonstrating 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). Thus, the State is entitled to the strongest legitimate view of the evidence and all
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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 for a defendant to knowingly possess a controlled substance with
intent to manufacture, deliver, or sell the controlled substance. T.C.A. § 39-17-417(a)(4)
(2014). A violation of Tennessee Code Annotated section 39-17-417(a)(4) involving 0.5
grams or more of cocaine with the requisite intent is a Class B felony. T.C.A. § 39-17-
417(c)(1). “Before a defendant may be convicted of possessing a controlled substance
with intent to manufacture, distribute, or sell, the State must prove beyond a reasonable
doubt the substance was a controlled substance and the defendant possessed the substance
with the intent to manufacture, deliver or sell the substance.” State v. Cooper, 736
S.W.2d 125, 128 (Tenn. Crim. App. 1987). “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 substances were possessed with the
purpose of selling or otherwise dispensing.” Id.; see T.C.A. § 39-17-419.

       The evidence, viewed in the light most favorable to the State, showed that the
Defendant admitted ownership of the 3.3 grams of crack cocaine found at the Dodd Street
residence. Officer Chaney testified that this amount of cocaine is not associated with
personal use. Additionally, the shape of the crack cocaine was still consistent with the
form it takes during manufacture before it is broken into smaller pieces at the time of a
drug sale. No instrument used to ingest the crack cocaine was found with the substance,
and the approximately one gram pieces were too large to use in a crack pipe. The
Defendant had no employment at the time of these events and at the scene repeatedly
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offered to be drug-tested to show he had not used drugs. Although during a later
interview, the Defendant claimed that the drugs were for personal use, the credibility of
witnesses and the weight to be given to evidence are resolved by the trier of fact. By its
verdict, the trier of fact discredited the Defendant’s subsequent claims that the drugs were
for personal use. This court does not second-guess the weight, value, or credibility
afforded to the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Accordingly, we conclude that there was sufficient evidence upon which a trier of fact
could find that the Defendant possessed the 3.3 grams of crack cocaine with the intent to
sell.

       The Defendant cites to State v. Belew, 348 S.W.3d 186 (Tenn. Crim. App. 2005),
in support of his contention that the evidence in this case is insufficient. In Belew, this
court held that a jury cannot infer intent to sell or deliver solely on the amount of the
controlled substance, and reversed a conviction for possession of .5 grams or more of
cocaine with the intent to deliver.1 Id. at 191. The court interpreted Tennessee Code
Annotated section 39-17-419 as providing that an inference may be drawn by the jury
from the amount of a controlled substance possessed, “along with other relevant facts
surrounding the arrest.” Id.

        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. 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. Crim. App. 1990) (finding that testimony
concerning amount and street value of drugs was admissible to prove the defendant’s
intent); State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004 WL 2266801, at
*8 (Tenn. Crim. App. Oct. 8, 2004) (finding that the absence of drug paraphernalia and
testimony of value and amount of 3.3 grams of cocaine sufficient for the jury to infer the
defendant’s intent to sell and deliver it), perm. app. denied (Tenn. May 23, 2005).

       We find the Belew case distinguishable from the present case in that the State
presented other relevant facts giving rise to the inference of intent to sell. The evidence
showed that the shape and weight of the crack cocaine was not consistent with possession
for personal use. The street value of the 3.3 grams of crack cocaine was approximately
$330 or $150 if purchased “wholesale.” There were no items used to ingest crack
cocaine found with the substance, and the Defendant was unemployed at the time of these

       1
          The court, however, did conclude that the evidence was sufficient beyond a reasonable doubt to
convict the defendant of simple possession. Belew, 348 S.W.3d at 192.

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events. In our view, these “other relevant facts” give rise to the inference that the
Defendant possessed the 3.3 grams of crack cocaine with the intent to sell it.

       Accordingly, the evidence is sufficient to sustain the Defendant’s conviction for
possession with intent to sell or deliver 0.5 grams or more of cocaine. The Defendant is
not entitled to relief.

                                    III. Conclusion

        In accordance with the aforementioned reasoning and authorities, we affirm the
trial court’s judgment.



                                            ____________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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