        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                    May 14, 2002 Session

          STATE OF TENNESSEE v. CLYDE RANDALL SCIVALLY

                 Direct Appeal from the Circuit Court for Franklin County
                           No. 12,593    J. Curtis Smith, Judge



                     No. M2001-02261-CCA-R3-CD - Filed July 15, 2002


The defendant and co-defendant were indicted for possession of over .5 grams of cocaine with intent
to sell and possession of drug paraphernalia. A Franklin County jury convicted the defendant of the
lesser-included offense of simple possession of cocaine and acquitted him of possession of drug
paraphernalia. The co-defendant was convicted of both indicted offenses. In this appeal, the
defendant contends the evidence was insufficient to sustain his conviction. We affirm the judgment
of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES
CURWOOD WITT, JR., JJ., joined.

Robert S. Peters, Winchester, Tennessee, for the appellant, Clyde Randall Scivally.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James Michael Taylor, District Attorney General; and Bill Copeland, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                           OPINION

        Winchester Drug Enforcement Officer Danny Mantooth testified he and other officers
executed a search warrant at Room 22 of the Economy Inn located in Winchester at approximately
9:15 p.m. on August 23, 1998, pursuant to information he had obtained from a confidential
informant. Officer Mantooth stated the door to Room 22 was open and someone exited the room,
so they entered through the open door and announced they were police officers. He stated that when
they entered, the defendant was seated in a chair, and co-defendant Marcus Wade was seated on the
bed. Officer Mantooth further testified they saw six cocaine rocks on a night stand stationed
between the defendant and the co-defendant and a crack pipe underneath the bed. On cross-
examination, Officer Mantooth stated that they recovered no currency from the room and that the
defendant and co-defendant denied ownership of the drugs.

        Winchester Officers Tommy Brazelton and Randy Wilkerson, who assisted in the execution
of the August 23rd search warrant, corroborated Officer Mantooth’s testimony. Officer Brazelton
additionally stated he recognized the person who exited the room prior to the search to be Wallace
Taylor, a known drug dealer. Officer Wilkerson testified both defendants were “[w]ithin an arm’s
reach” of the cocaine on the night stand.

       The defendants stipulated the substance recovered was .6 grams of cocaine.

        George Larkin, the defendant’s uncle, testified for the defense that he instructed the
defendant to attempt to locate his stolen rifle. He stated approximately one month later, the
defendant told him he thought he had found the rifle but its possessor wanted $150 for it. Larkin
stated he instructed the defendant to repurchase it for up to $100, and he opined that was the reason
the defendant was at the Economy Inn.

         Randall Robert Scivally, the defendant’s father, testified the co-defendant called asking for
his son several times in August of 1998, and the co-defendant left his name, hotel location, and
phone number, with the instruction that the defendant return his call. The defendant’s father further
testified the co-defendant left one message instructing him to tell the defendant he’s “got what [the
defendant] wants.”

       The defendant testified he and Wayne Mooney drove to Winchester to purchase food on
August 23rd. The defendant stated that while in the grocery, he saw Officer Mantooth and greeted
him. The defendant further testified that when he and Mooney left the grocery, he decided to stop
by the Economy Inn so he could repurchase the rifle from the co-defendant. He explained the co-
defendant had previously offered to sell him the gun and said he was staying at the Economy Inn.
The defendant stated Mooney remained in the vehicle. As the defendant entered Room 22, Wallace
Taylor exited. He testified he offered the co-defendant $50 for the gun; he heard knocking at the
door; he opened the door; and officers entered and told him to sit down. The defendant stated he
possessed neither the cocaine nor the pipe and had no intention of delivering or selling cocaine.

        On cross-examination the defendant conceded the gun he sought to purchase was not located
at the motel, and he had no money on him when he was arrested. The defendant further conceded
that although Wallace Taylor was not his “personal close friend,” he sent Taylor a letter in prison
on July 6, 2000, containing $20, which instructed him to “[u]se this money wisely . . . [and he
would] try to do this two or three times a month.” The letter additionally inquired as to what Taylor
was “going to say in court.” The defendant conceded he sent Taylor an additional letter which was
received on July 18, 2000, containing another $20, which stated, “Larry Davis wants to know what
I know about a guy with a cut throat, but I’ve said nothing. Don’t worry!” The letter was signed,
“Your old buddy.” The defendant explained that he was not “trying to buy Mr. Taylor off.”


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        Co-defendant Marcus Wade testified he was living at the Inn in August of 1998, and he knew
the defendant through Wallace Taylor, who was living in Room 25. Wade stated that on the evening
of August 23rd, he was informed the defendant was coming to his room, and when he met the
defendant at his door, the defendant said he was looking for Taylor so he could purchase crack
cocaine and marijuana. Wade testified that when he told the defendant that Taylor was gone and
Wade had no drugs to sell, Taylor rode up on a bicycle. Wade further testified they entered his
room; the defendant gave Taylor $50 in exchange for the drugs; Taylor exited the room about fifteen
minutes later; and the officers immediately entered the room. Wade stated he was not there to sell
drugs, and the defendant never mentioned anything about a rifle.

       As stated, the defendant was convicted of simple possession of cocaine, and the co-defendant
was convicted of possession of over .5 grams of cocaine with the intent to sell and possession of
drug paraphernalia.


                              SUFFICIENCY OF THE EVIDENCE

       The defendant contends the evidence was insufficient to establish he had constructive
possession of the drugs. We disagree.

A. Standard of Review

        Where sufficiency of the evidence is challenged, the relevant question for an appellate 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 or crimes beyond a reasonable doubt.
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996). The weight and credibility of the
witnesses' testimony are matters entrusted exclusively to the jury as the triers of fact. State v.
Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Brewer, 932 S.W.2d 1, 19 (Tenn. Crim. App.
1996).

B. Possession of Drugs

        It is an offense to knowingly possess a controlled substance without proper authorization.
Tenn. Code Ann. § 39-17-418(a). “Possession” may be sole or joint; thus, more than one person can
be considered in possession of the same drugs. See State v. Copeland, 677 S.W.2d 471, 476 (Tenn.
Crim. App. 1984). “Possession” may also be actual or constructive. State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001). To prove constructive possession, the state must establish the defendant had the
power and intention at a given time to exercise dominion and control over the drugs either directly
or through others. Id.; State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997). Mere
presence in the area of the drugs or association with those possessing drugs is not alone sufficient
to establish constructive possession. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App.
1987).

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C. Analysis

        When the officers served the search warrant, they observed the defendant sitting beside six
cocaine rocks on a night stand, approximately “an arm’s reach” from the defendant. The co-
defendant testified the defendant purchased the cocaine from Wallace Taylor for $50 just prior to
the arrival of the police. Although the defendant testified he was there to buy back the rifle for $50,
he had no money at the time of his arrest. Further, the defendant’s testimony as to his location when
the officers entered the room was inconsistent with the officer’s testimony, as was the defendant’s
testimony about when Taylor exited the room. The jury also had the right to consider defendant’s
payments and correspondence to Wallace Taylor as incriminating. See State v. Maddox, 957 S.W.2d
547, 552 (Tenn. Crim. App. 1997) (noting any attempts by a defendant to suppress the testimony of
a witness is a relevant circumstance from which guilt may be inferred). The evidence supports a
finding of constructive possession; the evidence sufficiently corroborates the testimony of the co-
defendant. See Shaw, 37 S.W.3d at 903.

        The defendant contends the evidence is insufficient because the jury rendered an inconsistent
verdict, finding the co-defendant guilty of the indicted offense of possession with intent to sell or
deliver over .5 grams of cocaine, while finding the defendant guilty of simple possession. The
defendant contends “[t]he jury’s verdict only makes sense if the jury considered the cocaine to be
that of the co-defendant.” We do not necessarily agree that the verdicts were inconsistent.
Regardless, even if the verdicts were inconsistent, consistency in verdicts is not required provided
the evidence establishes guilt of the offense upon which the conviction was returned. See State v.
Wiggins, 498 S.W.2d 92, 94 (Tenn. 1973); State v. Hayes, 7 S.W.3d 52, 57 (Tenn. Crim. App.
1999). As stated, the evidence here was sufficient to support the jury’s finding that the defendant
possessed cocaine.

       We affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




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