             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON

                            JULY 1998 SESSION
                                                        FILED
                                                       September 14, 1998

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
STATE OF TENNESSEE,              )
                                 )     C.C.A. No: 02C01-9710-CR-00392
             Appellee,           )
                                 )     Shelby County
VS.                              )
                                 )     Hon. Bernie Weinman, Judge
                                 )
TIMOTHY RATHERS,                 )     (Possession of Cocaine & Marijuana
                                 )      with Intent to Sell or Deliver)
             Appellant.          )




FOR THE APPELLANT:                     FOR THE APPELLEE:

Charles E. Waldman                     John Knox Walkup
147 Jefferson, Suite 1102              Attorney General & Reporter
Memphis, TN 38103
(At Trial & On Appeal)                 Peter M. Coughlan
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       2nd Floor, Cordell Hull Building
                                       Nashville, TN 37243-0493

                                       William L. Gibbons
                                       District Attorney General

                                       Thomas Hoover
                                       Assistant District Attorney General
                                       201 Poplar Avenue, Third Floor
                                       Memphis, TN 38103




OPINION FILED:


AFFIRMED


ROBERT W. WEDEMEYER,
Special Judge

                              OPINION
       The appellant was indicted on four counts of dealing with controlled substances.

Specifically, he was charged in one count each of possession of cocaine with intent to

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

deliver, and possession of marijuana with intent to sell. On July 16, 1997, a jury

convicted the defendant on the two possession with intent to deliver counts. In this

appeal, his sole complaint is that the evidence was insufficient to support these

convictions. Having reviewed the evidence, we affirm the trial court.



                                         FACTS

       The testimony at trial revealed that on July 19, 1996, Sergeant Ernest Long of

the Shelby County Sheriff’s Department received information from a confidential

informant that the defendant was conducting drug sales from his vehicle. The informant

described the defendant’s vehicle and gave a specific street on which the car would be

found. Upon traveling to the specified location, Sergeant Long observed a car

matching the description of the defendant’s vehicle. A license plate check confirmed

that it belonged to the defendant. A passenger, later identified as Irish Banks, was also

in the vehicle. Long saw a male subject he believed to be the defendant walking

across the street to a pay telephone.

       Once Sergeant Long had positioned himself for continued surveillance of the

defendant, he radioed for assistance and requested that a narcotics dog be brought to

the scene. When the other officers arrived, they approached the defendant at the

telephone booth, identified themselves and asked permission to search his vehicle.

When the defendant refused to consent to such a search, he was detained for

approximately ten minutes to await the arrival of the narcotics dog.

       When the narcotics dog was brought to the defendant’s vehicle, it alerted on the

trunk of the vehicle. The officers obtained the keys from the defendant and opened the

trunk where the dog alerted on a gym bag. Upon opening the gym bag, Detectives

Tarwater and Beasley discovered a bag containing what was later confirmed to be 456

grams of marijuana and two bags containing what was later confirmed to be 52.62

grams of crack cocaine. A set of postal scales was also discovered in the trunk of the



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defendant’s vehicle. Sergeant Long testified that a .1 to .2 gram rock of cocaine would

sell for $20 and the street value of the marijuana would have been $900 to $1300.

         The defendant was arrested and taken to the police department where he was

interviewed by Scott Campbell of the Shelby County Sheriff’s Department. In his

statement, captured on video, the defendant admitted that the “narcotics that were

found belonged to me.” However, he insisted that he had been set up because he did

not have to take the drugs and deliver them. According to the defendant’s statement,

someone called him and asked that these specific amounts of narcotics be delivered to

him.

         Irish Banks, the defendant’s girlfriend, testified on behalf of the defendant.

Banks testified that she was a passenger in the defendant’s vehicle on the day of the

drug search. Ms. Banks said that she had not seen the defendant open the trunk that

day. Further, she testified that the defendant’s brother had driven the car on occasion.



                                      LEGAL ANALYSIS

         The defendant’s sole issue is that the evidence was insufficient to support his

convictions. He insists that the jury should have found him guilty of the lesser included

offense of simple possession.

         When the sufficiency of the evidence is challenged, the standard of review is

whether, after viewing the evidence in the light most favorable to the state, 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, 318 (1979); State v. Evans, 838 S.W.2d 185,

190-91 (Tenn. 1992). On appeal, the state is entitled to the strongest legitimate view of

the evidence and all reasonable or legitimate inferences which may be drawn

therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court will not

reweigh the evidence, reevaluate the evidence, or substitute its evidentiary inferences

for those reached by the jury. State v. Carey, 914 S.W.2d 93, 95 (Tenn. Crim. App.

1995).



         In a criminal trial, great weight is given to the result reached by the jury. State v.



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Johnson, 910 S.W.2d 897, 899 (Tenn. Crim. App. 1995). Once approved by the trial

court, a jury verdict accredits the witnesses presented by the state and resolves all

conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). A

jury’s guilty verdict removes the presumption of innocence enjoyed by the defendant at

trial and raises a presumption of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.

1982). The defendant then bears the burden of overcoming this presumption of guilt on

appeal. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991).

      In the instant case, the defendant was convicted of one count of possession of

cocaine with the intent to deliver and one count of possession of marijuana with the

intent to deliver. Tennessee Code Annotated Section 39-17-417 provides that (a) it is

an offense for a defendant to knowingly: (4) possess a controlled substance with intent

to manufacture, deliver or sell such controlled substance.

      Viewing the evidence in the light most favorable to the state, the jury heard

evidence that a confidential informant reported to Sergeant Long that the defendant

was conducting drug sales from his vehicle. The informant went further to describe the

vehicle and its current location. This information was confirmed by Sergeant Long

when he arrived on the scene and saw both the vehicle and the defendant. After a

narcotics dog alerted on the trunk of the defendant’s vehicle and a gym bag inside the

trunk, the officers removed large quantities of crack cocaine and marijuana from the

gym bag. A set of postal scales was also found in the trunk.

       According to his statement given at the police station, the defendant admitted

that the drugs belonged to him. He added that he “was called to bring someone some

drugs in exchange for money. It was a set up, because I didn’t have to do it.” Sergeant

Long testified as to the street value of both the marijuana and crack cocaine.

       The defendant argues that no evidence existed to show that he had an intent to

deliver the cocaine and marijuana. However, the amount of drugs and other relevant

facts and circumstances allow the inference that the defendant possessed the intent to

deliver the cocaine and marijuana. State v. Bledsoe, 626 S.W.2d 468 (Tenn. Crim.

App. 1981). Here, not only did the officer testify to the large amount of cocaine and

marijuana and its street value, the testimony also indicated that a set of scales was



                                            4
found in the trunk of the vehicle.

       In further support of his argument, the defendant points to testimony that he told

Officer Campbell that it was a “setup,” that the informant really wanted the defendant’s

brother to bring him the drugs,” and that he did give officers consent to search the

vehicle. The defendant also added that he implicated himself in the statement only to

insure the release of his girlfriend who was a passenger in the vehicle at the time of the

arrest. Additionally, the defendant wanted the jury to believe that, based on the

testimony of Ms. Banks, others drove the vehicle. However, none of these assertions

are convincing.

       Each of these assertions constitutes a credibility challenge. As cited above,

issues of credibility are a function of the jury. This Court will not usurp that function.

This sufficiency of the evidence argument, in its entirety, is without merit.



                                       CONCLUSION

       Having reviewed the record and submitted briefs, this Court concludes that the

decision of the trial court is AFFIRMED.




                                           ROBERT W. WEDEMEYER, Special Judge



CONCUR:




JOE G. RILEY, Judge




CURWOOD W ITT, Judge




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