             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                         Assigned on Briefs September 20, 2000 Session

               STATE OF TENNESSEE v. BRENTOL CALVIN JAMES

                 Appeal as of Right from the Criminal Court for Davidson County
                              No. 96-C-1737    Seth Norman, Judge



                     No. M1999-02533-CCA-R3-CD - Filed November 30, 2000


The appellant, Brentol Calvin James, was convicted by a jury in the Davidson County Criminal
Court of one count of possession of a weapon during the commission of an offense, a class E felony.
The trial court sentenced the appellant, as a Range I offender, to a one- year sentence of incarceration
in the Davidson County Workhouse. The appellant raises the following issue for our review:
whether the trial court erred in allowing a verdict to stand when there was insufficient evidence, as
a matter of law, to support the conviction. Upon review of the record and the parties’ briefs, we
reverse the judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID H. WELLES, and JOE
G. RILEY, JJ., joined.

V. Michael Fox, Nashville, Tennessee, for the appellant, Brentol Calvin James.

Paul G. Summers, Attorney General and Reporter, Todd R. Kelley, Assistant Attorney General, and
John C. Zimmerman, Assistant District Attorney General, for the appellee, State of Tennessee.

                                                     OPINION

                                     I. Factual Background
              On May 3, 1996, pursuant to an informant’s tip, the Metropolitan Nashville police
had Century Motors, a business owned by the appellant, Brentol Calvin James, under surveillance.1
The police suspected that person(s) on the premises were selling marijuana. Sergeant James
McWright, a narcotics officer with the Metro Police Department, set up surveillance at the rear of


         1
            In the record, the appellant’s name is spelled as “Brentol” and as “Brentnol.” However, as is the custom of
this court, we hav e used the sp elling containe d in the charging ins trument. See State v. McCamey, No. 03C01-9601-CC-
00037, 1997 WL 55935, at *4 n. 1 (Tenn. Crim. App. at Knoxville, February 12, 1997). Additionally, we note that the
record re fers to the app ellant’s business a s “Century M otors” and as “Sentry M otors.”
Century Motors.2 He observed the appellant casually wandering around the premises. Sgt.
McWright also witnessed Luis Rodriguez, one of the appellant’s co-defendants, repeatedly enter a
Toyota van and a Dodge van, depositing and removing garbage bags and boxes of unidentified
material. Subsequently, two men driving a Honda arrived at the location and talked with Ramiro
Torres, another co-defendant. Rodriguez gave Torres a bag from the Toyota van. Torres tossed the
bag into the Honda. After the men left Century Motors, police stopped the Honda and discovered
that the bag Torres had thrown into the vehicle contained three pounds of marijuana.

               Additionally, Officer Phillip Andrew Wright of the Metro Police Department watched
the front of Century Motors. He observed Arnold James meet with Michael Richardson.
Richardson entered Century Motors and thirty minutes later came back out. Richardson looked
around to see if he was being watched. He then gestured to James to come out of the building.
James headed towards Richardson’s car carrying a box. Furthermore, Sgt. McWright had earlier
observed James remove a box from the Toyota van. The police moved in and executed a search
warrant on the premises. They discovered that the box carried by James contained five pounds of
marijuana. This incident provided the basis for count one of the indictment.

               During the execution of the search warrant, the police discovered fourteen one-pound
bags of marijuana in the Toyota van. Additionally, the police found $9,190 in a trash bag in the
Dodge van and $4,750 in a jacket in the workshop of Century Motors. However, the police were
unable to determine the ownership of the vans or the jacket. Moreover, the police unearthed zip-lock
bags, garbage bags, and scales in the junkyard next-door to Century Motors, at the same location in
the junkyard that the police had observed Rodriguez repeatedly visit. No drugs were found inside
Century Motors. The discovery of these drugs in the Toyota van was the basis for count two of the
indictment.

                Before the police raided Century Motors, the appellant and Rodriguez left to meet
Steve Hoak, an individual who was working with the police to catch the appellant in the act of
selling drugs. The police had previously arrested Hoak for possession of thirty pounds of marijuana.
Hoak agreed to assist the police in catching his supplier, the appellant. Subsequently, the police and
Hoak devised a plan to obtain evidence of the appellant’s drug activities. Hoak was to meet with
the appellant and request an additional fifteen pounds of marijuana to sell in order to recoup the lost
profits on the thirty pounds of marijuana previously confiscated by the police. The police wired
Hoak for sound and made an audio tape of the meeting between Hoak and the appellant.

                The appellant and Rodriguez arrived at Hoak’s place of business to discuss the sale.
The appellant and Hoak did the majority of the talking. The appellant told Hoak that a person would
be stupid to give Hoak additional drugs after Hoak had lost the first batch. Hoak asserted that he lost
the thirty pounds of marijuana because the drugs were confiscated by the police when he was
arrested. However, the appellant did not believe that Hoak had been arrested. Hoak maintained that


         2
           The transcript of the trial also refers to S gt. McW right as “Sgt. McB ride.” It is the understanding of this court
that they are one and the same.

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he had papers at his house to prove that he had been arrested. The appellant instructed Hoak to get
the papers but informed Hoak that he did not think he could get more drugs for Hoak. Hoak told the
appellant that he would get the papers and meet the appellant again in two hours after Hoak picked
up his daughter. The appellant became angry and broke off Hoak’s truck key in the ignition. Hoak
became concerned about the appellant’s anger and stated on the audio tape of the conversation, “that
[guy] wants to shoot [me].” Moments later, Hoak said that something needed to be done because
the appellant was going for his gun. As a result, the police moved in. The police discovered a
loaded Star .9 mm automatic pistol underneath a shirt located behind the driver’s seat of the
appellant’s car. However, none of the officers observed the appellant moving toward his car where
the gun was located. Additionally, the police saw the appellant standing beside Hoak’s truck when
they arrived on the scene. There was testimony to suggest that Rodriguez was bending toward the
car. These facts constituted the basis for count four of the indictment.

                The appellant was tried in the Davidson County Criminal Court on counts one, two,
and four of the indictment. Count one of the indictment charged the appellant with delivery of not
less than one-half ounce nor more than ten pounds of marijuana. Count two of the indictment
charged the appellant with possession of not less than ten pounds nor more than seventy pounds of
marijuana with the intent to deliver. Count four of the indictment charged the appellant with
possession of a pistol with the intent to employ it in the commission of or escape from an offense.
The jury acquitted the appellant of counts one and two but found the appellant guilty of possessing
a weapon during the commission of an offense. The trial court sentenced the appellant, as a Range
I offender, to a one-year sentence of incarceration in the Davidson County Workhouse. The
appellant raises the following issue for our review: whether the trial court erred in allowing a verdict
to stand when there was insufficient evidence, as a matter of law, to support the convictions.

                                               II. Analysis
                 The appellant argues that there was insufficient evidence produced at trial to prove
that the appellant committed an offense; accordingly, the State failed to prove an essential element
of the possession of a weapon offense. Initially, we note that the State concedes that the evidence
is insufficient to convict the appellant of unlawful possession of a weapon during the commission
of an offense and asks that this court reverse the judgment of the trial court. On appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn therefrom. State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983). Put another way, the trier
of fact, and not this court, will 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. Pruett,788 S.W.2d 559, 561 (Tenn. 1990).

                Accordingly, this court gives considerable weight to a jury verdict in a criminal trial
because a jury conviction removes the presumption of the defendant’s innocence and replaces it with
one of guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Therefore, the appellant carries
the burden of demonstrating to this court why the evidence will not support the jury’s findings. Id.
To this end, the appellant must establish that no “reasonable trier of fact” could have found the



                                                  -3-
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); Tenn. R. App. P. 13(e).

                In order to sustain a conviction for possession of a weapon during the commission
of an offense, the State needed to prove that the appellant possessed a deadly weapon and the
appellant possessed the deadly weapon with the intent to employ it in the commission of or escape
from an offense. Tenn. Code Ann. § 39-17-1307(c)(1)(1997). Furthermore, a deadly weapon can
be a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death
or serious bodily injury. Tenn. Code Ann. § 39-11-106(a)(5)(1997). Accordingly, a pistol is a deadly
weapon. Additionally, this court has stated that “‘[p]ossession” may be actual or constructive.”
State v. Pittman, No. M1999-00320-CCA-R3-CD, 2000 WL 374755, at *3 (Tenn. Crim. App. at
Nashville, April 7, 2000), perm. app. dismissed, (Tenn. 2000). Constructive possession is essentially
the ability to reduce an object to actual possession. Id. There is no dispute that the pistol was
located in the appellant’s car. Furthermore, the appellant possessed the keys to his car and could
obtain actual possession of the pistol at any time. Accordingly, the State proved that the appellant
possessed the deadly weapon. However, the appellant argues that the State failed to prove the
remaining elements of the offense. The State concedes that the evidence was insufficient to convict
the appellant of possession of a deadly weapon during the commission of or escape from an offense.
We agree that the evidence is insufficient to support the appellant’s conviction.

                In order to convict the appellant, the State additionally had to prove that the appellant
possessed the weapon with the intent to employ it in the commission of, or escape from, an offense.
The appellant committed no offense while talking with Hoak. While the appellant may have
implicated himself in prior drug activity, the appellant repeatedly refused to supply Hoak with any
more marijuana on the occasion in question. There was no exchange of drugs or money relating to
a drug deal. Additionally, the sole evidence of the appellant’s “intent to employ” was the testimony
of Officer Danny Eddings stating that Rodriguez was bent over into the appellant’s car when the
police approached. Accordingly, the State failed to prove that the appellant possessed the pistol with
the intent to employ it during the commission of or escape from an offense.

                                      III. Conclusion
             Based upon the foregoing, we reverse the appellant’s conviction of possessing a
weapon during the commission of an offense and vacate the judgment of the trial court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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