                                                                                            05/27/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs April 8, 2020

            STATE OF TENNESSEE v. BUDDY WAYNE MOONEY

                 Appeal from the Circuit Court for Henderson County
                         No. 18211-2 Donald H. Allen, Judge


                             No. W2019-01309-CCA-R3-CD


The Defendant, Buddy Wayne Mooney, was convicted by a Henderson County Circuit
Court jury of possession with intent to sell 0.5 gram or more of methamphetamine, a
Class B felony; possession with intent to deliver 0.5 gram or more of methamphetamine,
a Class B felony; possession of drug paraphernalia, a Class A misdemeanor; and unlawful
possession of a firearm with the intent to go armed during the commission of a dangerous
felony, a Class D felony. See T.C.A. §§ 39-17-417(a) (2018) (subsequently amended)
(possession of methamphetamine), 39-17-1324 (2018) (subsequently amended)
(possession of a firearm), 39-17-425 (2018) (possession of drug paraphernalia). The trial
court merged the two possession of methamphetamine convictions and imposed a ten-
year probationary sentence, and it imposed sentences of eleven months and twenty-nine
days in jail for the possession of drug paraphernalia conviction and three years in the
Department of Correction for the weapon possession conviction. The court ordered the
sentence for possession of methamphetamine to be served consecutively to the sentence
for possession of drug paraphernalia. The court imposed the sentence for firearm
possession consecutively to the sentence for methamphetamine possession but
concurrently to the sentence for possession of drug paraphernalia. The effective sentence
was thirteen years. On appeal, the Defendant contends that (1) the evidence is
insufficient to support his felony convictions and (2) that the trial court erred in admitting
evidence that the gun found inside the Defendant’s car had been stolen. We affirm the
judgments of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which CAMILLE
R. MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Samuel W. Hinson, Lexington, Tennessee, for the Appellant, Buddy Wayne Mooney.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody Pickens, District Attorney General; Angela Scott, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The Defendant’s convictions relate to his having been found asleep or
unconscious in his car on May 11, 2018. Methamphetamine, a glass pipe, digital scales,
and a handgun were found in a consensual search of the car. A search of the Defendant
revealed $847 in his wallet.

                                         Pretrial

        The Defendant was charged with the offenses in the present case in one
indictment, and he was charged with theft in a separate indictment after evidence
emerged that the firearm found in his car on May 11, 2018, had been stolen on January
31, 2018. The Defendant moved to consolidate the cases, and the State did not oppose
the motion. At a hearing on the motion held the day before the scheduled trial date for
the May 11 offenses, the prosecutor advised the trial court that she had been unable to
reach the victim of the theft charge and “the TBI person” by telephone. The prosecutor
advised the court that a defense witness had been subpoenaed but had not been served
with the subpoena. Defense counsel stated that this witness would testify that the witness
had sold the gun to the Defendant. Defense counsel stated that he had filed the motion to
consolidate “for efficiency purposes.” He said, “We could move forward tomorrow on
the trial we have for tomorrow without that witness, but for the docket number alleging
the theft, I do need the witness for that purpose.” Defense counsel stated that the witness
had been cooperative, that the witness was local, and that counsel did not know “where
he’s gone to.” The court stated that due to the problems the defense might have if the
cases were consolidated, it would take the matter under advisement. The court stated that
if the defense were able to have the witness present on the following day for the trial, it
“might consider the possibility of consolidating these cases.”

                                           Trial

       The present case proceeded to trial the following day without consolidation with
the theft case. At the trial, Henderson County Sheriff’s Sergeant Mark Wood testified
that he was on duty on May 11, 2018, and that he responded to a 6:35 a.m. call regarding
an unresponsive man in a car in front of a community center. He said that when he
arrived, emergency medical responders were already at the scene. Sergeant Wood said
that he asked the Defendant “what was going on” and that the Defendant stated he had
pulled over and had fallen asleep. Sergeant Wood said that after he checked the
Defendant’s identification, he asked the Defendant to get out of the car, and at that point,

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Sergeant Wood saw a glass pipe in the driver’s floorboard. Sergeant Wood said he was
familiar with pipes of the type he saw in the Defendant’s floorboard as being commonly
used for methamphetamine consumption. Sergeant Wood said the Defendant stated the
pipe was not his.

       Sergeant Wood testified that the Defendant consented to a search of the car.
Sergeant Wood said that he found a black bag on the passenger seat and that the bag
contained a white crystalline substance inside a clear cellophane bag and digital scales.
He suspected the substance was methamphetamine. In the passenger floorboard,
Sergeant Wood found a black bag containing a nine-millimeter pistol. He said the gun
had a round of ammunition in the chamber and five rounds in the magazine. He said the
bag contained an additional magazine containing seven rounds. Sergeant Wood said that
he asked the Defendant about the gun and that the Defendant stated he had purchased the
gun recently and had not had time to register it. Sergeant Wood said he checked the
gun’s registration later and that “[i]t came back stolen.” Sergeant Wood said that when
he searched the Defendant incident to the arrest, he found $847 in the Defendant’s wallet.
Sergeant Wood stated that the Defendant advised him that the Defendant was
unemployed and that the Defendant had borrowed the car.

        Sergeant Wood testified that he noticed characteristics associated with
methamphetamine use when he talked to the Defendant. Sergeant Wood said that the
Defendant’s pupils were dilated, that the Defendant was “fuzzy on his details,” and that
he asked the Defendant to get out of the car in order to assess whether the Defendant
should drive. Sergeant Wood said the Defendant had difficulty standing. Sergeant Wood
said, “It was a borderline case as far as looking at DUI on the situation.”

       Sergeant Wood agreed that if he arrested someone who possessed more than 0.5
gram of methamphetamine he would charge them “with possession with intent
automatically” and said this was “[b]y the law.” He agreed that a person might possess
that much methamphetamine solely for personal use. He said that in charging the
Defendant, he took into account the totality of the circumstances, which included the
weight of the methamphetamine, the scales, the pipe, the $847, and the fact the Defendant
stated he was unemployed.

       Sergeant Wood agreed that the caller who reported having seen the Defendant
unresponsive in the car had not said the Defendant had been selling drugs in the parking
lot. Sergeant Wood said the authorities had not known initially if the call might be
related to a medical issue. He agreed the methamphetamine he found in the Defendant’s
car had been the size of a grape or large marble and said it was referred to “on the street”
as an “eight ball.” He said he did not know if it was uncommon for a methamphetamine
user to purchase an eight ball for personal consumption.


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       Sergeant Wood testified that drug buyers often used scales to verify the weight of
their purchases and that they used them to weigh what they sold to others. He agreed that
the scales in the Defendant’s car might have been used to verify the weight of the
Defendant’s purchases.

      Sergeant Wood agreed that he had written in his report that the pipe found in the
Defendant’s car appeared to contain methamphetamine residue and showed signs of
heavy use. Sergeant Wood stated that he did not administer a drug test to the Defendant.

      Tennessee Bureau of Investigation (TBI) Special Agent Forensic Scientist Rachel
Strandquist testified that she analyzed a crystalline substance related to this case and
prepared a report of her findings, which was received as an exhibit. She said her analysis
showed that the substance was 3.43 grams of methamphetamine.

        Lexington Police Narcotics Investigator Ricky Montgomery, an expert in narcotics
trafficking, testified that he had participated in undercover narcotics purchases using
confidential informants in Henderson County. He said he tried to conduct six to nine
transactions per week. He said that the normal amount of methamphetamine purchased
in one transaction was one gram and that the price was typically around $100 per gram,
although it was lower than usual at the time of the trial at $60 per gram. He said he had
purchased eight balls of methamphetamine but typically did not because the expense was
too great, given his budget. He said that the current price for an eight ball was around
$150 but that “[b]ack in the day,” the price had been $250 to $300. He said that one
gram was the typical quantity sold in Henderson County.

        Investigator Montgomery testified that methamphetamine users ingested the drug
by injecting it or smoking it in a glass pipe. In his opinion, a person who possessed
digital scales sold drugs, and it would be “very uncommon” for a drug user to possess
digital scales. He said that when he used confidential informants for drug purchases, he
did not send them to make purchases with digital scales. He said “a large majority” of
the people he encountered both used and sold methamphetamine. He said it would not be
uncommon for a methamphetamine user to use one gram per day.

        Investigator Montgomery testified that guns and weapons were used in drug
trafficking for dealers to protect themselves from being robbed of their drugs and cash.
He testified that in his experience, the amount of drugs involved in this case was
possessed for sale, not personal use. He acknowledged that a methamphetamine user
might purchase an eight ball for personal use. When asked if, in the course of his
employment, he had heard about the Defendant’s trying to sell drugs, he said, “I have
heard [the Defendant’s] name, but I’ve never dealt with him personally.” He agreed he
had never had a reason to believe the Defendant sold methamphetamine. He agreed that
a drug dealer might possess a glass pipe in order to use methamphetamine or to allow a

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purchaser to try the drugs. He said that drug dealers sometimes wanted a purchaser to
use methamphetamine as part of the transaction in order to show that the purchaser was
not a member of law enforcement.

       The defense elected not to offer evidence. The jury found the Defendant guilty of
the charged offenses. This appeal followed.

                                             I

                               Sufficiency of the Evidence

      The Defendant contends that the evidence is insufficient to support his felony
convictions because the State failed to prove the intent element of the offenses. The State
responds that the evidence is sufficient. We agree with the State.

        In determining the sufficiency of the evidence, the standard of review 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 beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence
and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The
appellate courts do not “reweigh or reevaluate the evidence,” and questions regarding
“the credibility of witnesses [and] the weight and value to be given the evidence . . . are
resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State
v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

        “A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.
Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)).

A.     Possession of Methamphetamine

     “It is an offense for a defendant to knowingly: . . . Deliver a controlled substance[;]
. . . Sell a controlled substance; or . . . Possess a controlled substance with intent to
manufacture, deliver or sell the controlled substance.” T.C.A. § 39-17-417(a)(2)-(4)
(2018). Methamphetamine is classified as a Schedule II controlled substance. Id. § 39-
17-408(d)(2) (2018). As relevant here, a person “acts knowingly with respect to the
conduct or to circumstances surrounding the conduct when the person is aware of the
nature of the conduct or that the circumstances exist.” Id. § 39-11-302 (2018). “It may

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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
substance or substances were possessed with the purpose of selling or otherwise
dispensing.” Id. § 39-17-419 (2018).

       Viewed in the light most favorable to the State, the evidence shows that the
Defendant possessed 3.43 grams of methamphetamine, digital scales, a glass pipe, a
loaded weapon, and $847. The Defendant told Sergeant Wood that he was unemployed
and that the glass pipe was not his. Investigator Montgomery testified that one gram was
the typical amount purchased in a single transaction by methamphetamine users in
Henderson County. He said that drug users often also sold drugs. He testified, as well,
that sellers typically possessed digital scales but that buyers typically did not. He said a
seller might possess a pipe and require a purchaser to use methamphetamine during a
transaction in order to prove the purchaser was not a member of law enforcement. He
said drug dealers often possessed firearms in order to protect themselves from theft of
drugs and money.

       This court has said that items such as scales and weapons near drugs or a
defendant are appropriately considered in determining whether a defendant had the
requisite intent to possess drugs for sale or delivery. See, e.g., State v. Phillip Francis
Morales, No. E2001-01768-CCA-R3-CD, 2003 WL 21297308, at *8 (Tenn. Crim. App.
June 5, 2003). The Defendant’s possession of large amounts of methamphetamine and
cash, coupled with his statement that he was unemployed, provide additional support for
a conclusion that he knowingly possessed the methamphetamine for sale or delivery. See
T.C.A. § 39-17-419. We conclude that the evidence is sufficient to support the
Defendant’s convictions for possession with intent to sell and possession with intent to
deliver methamphetamine.

B.     Possession of a Firearm

       The Defendant contends that the evidence is insufficient to support his conviction
for possession of a firearm with the intent to go armed during the commission of a
dangerous felony because (1) the proof was insufficient of his guilt of a dangerous felony
and (2) “the gun was in a closed bag on the passenger side floorboard completely out of
[the Defendant’s] reach.” The State counters that the Defendant has mischaracterized the
evidence because Sergeant Wood did not testify that the gun was out of the Defendant’s
reach.

       “It is an offense to possess a firearm or antique firearm with the intent to go armed
during the commission of or attempt to commit a dangerous felony.” Id. § 39-17-
1324(a). A felony offense involving possession with the intent to sell or to distribute a
controlled substance is a dangerous felony. Id. at (i)(1)(L).

                                            -6-
        As we have stated, the evidence is sufficient to support the Defendant’s possession
with intent to sell or deliver convictions. The evidence shows, as well, a loaded handgun
was in a bag in the passenger floorboard of the car in which the Defendant was found
with the drugs, scales, money, and glass pipe. Because the Defendant did not have the
firearm on his person, we will consider whether the evidence is sufficient to establish that
he was in constructive possession of it. “Constructive possession requires that a person
knowingly have the power and the intention at a given time to exercise dominion and
control over an object, either directly or through others. In essence, constructive
possession is the ability to reduce an object to actual possession.” State v. Copeland, 677
S.W.2d 471, 476 (Tenn. Crim. App. 1984). A person has constructive possession of a
firearm who “has the power and ability to exercise control over the firearm.” Key v.
State, 563 S.W.2d 184, 188 (Tenn. 1978).

       Viewed in the light most favorable to the State, the evidence showed that the
Defendant was seated in the driver’s seat of a car with a bag containing the firearm in the
passenger’s floorboard. Contrary to the Defendant’s characterization of the evidence,
Sergeant Wood did not testify that the gun “was completely out of [the Defendant’s]
reach.” Rather, the evidence shows that the gun was located in a place where the
Defendant, whose car was parked, had power over and the ability to exercise control of
the gun. We conclude that the evidence is sufficient to support the Defendant’s
conviction for possession of a firearm during the commission of a dangerous felony.

        Because the evidence is sufficient to support the Defendant’s convictions, he is not
entitled to relief on this basis.

                                             II

                                 Admission of Evidence

        The Defendant contends that the trial court erred in admitting Sergeant Wood’s
testimony that the gun found in the Defendant’s car had been stolen. The Defendant
argues that the evidence was irrelevant and prejudicial and that his right to due process
was violated by its admission. The State counters that the court did not abuse its
discretion in determining that the evidence was relevant and admissible but that even if
the Defendant is correct, the error was harmless. We conclude that the Defendant is not
entitled to relief.

       Evidence is relevant and generally admissible when it has “any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tenn. R. Evid. 401,
402. Questions regarding the admissibility and relevance of evidence generally lie within

                                            -7-
the discretion of the trial court, and the appellate courts will not “interfere with the
exercise of that discretion unless a clear abuse appears on the face of the record.” State v.
Franklin, 308 S.W.3d 799, 809 (Tenn. 2010) (citing State v. Lewis, 235 S.W.3d 136, 141
(Tenn. 2007)). Relevant evidence, however, “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Tenn. R. Evid. 403.

      A trial court abuses its discretion when it applies an incorrect legal standard or
reaches a conclusion that is “illogical or unreasonable and causes an injustice to the party
complaining.” State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006).

      The record reflects that the Defendant objected to Sergeant Wood’s testimony that
the gun had been reported as stolen and that the trial court found, “I think it’s relevant
whether or not the defendant admitted that he was in possession of the gun or not. If it
comes back that it was stolen then I think that can be relevant as well.”

       Although the Defendant’s possession of a gun was relevant to the charged offenses
of possession of methamphetamine with the intent to sell and deliver and possession of a
firearm during the commission of a dangerous felony, whether the gun was stolen had no
bearing on the question of the Defendant’s guilt or innocence of these charges. See Tenn.
R. Evid. 401, 402. Because the evidence was not relevant, the court erred in admitting it.
The Defendant bases a portion of his argument on Tennessee Rule of Evidence 403,
which excludes evidence if its probative value is substantially outweighed by the danger
of unfair prejudice. Because we have concluded that the evidence that the gun was stolen
had no probative value, it is unnecessary to engage in the balancing test of Rule 403.

       The question which remains is whether the Defendant is entitled to a new trial. In
that regard, he argues that the evidence was highly prejudicial and that he was denied due
process because, had he known the trial court would admit the evidence, he could have
filed a motion to continue in order to have the opportunity to present a defense witness
who would testify that the Defendant had purchased the handgun and that it was not
stolen. This witness was the individual he referenced at the pretrial hearing regarding
consolidation of this case with the Defendant’s theft case related to the firearm.

       Sergeant Wood testified that the Defendant told him at the scene that he had
purchased the gun recently but had not had time to register it. Thus, there was
countervailing proof regarding the status of the gun. In any event, the danger of the jury
placing undue weight on the evidence that the gun was stolen was insignificant in view of
the overwhelming evidence of the Defendant’s guilt. With regard to the Defendant’s due
process argument related to his inability to call a defense witness to rebut the evidence
that the gun had been stolen, we note that the defense did not ask for a recess or a

                                            -8-
continuance during the trial in order to compel the appearance of the witness with alleged
knowledge that the gun was not stolen. The defense was aware of the allegation that the
gun had been stolen because the Defendant had been charged with theft of the gun and
faced trial on that charge. Indeed, the theft case was the one that the defense initially
moved to have consolidated with the present case, and the defense was aware of a witness
who it anticipated would rebut the theft allegation. We conclude that the Defendant has
not shown that his due process rights were violated by the admission of this evidence.
Any error in the admission of the evidence was harmless.

        In consideration of the foregoing and the record as a whole, the judgments of the
trial court are affirmed.


                                           _____________________________________
                                            ROBERT H. MONTGOMERY, JR., JUDGE




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