             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                              July 9, 2002 Session

             STATE OF TENNESSEE v. LARENZO DESHAWN HARRIS1

                       Direct Appeal from the Circuit Court for Carroll County
                             No. 01CR-1682    C. Creed McGinley, Judge



                        No. W2001-02626-CCA-R3-CD - Filed August 30, 2002


The defendant was convicted of possession of a Schedule II controlled substance with the intent to
manufacture, deliver, or sell, a Class B felony; possession of a Schedule VI controlled substance with
the intent to manufacture, deliver, or sell, a Class E felony; and possession of drug paraphernalia,
a Class A misdemeanor. Following the denial of his motion for a new trial, he filed a timely appeal
to this court, challenging the sufficiency of the evidence in support of his convictions. We affirm
the defendant’s convictions. However, because the jury assessed, and the trial court imposed, a fine
for possession of a Schedule VI controlled substance that exceeds the statutory maximum, we
remand the case to the trial court for a new jury to be impaneled to assess an appropriate fine in
Count 2 and for entry of a corrected judgment as to the possession of drug paraphernalia conviction
in Count 3.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE , JJ., joined.

Stephen D. Jackson, Jackson, Tennessee, for the appellant, Larenzo Deshawn Harris.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael
W. Catalano, Associate Solicitor General; G. Robert Radford, District Attorney General; and Eleanor
Cahill, Assistant District Attorney General, for the appellee, State of Tennessee.




         1
           W e note that the defendant’s first name appears in the record as both “Larenzo” and “Lorenzo.” It is the policy
of this court, how ever, to spell the defendant’s name as it app ears on the indictment.
                                              OPINION

        On January 11, 2001, Huntingdon police officers, acting on a tip from a confidential
informant that the defendant, Larenzo Deshawn Harris, was selling cocaine and marijuana from his
residence, executed a search warrant at 199 Sixth Avenue in Huntingdon. Among other items the
officers uncovered in the search were 3.1 grams of cocaine, 37.2 grams of marijuana, $375 in cash,
plastic zip-lock sandwich bags, and a set of hand scales. The defendant was arrested at the scene,
and subsequently indicted on one count of possession of a Schedule II controlled substance (cocaine)
with the intent to manufacture, deliver, or sell, a Class B felony; one count of possession of a
Schedule VI controlled substance (marijuana) with the intent to manufacture, deliver, or sell, a Class
E felony; and one count of possession of drug paraphernalia with the intent to use, a Class A
misdemeanor.

        Sergeant Johnny Hill of the Huntingdon Police Department testified at the defendant’s
September 7, 2001, trial that he was a criminal investigator with years of experience and training in
the detection of drugs. He said that he obtained the search warrant for the defendant’s residence
based on the tip from the confidential informant, who had provided reliable information in the past,
and on the observations of police officers, who had watched the house for several days and seen a
large amount of traffic coming and going from the front door. He and fellow officers arrived to
execute the warrant at approximately 10:30 p.m. on January 11, 2001, pulling their vehicle into the
front yard of the residence and stepping from it directly onto the porch.

        The defendant met the officers at the front door, and was directed to sit on a living room
couch. Another individual who was present in the house when the officers entered ran toward the
back, and an officer followed her. Sergeant Hill remained in the living room, keeping his eyes on
the defendant. As the defendant sat down, Sergeant Hill noticed him bend down and reach under
the couch with one hand, in a motion that Sergeant Hill interpreted as placing an item under the
couch. When Sergeant Hill looked in the area where the defendant had reached, he found “two . .
. small plastic bags rolled up with some crack cocaine in them.” Sergeant Hill said that the total
weight of the cocaine, which was packaged separately, was 3.1 grams, which is about the size of
what is commonly referred to as an “8 ball of cocaine.” He explained that the usual practice is for
smaller sized rocks, often about one-twentieth of a gram, to be broken off a larger eight-ball for
individual sale. He estimated that the total street value of the drug was “12 hundred dollars or
more.”

        In addition to the cocaine, Sergeant Hill also found fourteen small sandwich bags of
marijuana, packaged in the typical manner for individual sale, together inside a larger plastic bag that
was underneath the cushion on which the defendant was sitting. He said that the total value of the
marijuana, at $20 per bag, was approximately $280. Officers also seized $375 in cash from the
defendant’s person. Sergeant Hill testified that he had known the defendant for some time, and that,
to his knowledge, he had never had a job. Other items uncovered in the search were a partially
smoked “blunt,” (i.e., marijuana rolled up into a piece of tobacco), several empty plastic zip-lock
bags similar to the ones in which the marijuana was packaged, a set of hand scales used to weigh


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marijuana, and a small two-way radio. Sergeant Hill testified that police officers were increasingly
finding two-way radios used in the drug trade as a method for “lookouts” to radio warnings to drug
dealers about the presence and activities of police officers. He said that the hand scales and some
of the plastic zip-lock bags were discovered in a bedroom that contained a man’s clothing and a jail
property bag with the defendant’s name on it. Other plastic bags were discovered in the kitchen, and
the partially smoked blunt was discovered inside a small box that was in another bedroom. The only
other individuals present in the home when the search was conducted were the defendant’s mother,
Stephanie Harris, and the defendant’s sister. Neither had gone near the couch where the cocaine and
marijuana were found. The defendant’s mother was charged as a codefendant in the case, and
subsequently pled guilty to lesser charges.

        Sergeant Hill testified on cross-examination that the house was rented to the defendant’s
aunt, an elderly lady who was not present when the search was executed. To his knowledge and
based upon his observations of the house over the previous few days, the defendant was the only
adult male living in the home. He did not observe anything in the defendant’s hand, either when the
defendant met the officers at the door, or when he sat down on the couch. Nor did he see the
defendant reach into his pockets before he made the gesture that led Sergeant Hill to believe he had
placed something under the couch. Sergeant Hill agreed he probably would have seen the large bag
of marijuana in the defendant’s hand had the defendant placed it under the cushion after the officers
entered the house. He acknowledged that none of the items recovered in the search were
fingerprinted. He said that the defendant’s mother was charged as a codefendant approximately one
week later due to her knowledge of, and participation in, the defendant’s drug selling activities in
the home.

       Brian Lee Eaton, a forensic scientist with the Tennessee Bureau of Investigation Crime
Laboratory in Jackson, testified that he received two different substances to analyze in connection
with the case: a plant material, which he determined to be marijuana, and a rock-like substance,
which he determined to be 3.1 grams of cocaine. He identified the substances, which were admitted
as exhibits. He acknowledged on cross-examination that he had not been asked to conduct
fingerprint analyses of the substances.

        The defendant elected not to testify, and no witnesses were presented on his behalf. After
deliberating, the jury found him guilty of each count of the indictment, setting fines of $65,000 for
the possession of a Schedule II controlled substance conviction, $50,000 for the possession of a
Schedule VI controlled substance conviction, and $500 for the possession of drug paraphernalia
conviction. Following a sentencing hearing, the trial court sentenced the defendant to concurrent
terms of eleven years in the Department of Correction for possession of a Schedule II controlled
substance, two years in the Department of Correction for possession of a Schedule VI controlled
substance, and eleven months, twenty-nine days in the county jail for possession of drug




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paraphernalia.2 The trial court noted that the defendant had committed the instant offenses while on
probation for a prior conviction for sale of a Schedule II controlled substance. Consequently, the
trial court ordered that the sentences be served consecutively to the defendant’s sentence on the prior
drug conviction.

                                                     ANALYSIS

                                          Sufficiency of the Evidence

        The sole issue the defendant raises on appeal is whether the evidence was sufficient to
support his convictions. When the sufficiency of the convicting evidence is challenged, the relevant
question of the reviewing 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
charged beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.
Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt
in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient
to support the findings by the trier of fact of guilt beyond a reasonable doubt.”). This rule is
applicable to findings of guilt based on circumstantial, as well as direct, evidence. See State v.
Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961).

        In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the
evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Hatchett, 560 S.W.2d 627,
630 (Tenn. 1978). Neither does this court substitute its inferences for those of the trier of fact in
circumstantial evidence cases. Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956); Farmer v. State,
574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). To the contrary, we are required to give the State the
strongest legitimate view of the evidence contained in the record, as well as all reasonable inferences
that can be drawn from it in support of the convictions. Cabbage, 571 S.W.2d at 835.

         All questions involving the credibility of witnesses, the weight and value to be given the
evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory
of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the
presumption of innocence with which a defendant is initially cloaked and replaces it with one of
guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is
insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).




         2
         Although the defendant was convicted of possession of drug paraphernalia in Count 3 of the indictment, the
judgment form erroneously shows both that the defendant was convicted of this offense and that the charge was
dismissed. Accordingly, although affirming the conviction for this offense, we remand for entry of a corre cted judgm ent.

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         The defendant contends that the evidence was insufficient to prove beyond a reasonable
doubt his actual or constructive possession of the drugs and drug paraphernalia found in the home.
He asserts that the proof was not sufficient to show that he placed the cocaine underneath the couch
or possessed or even knew of the marijuana under the cushion. He further asserts that the jail
property bag and male clothing found in the bedroom were not sufficient to establish he was a
permanent resident of the home. He points out that his mother pled guilty to possessing the drugs
and paraphernalia found in the home, and argues that neither his mere presence at the scene, nor
association with his mother, is sufficient to show that he possessed the cocaine, marijuana, and drug
paraphernalia at issue in the case. The State responds that the evidence was sufficient for the jury
to infer the defendant’s constructive and joint possession of the drugs and drug paraphernalia found
in the home.

        In order to convict the defendant of possession of a Schedule II controlled substance with the
intent to manufacture, deliver, or sell, a Class B felony, the State had to prove that the defendant
knowingly possessed more than .5 grams of cocaine with the intent to manufacture, deliver, or sell
it. See Tenn. Code Ann. § 39-17-417(a)(4), (c)(1) (1997). To convict the defendant of possession
of a Schedule VI controlled substance with the intent to manufacture, deliver, or sell, a Class E
felony, the State had to show that he knowingly possessed not less than one-half ounce nor more than
ten pounds of marijuana with the intent to manufacture, deliver, or sell it. See Tenn. Code Ann. §
39-17-417(a)(4), (g)(1) (1997). Finally, to convict him of possession of drug paraphernalia, a Class
A misdemeanor, the State had to show that he used or possessed with the intent to use drug
paraphernalia to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert,
produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale,
or otherwise introduce into the human body a controlled substance[.]” Tenn. Code Ann. § 39-17-
425(a)(1) (1997).

       Possession of drugs and drug paraphernalia may occur either alone or jointly with others.
See State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). Possession may also be
constructive as well as actual. See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001); State v.
Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996); State v. Cooper, 736 S.W.2d 125, 129
(Tenn. Crim. App. 1987). “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.” Copeland, 677 S.W.2d at 476 (citation omitted).

        An individual’s mere presence in an area in which drugs are found, or association with
another individual in possession of drugs, is not, alone, sufficient to establish constructive
possession. Shaw, 37 S.W.3d at 903 (citing State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim.
App. 1997); Cooper, 736 S.W.2d at 129). In this case, however, there was evidence to show that the
defendant was more than the uninformed and unaware visitor to the home he claims to have been.
The defendant was home when the officers arrived to execute the search warrant and met them at
the door. Men’s clothing and a jail property bag bearing the defendant’s name were found in one
of the bedrooms of the house. Having watched the house for several days, Sergeant Hill was not


                                                  -5-
aware that any other man lived at the home. The hand scales used to weigh marijuana and plastic
bags similar to those in which the marijuana was packaged were found in the bedroom which, from
every indication, was that of the defendant. Possession of premises in which contraband is found
creates an inference that the possessor had possession of the contraband. See Transou, 928 S.W.2d
at 956; Armstrong v. State, 548 S.W.2d 334, 336 (Tenn. Crim. App. 1976). The cocaine was found
underneath the couch on which the defendant was sitting, in the exact spot where Sergeant Hill had
observed him reaching, and the marijuana was found almost directly underneath the defendant’s
body, under the cushion on which he was sitting. This evidence was sufficient for a rational trier of
fact to infer the defendant’s constructive, joint possession with his mother of the drugs and drug
paraphernalia found in the home.

         Moreover, a rational trier of fact could have reasonably concluded from the evidence that the
defendant’s possession of the drugs and drug paraphernalia was for the purpose of drug-selling
activities he was conducting from the home. We, therefore, conclude that the evidence was
sufficient to convict the defendant of possession of cocaine with the intent to manufacture, deliver,
or sell; possession of marijuana with the intent to manufacture, deliver, or sell; and possession of
drug paraphernalia. See State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001) (registration for and
payment for hotel room, plus finding of defendant’s items in the room, and his possession of a room
key, resulted in inference that he possessed drugs in room); Patterson, 966 S.W.2d at 445 (defendants
on the premises and in same areas where cocaine and drug paraphernalia were found constructively
possessed both).

        The State has noted that the $50,000 fine imposed for the defendant’s conviction for
possession of a Schedule VI controlled substance exceeds the maximum fine of $5000 authorized
by Tennessee Code Annotated section 39-17-417(g)(1). Because the Tennessee Constitution
provides every citizen the right to have a jury of his peers assess any fine in excess of $50, see Tenn.
Const. art. VI, § 14, this court may not reduce the fine that was erroneously approved and imposed
by the trial court. See State v. Martin, 940 S.W.2d 567, 570-71 (Tenn. 1997). “However, it is
permissible to remand the case for a determination on the issue of the fine alone, so that defendant
may have a jury assess a fine within the statutory limits.” State v. John William Kuhlman, No.
01C01-9702-CC-00059, 1998 Tenn. Crim. App. LEXIS 452, at *9 (Tenn. Crim. App. Apr. 13,
1998), perm. to appeal denied (Tenn. Jan. 19, 1999). Accordingly, we affirm the defendant’s
convictions, but remand the case to the trial court to impanel a jury to fix an appropriate fine in
Count 2 and for entry of a corrected judgment as to the possession of drug paraphernalia conviction
in Count 3.


                                                        ___________________________________
                                                        ALAN E. GLENN, JUDGE




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