         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                    March 19, 2008 Session

               STATE OF TENNESSEE v. TAFT ARKEY MURPHY

                     Appeal from the Criminal Court for Davidson County
                         No. 2004-B-1260    Monte Watkins, Judge



                       No. M2007-00403-CCA-R3-CD - October 27, 2008


The defendant, Taft Arkey Murphy, was convicted by a jury in the Criminal Court for Davidson
County of possession with intent to sell three hundred or more grams of cocaine in a school zone,
a Class A felony; possession with intent to sell twenty-six or more grams of cocaine in a school zone,
a Class A felony; sale of twenty-six or more grams of cocaine in a school zone, a Class A felony; two
counts of sale of twenty-six or more grams of cocaine, a Class B felony; and possession of a handgun
by a felon, a Class E felony. He was sentenced to eighteen years for each Class A felony, nine years
for each Class B felony, and two years for the Class E felony, to be served concurrently. The
defendant appeals and contends: (1) that the evidence is insufficient to convict him of possessing a
handgun as a felon, and (2) that he was improperly prejudiced by testimony that the defendant had
a murder charge. We affirm the judgments of the trial court.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR.,
and JOHN EVERETT WILLIAMS, JJ., joined.

Jay Norman, Nashville, Tennessee (on appeal), and Bill Collins, Nashville, Tennessee (at trial), for
the appellant, Taft Arkey Murphy.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Shannon Poindexter and John
Zimmerman, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        The evidence showed that a confidential informant arranged four drug sales with the
defendant. The first three sales occurred on January 30, February 10, and February 19, 2004, under
police surveillance. The record reveals that on January 30, 2004, the defendant sold the confidential
informant two ounces of crack cocaine for $1500. The confidential informant again purchased two
ounces of crack cocaine for $1500 from the defendant on February 10, 2004. On February 19, 2004,
the confidential informant bought two ounces of crack cocaine from the defendant in a school zone
for $1500. Following these three sales, the police obtained a search warrant for the defendant’s
home and an arrest warrant for the defendant. The fourth sale did not occur, as the police arrested
the defendant upon his arrival. This occurred within 1000 feet of a school. When arrested, the
defendant had bags of crack and powder cocaine, digital scales, and $187 secreted on him.

        The state’s confidential informant, Anthony Cruz, testified against the defendant regarding
the drug charges. Cruz stated he had worked with the state to set up drug sales with the defendant.
He acknowledged that he had a prior criminal record and that he had been on probation in both
federal and state court when he violated his probation. He said he had admitted in court that he had
violated his probation. He stated his attorney and state and federal prosecutors had negotiated an
agreement that he would cooperate with both sets of authorities in exchange for being allowed to
remain on probation. He explained why he identified the defendant as a drug dealer to the authorities
and how he arranged the four drug sales with the defendant.

        Metropolitan Nashville Police Detective Joe Simonik testified that officers obtained a search
warrant and searched 2101 Porter Road, where the defendant lived with his mother in one of her
homes. Detective Simonik said that he and other law enforcement officers had seen the defendant
leave the house and return to it on prior occasions. He stated that while executing the search warrant,
he had advised the defendant’s mother of her rights and that she said the defendant was her son. He
stated that she said only she and her son lived at the house. He said she identified the car parked
behind the house as the defendant’s. He stated the defendant’s mother also told officers which room
was her son’s.

        Detective Simonik stated that officers found hidden trash bags “stuff[ed]” with money in
various denominations in a closet in the defendant’s room. Detective Simonik stated that a .25
caliber handgun loaded with five bullets was found in the closet near these trash bags. He said that
officers found two other handguns, a .44 caliber pistol and a .32 caliber revolver, hidden under the
defendant’s dresser in the defendant’s room. Detective Simonik said the .44 pistol had been reported
as stolen. Detective Simonik said officers moved the dresser to photograph the guns. Detective
Simonik stated that three long-barreled guns were found in the living room area downstairs. He said
one gun found in the mother’s room had been reported as stolen, as well.

        Detective Simonik testified that officers found clothing they considered to be in the
defendant’s sizes in the defendant’s room. He said they also found some of the defendant’s
“paperwork,” including a bank card, bank statements, and bills with the defendant’s name on them.
Detective Simonik stated that another document found in the defendant’s room was a rent notice to
the defendant from his mother.

        Detective Simonik testified the defendant’s mother told the officers that the guns in the
defendant’s room were not hers. He said that officers had arrested the defendant and transported him
to 2101 Porter Road. The detective said the defendant was there during the time of the search. He
said the defendant’s mother was able to see that the defendant was in the house.


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         The charge of unlawful possession of a handgun by a convicted felon was submitted to the
jury as a bifurcated proceeding. The jury determined whether the defendant knowingly or recklessly
possessed a handgun at 2101 Porter Road and whether he was a convicted felon knowingly or
recklessly in possession of a handgun. The record includes each of the two indictments for count
three. After finding that the defendant possessed a handgun, the jury then heard the testimony of
Lisa Odle, the docket clerk for the Nashville Criminal Court, Division Five. She stated that the
name, gender, race, date of birth, and social security number of the defendant matched those in a
November 13, 1997 judgment convicting the defendant of voluntary manslaughter, a felony.

                           I. SUFFICIENCY OF THE EVIDENCE

        The defendant contends insufficient evidence exists to support the jury’s finding that he
physically or constructively possessed a handgun. He does not argue that his voluntary manslaughter
conviction is not a felony involving the use or attempted use of force, violence, or a deadly weapon.
Our standard of review when the sufficiency of the evidence is questioned on appeal 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, 99 S. Ct. 2781, 2789 (1979). This means that we may not reweigh the
evidence, but must presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).

        The conviction the defendant challenges, possession of a handgun by a felon, is defined as
possession of a handgun by a person convicted of a felony that involved the use or attempted use of
force, violence, or a deadly weapon. T.C.A. § 39-17-1307(b)(1)(A) (2003); State v. Black, 924
S.W.2d 912, 915 (Tenn. Crim. App. 1995). Tennessee courts recognize that possession may be
either actual or constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). Constructive
possession occurs when a person knowingly has “‘the power and the intention at a given time to
exercise dominion and control over an object, either directly or through others.’” State v. Williams,
623 S.W.2d 121, 125 (Tenn. Crim. App. 1981) (quoting United States v. Craig, 522 F.2d 29, 32 (6th
Cir. 1975)). Whether a defendant is in possession of one or more handguns found in the defendant’s
home is a question of fact for the jury to determine. State v. Warr, 604 S.W.2d 66, 68 (Tenn. Crim.
App. 1980).

       The evidence establishes that the appellant constructively possessed several handguns. Three
handguns were found in a closet and underneath a dresser in the defendant’s room. Detective
Simonik testified that the defendant’s mother asserted the room was the defendant’s. Mail and other
documents, including a rent notice from the defendant’s mother, addressed to or bearing the
defendant’s name were found in this room. No evidence suggests that anyone other than the
defendant and the defendant’s mother had access to the room. Detective Simonik stated the
defendant’s mother said the guns and money were not hers. We conclude that a rational trier of fact
could find that the three guns found in the defendant’s room at 2101 Porter Road were the
defendant’s guns.


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        After hearing the testimony of the court docket clerk, a rational trier of fact could also have
found beyond a reasonable doubt that the defendant had been convicted of a felony involving the use
or attempted use of force, violence, or a deadly weapon. The evidence is sufficient to convict the
defendant of possession of a handgun by a felon.

        In his claim of insufficient evidence for a conviction, the defendant also argues that no
evidence was presented at the trial showing the defendant possessed a handgun on the date alleged
in the indictment. In the forty-six count indictment against multiple defendants, count six against
the defendant stated that

                [the grand jurors] of Davidson County, Tennessee, duly impaneled
               and sworn, upon their oath, present that: Taft Arkey Murphy on the
               27th day of February, 2004, in Davidson County, Tennessee and
               before the finding of this indictment, and having been convicted of a
               felony involving the use of force, to wit: voluntary manslaughter,
               Case No. 96-B-945, on November 13, 1997, did knowingly or
               recklessly possess a handgun at 2101 Porter Road, in violation of
               T.C.A. §39-17-1307, and against the peace and dignity of the State of
               Tennessee.

         For trial, the counts against the defendant were renumbered to reflect six sequential counts
one through six. Possession of a handgun by a felon was renumbered as bifurcated count three. The
first stage of the proceeding used an indictment specifying the date “the 2th day of February, 2004,”
while the second stage’s charging document lists the date “the 27th day of February, 2004.”

         The defendant contends that the state has offered no proof showing the defendant possessed
a gun on the “2th day of February, 2004.” The defendant claims there is a fatal variance between
the date listed on the indictment and the proof at trial. The state counters that the discrepancy in the
dates is first a clerical error, which the defendant acknowledged in his brief. It also claims that the
discovery revealed the date in question to be February 27, 2004, such that the defendant knew before
trial of the charges against him and when they had allegedly occurred.

       A variance between information in the indictment and the evidence presented at trial is fatal
in Tennessee only if the variance is “material” and “prejudicial” to the defendant. State v. Moss,
662 S.W.2d 590, 592 (Tenn. 1984). “Material” means that an essential element of the charge is
lacking, such that the allegations and proof do not correspond substantially. See id. “Prejudicial”
means a substantial right has been affected: either the defendant was misled at trial and could not
prepare a defense or is exposed to a risk of double jeopardy. Id. As our supreme court stated, a
variance is not material or prejudicial when “the allegations and proof substantially correspond, the
variance is not of a character which could have misled the defendant at trial and is not such as to
deprive the accused of his right to be protected against another prosecution for the same offense.”
Id.



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        The time or date of the offense alleged does not need to be stated in the charging document
unless the time of the offense is an essential element of the offense. T.C.A. § 40-13-207. In
contrast, when the date is not an essential element of the offense, then the date is immaterial and can
be omitted from the indictment. State v. Shaw, 82 S.W. 480, 480 (Tenn. 1904); State v. West, 737
S.W.2d 790, 792 (Tenn. Crim. App. 1987). If the date is immaterial, then proof of the offense is not
limited to events occurring on the date listed on the indictment. West, 737 S.W.2d at 792 (quoting
Prince v. State, 529 S.W.2d 729, 733 (Tenn. Crim. App. 1975)).

       In the present case, the defendant has not met his burden to show the variance was material
and prejudicial. First, time is not an essential element of the offense of which he was convicted. See
T.C.A. § 39-17-1307. As time is immaterial to the offense, then the proof was not limited to the day
of February “2th,” as the defendant claims. The state showed that the defendant was in possession
of a weapon on February 27, 2004. To show the sufficiency of the charging instrument, the state
presented evidence that Detective Kajihara arrested the defendant on February 27, 2004, and took
him to 2101 Porter Road during the search that same day.

         Second, the defendant had notice of the charge and was able to prepare his defense. He was
not misled or surprised at trial when events centered on February 27, 2004, the date of his arrest and
the search of his home. The proof at trial and the date on the forty-six-count indictment match. The
renumbering of the indictment occurred before trial, and the defendant had knowledge of the longer
indictment and the date alleged for possession of a handgun by a felon. The defendant is not entitled
to relief regarding his claim of variance.


    II. CLAIM OF UNDUE PREJUDICE FROM TESTIMONY OF CONFIDENTIAL
                             INFORMANT

       The defendant contends that the confidential informant’s testimony improperly prejudiced
him. On cross-examination, defense counsel asked the confidential informant how the police knew
about the defendant. The witness testified:

               They didn’t know who he was when I had first brought him to them,
               but he had a murder charge. So, once they found out who he was and
               followed him a little bit, they knew about his murder charge. And,
               then, they knew who he was. They had no idea that he dealt drugs.

         After he mentioned the defendant’s “murder charge,” defense counsel did not object, move
to strike, request a limiting instruction, or move for a mistrial. Instead, counsel continued to ask how
the police knew the defendant. In the defendant’s motion for new trial, however, counsel claimed
the defendant was “unduly prejudiced” by Cruz’s mentioning of the defendant’s murder charge.

       The defendant contends that introduction of this testimony was improper under Tennessee
Rules of Evidence 609 and 404(b) and that this testimony must be attributed to the state, as the


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witness was testifying as a confidential informant for the state. The state counters: (1) the defendant
did not object to the testimony at trial and has waived the issue; and (2) neither Rule 609 nor 404(b)
apply.

        As noted, the defendant did not object to the witness’s statement or move to strike the
testimony. Thus, the defendant has waived this issue by not objecting contemporaneously. See
Tenn. R. Evid. 103(a)(1); State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000); see also T.R.A.P. 36(a)
(stating that a court is not required to grant relief to a party who did not take “reasonably available”
curative action).

       Based on the foregoing and the record as a whole, we affirm the judgments of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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