        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                Assigned on Briefs December 15, 2015 at Knoxville

                STATE OF TENNESSEE v. ROBERT SPENCER

                 Appeal from the Criminal Court for Shelby County
                       No. 11-03349   Glenn Wright, Judge


              No. W2014-02454-CCA-R3-CD – Filed January 27, 2016


Following a jury trial, the Defendant, Robert Spencer, was convicted of one count of
possession with intent to sell twenty-six grams or more of a substance containing cocaine
and one count of possession with intent to deliver twenty-six grams or more of a
substance containing cocaine, both Class B felonies. See Tenn. Code Ann. § 39-17-
417(a)(4), (c)(1), (i)(5). The trial court imposed a total effective sentence of fourteen
years. In this appeal as of right, the Defendant contends (1) that the evidence was
insufficient to sustain his convictions; (2) that the trial court erred by allowing an
investigator to testify about statements made by a “cooperating source”; and (3) that the
trial court erred by failing to merge his convictions. Following our review, we affirm the
Defendant‟s convictions. However, we merge the Defendant‟s convictions and remand
the case to the trial court for entry of corrected judgment forms reflecting said merger.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
            in Part; Case Remanded for Entry of Corrected Judgment

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROGER A. PAGE, JJ., joined.

Stephen C. Bush, District Public Defender; and Phyllis L. Aluko (on appeal) and Michael
J. Johnson (at trial), Assistant District Public Defenders, for the appellant, Robert
Spencer.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Marianne Lea Bell, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                              FACTUAL BACKGROUND
       Special Agent Greg Flint of the West Tennessee Drug Task Force (DTF) testified
that on March 10, 2011, he began an investigation of a house on Olympic Street in
Memphis. Agent Flint testified that he had investigated over 1,000 narcotics cases and
that he would often use “cooperating” individuals to identify drug traffickers. Agent
Flint began his investigation of the house on Olympic Street after he “had received
information from a cooperating source.” Agent Flint testified that the source provided
him with a description of a house on Olympic Street, the name and description of an
individual, a phone number, and “information about activity at the house.” Over the
Defendant‟s objection, Agent Flint testified that the house in question matched the
source‟s description.

       On March 10, 2011, Agent Flint “conducted surveillance” on the house for
approximately thirty minutes. During that time, Agent Flint observed “a very large
amount of foot traffic” going to and from the house. Agent Flint explained that he saw
approximately fifteen individuals each walk up to the house, go inside for “two minutes
or less,” and then leave. Agent Flint testified that in his experience, a “large amount of
foot traffic” to a house was “indicative . . . that [those] individuals . . . [were] going to
that house to purchase narcotics.” Agent Flint testified that he watched the house again
on March 11, 2011, for twenty to thirty minutes and “observed a similar pattern of traffic
in and out” of the house.

       Agent Flint obtained a search warrant for the house on Olympic Street, and he and
a team of other DTF agents executed the warrant on March 15, 2011. The DTF agents
waited until they “observed an individual” walk up to the front porch of the home. At
that point, they detained the individual and pounded on the door, announcing that they
were there to execute a search warrant. After receiving no answer, the agents opened the
unlocked door and entered the house. Upon entry into the house, the agents observed “a
very large projection-style television . . . facing the door” and “projecting a live video
feed” of the front porch. A surveillance camera was found “mounted to the front porch.”
Agent Flint testified that it was not uncommon to find surveillance systems at “[d]rug
houses.”

       The Defendant was found in the rear bedroom of the house. Over the Defendant‟s
objection, Agent Flint testified that the Defendant matched the description of the
individual provided by his cooperating source. No one else was found inside the house.
A search of the Defendant‟s person revealed $651 in cash and a cellular telephone with
the name “P.A. Ralph” programmed into it. Agent Flint testified that only the front room
and one of the bedrooms in the house were furnished. Agent Flint opined that it did not
appear that “more than one person was living in the house.” Agent Flint admitted on
cross-examination that the owner of the home was named Carl Stotts and that the


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Defendant‟s driver‟s license listed a different address as his residence. Agent Flint
testified that Mr. Stotts was not present at the house when it was searched.

       In the front room of the house, agents found “a box of clear plastic sandwich
bags.” Agent Flint explained that those types of bags are “often used to package
narcotics” for sale. Agents then found “a small opening in the ceiling that was covered
with a piece of plywood.” Inside the attic, agents found two “large” rocks of what
appeared to be crack cocaine hidden in the insulation; a plastic bag containing a third
“large” rock and “a glass beaker with a white powdery residue”; and a cloth bag
containing a set of digital scales “with white powder residue” and a bag of white powder,
which appeared to be cocaine.

        Agent Flint explained that the glass beaker was what is commonly called a
“rocking tube” and was likely used “to turn powder cocaine into crack cocaine.” Agent
Flint also testified that, in his experience, digital scales are often used to weigh drugs for
sale. Subsequent forensic analysis by the Tennessee Bureau of Investigation confirmed
that the three rocks and the powder were cocaine. The three rocks weighed, in total,
49.16 grams, and the powder weighed 14.03 grams. Agent Flint opined that the
Defendant possessed the cocaine with the intention of selling it rather than personally
using it given the “large quantity, the digital scale, [and] the glass beaker.” Agent Flint
also noted that they did not find “any sort of smoking devices such as a crack pipe”
during the search of the house.

        Melinda Hilliard, an employee with Memphis Light, Gas and Water (MLGW),
testified regarding a “residential service agreement” for the house on Olympic Street.
Ms. Hilliard testified that utility services were requested for the home on March 2, 2011.
The service agreement listed “E.H. Stotts” as the landlord for the home, and the applicant
was listed as “Steven Carnes.” The form also contained “a nearest relative box.” Inside
that box an “R” was written and crossed out. The name provided for the “nearest
relative” was “Percy Spencer.” Ms. Hilliard further testified about the phone number
given by the applicant on the service agreement. Agent Flint testified that the phone
number provided for “Steven Carnes” on the MLGW service agreement matched the
number of the cellular telephone found on the Defendant‟s person.

       Based upon the foregoing, the jury convicted the Defendant of one count of
possession with intent to sell twenty-six grams or more of cocaine and one count of
possession with intent to deliver twenty-six grams or more of cocaine. The trial court
imposed concurrent fourteen-year sentences for each conviction, for a total effective
sentence of fourteen years. This timely appeal followed.

                                        ANALYSIS

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                               I. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his
convictions. The Defendant argues that the State failed to establish that he had
possession of the cocaine found in the house because it was not found “on [his] person”
but was found in the attic, which the Defendant alleges was not easily accessible. The
Defendant further argues that the State failed to present sufficient evidence to link him
with the house on Olympic Street. The State responds that the evidence was sufficient to
sustain the Defendant‟s convictions.

       An appellate court‟s standard of review when the defendant questions the
sufficiency of the evidence 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 (1979). This court does not reweigh the evidence, rather, it presumes 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). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‟s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State‟s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Our supreme
court has held that circumstantial evidence is as probative as direct evidence. State v.
Dorantes, 331 S.W.3d 370, 379-81 (Tenn. 2011). In doing so, the supreme court rejected
the previous standard which “required the State to prove facts and circumstances so
strong and cogent as to exclude every other reasonable hypothesis save the guilt of the
defendant, and that beyond a reasonable doubt.” Id. at 380 (quoting State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971)) (internal quotation marks omitted).

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        Instead, “direct and circumstantial evidence should be treated the same when
weighing the sufficiency of such evidence.” Dorantes, 331 S.W.3d at 381. The reason
for this is because with both direct and circumstantial evidence, “a jury is asked to weigh
the chances that the evidence correctly points to guilt against the possibility of inaccuracy
or ambiguous inference.” Id. at 380 (quoting Holland v. United States, 348 U.S. 121, 140
(1954)). To that end, the duty of this court “on appeal of a conviction is not to
contemplate all plausible inferences in the [d]efendant‟s favor, but to draw all reasonable
inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67
(Tenn. 2011).

       It is an offense for a defendant to knowingly possess cocaine with the intent to sell
or deliver. Tenn. Code Ann. § 39-17-417(a). “Possession may be actual or
constructive.” State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013). Simply being in an
area where drugs are found “is not sufficient, standing alone, to find constructive
possession.” Id. Instead, the proof must show that the defendant had “the power and
intention at a given time to exercise dominion and control over . . . [the drugs] either
directly or through others.” Id. (alterations in original) (quoting State v. Shaw, 37
S.W.3d 900, 903 (Tenn. 2001)) (internal quotation marks omitted). “Constructive
possession depends on the totality of the circumstances in each case” and “may be proven
by circumstantial evidence.” Id.

        Here, there was sufficient circumstantial evidence to establish that the Defendant
had constructive possession of the cocaine found in the attic. Agent Flint testified that he
observed the house on two separate days and saw “a very large amount of foot traffic”
going to and from the house on both days. Agent Flint explained that, in his experience,
a “large amount of foot traffic” to a house was “indicative . . . that [those] individuals . . .
[were] going to that house to purchase narcotics.” Inside the house, agents found a
surveillance system which Agent Flint testified was also indicative that the house was a
“[d]rug house.” Additionally, only two rooms in the house were furnished, and Agent
Flint testified that it appeared only one person lived there.

       The Defendant was the only person found inside the house. He was alone in the
rear bedroom when the agents searched the house. The Defendant had a large amount of
cash and a cellular telephone on him when he was searched. The number for the cellular
telephone was the same number listed on the service agreement with MGLW. Agents
also found “a box of clear plastic sandwich bags” in the front room of the house. Agent
Flint explained that those types of bags are “often used to package narcotics” for sale.
Based upon the foregoing, we conclude that the evidence was sufficient to establish that
the Defendant had constructive possession of the cocaine found in the attic and that he
possessed it with the intent to sell or deliver it.

                                   II. Hearsay Statements
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       The Defendant contends that the trial court erred by allowing Agent Flint to testify
about statements made by the “cooperating source.” Specifically, the Defendant argues
that the trial court erred by allowing Agent Flint to testify that the house on Olympic
Street and the Defendant matched the descriptions provided by his source. The
Defendant further argues that the error was not harmless because those statements were
the only evidence establishing the Defendant “as a resident of [the] house [that was]
searched.” The State responds that the testimony in question was not hearsay because
Agent Flint did not testify regarding any statements. The State argues that Agent Flint‟s
testimony provided his own “personal observations” rather than the source‟s hearsay
statements.

        Hearsay is defined as “a statement other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Hearsay is not admissible except as allowed by the
rules of evidence or other applicable law. Tenn. R. Evid. 802. The questions of whether
a statement is hearsay or fits under one of the exceptions to the hearsay rule are questions
of law and subject to de novo review by this court. Kendrick v. State, 454 S.W.3d 450,
479 (Tenn. 2015).

      The State asserts that Agent Flint‟s testimony was not hearsay; rather, it was
simply a statement of his personal observations. However, Agent Flint‟s testimony was a
form of indirect hearsay. As explained by one treatise, indirect hearsay can occur when:

       [W]itnesses . . . are tempted by lawyers to get in hearsay through the back
       door.

              Q: After talking to the informant – and don‟t tell the jury what the
              informant told you – what did you do?

              A: I went to the luggage room, found the red suitcase with the
              defendant‟s name on it, and found cocaine inside.

       Most jurors will get the message intended from this indirect hearsay. They
       will have learned what the informant said, even though no words from the
       informant were actually repeated.       The testimony is hearsay and
       inadmissible . . . .

Neil P. Cohen et al., Tennessee Law of Evidence, § 8.01[11][b] (6th ed. 2011).

        Here, Agent Flint‟s testimony was able to relay what the “cooperating source” had
told him about the house on Olympic Street and the Defendant in an indirect way. Agent
Flint‟s testimony that the house and the Defendant matched the descriptions provided by
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the source coupled with his testimony about his background in narcotics investigations
allowed the jury to learn what the source told Agent Flint, that the Defendant was selling
cocaine from the house on Olympic Street. See Clarke v. State, 976 So. 2d 1184, 1185
(Fla. Dist. Ct. App. 2008) (holding that police officer‟s testimony that a witness‟
statements were consistent with the victim‟s statements was impermissible hearsay);
Wilding v. State, 674 So. 2d 114, 118 (Fla. 1996) (holding that testimony that detective
“received an anonymous tip” which named the defendant was impermissible hearsay).
As such, Agent Flint‟s testimony relayed the hearsay statements of the source.

        This court has previously held that “a police officer‟s testifying to an out of court
statement to explain his actions” is not hearsay but cautioned that “in most situations the
details of information obtained through a confidential informant should not be admitted at
trial.” State v. Brown, 915 S.W.2d 3, 6 (Tenn. Crim. App. 1995). Instead, “testimony
that [the officer] acted „upon information received,‟ or words to that effect, should be
sufficient” to explain the officer‟s actions. Id. (quoting McCormick On Evidence § 249,
at 104 (4th ed. 1992)). Here, Agent Flint sufficiently explained that he was investigating
the Olympic Street house based on information provided by the “cooperating source,”
and there was no need for Agent Flint to provide further details about the source‟s
description of the house or the Defendant. Accordingly, we conclude that the trial court
erred by admitting Agent Flint‟s testimony that the house and Defendant matched the
descriptions provided by the source.

        However, this does not end our analysis. Failure to exclude inadmissible hearsay
evidence is subject to harmless error analysis. See State v. Long, 45 S.W.3d 611, 624
(Tenn. Crim. App. 2000). “A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a
substantial right more probably than not affected the judgment or would result in
prejudice to the judicial process.” Tenn. R. App. P. 36(b). Contrary to the Defendant‟s
argument, there was strong circumstantial evidence that he had constructive possession
over the cocaine found in the attic of the Olympic Street house and that he intended to
sell or deliver the cocaine. Accordingly, we conclude that the error was harmless.

                                III. Merger of Convictions

       The Defendant contends that the trial court erred by failing to merge his
convictions. The Defendant argues that he committed a single offense which the state
chose to prosecute under two alternate theories and that his dual convictions violate his
constitutional protections against double jeopardy. The State concedes that the trial
court‟s failure to merge the convictions was error.

       Double jeopardy bars convictions for possession with intent to sell and possession
with intent to deliver when the convictions are supported by the same proof. State v.
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Johnson, 765 S.W.2d 780, 782 (Tenn. Crim. App. 1988). The trial court‟s failure to
merge the convictions constituted plain error. See State v. Edgar Allgood, No. W2008-
00870-CCA-R3-CD, 2010 WL 455000, at *8 (Tenn. Crim. App. Feb. 10, 2010).
Accordingly, we merge the Defendant‟s conviction for possession with intent to deliver
twenty-six grams or more of cocaine into his conviction for possession with intent to sell
twenty-six grams or more of cocaine and remand the case to the trial court for entry of
corrected judgments forms reflecting the merger.

                                    CONCLUSION

       Upon consideration of the foregoing and the record as a whole, we affirm the trial
court‟s judgments as to the Defendant‟s convictions. However, the trial court‟s failure to
merge the convictions constituted plain error. The case is remanded to the trial court for
entry of corrected judgment forms reflecting the merger of the convictions.



                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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