                                                                                             05/14/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2019

            STATE OF TENNESSEE v. JONATHAN ALEXANDER

                   Appeal from the Circuit Court for Hardin County
                    No. 17-CR-104     Charles C. McGinley, Judge
                       ___________________________________

                            No. W2018-00442-CCA-R3-CD
                        ___________________________________


A Hardin County jury convicted the defendant of two counts of unlawful possession of a
firearm (counts 1 and 2), possession of a Schedule II controlled substance with intent to
sell or deliver (count 3), possession of unlawful drug paraphernalia (count 4), and
possession of a firearm during the commission of a dangerous felony (count 5). On
appeal, the defendant challenges the sufficiency of the evidence supporting his
convictions in counts 3 and 5 and asserts the trial court erred in failing to instruct the jury
on the inference of casual exchange pursuant to Tennessee Code Annotated section 39-
17-419. Upon our review of the record, we conclude sufficient evidence exists to support
the defendant’s convictions and the defendant failed to preserve the jury instruction issue
for appeal. In reviewing the sentencing determinations of the trial court, however, we
note several errors in the completion of the judgment forms for counts 1, 2, 3, and 4.
Specifically, there are clerical errors in the felony classifications as marked in counts 1, 2,
and 3 (in count 1, the trial court incorrectly classified the conviction as a Class C felony
rather than a Class B felony; in count 2, the trial court incorrectly classified the
conviction as a Class E felony rather than a Class C felony; and in count 3, the trial court
incorrectly classified the conviction as a Class C felony rather than a Class B felony).
Additionally, in merging the defendant’s convictions in counts 1 and 2, the trial court
failed to impose a sentence for the merged conviction of count 2. Finally, in count 4, the
trial court incorrectly sentenced the defendant for a misdemeanor conviction rather than
the felony for which he was found guilty, warranting a new sentencing hearing on the
same. Consequently, we remand the case to the trial court for sentencing as to counts 2
and 4 and the entry of corrected and completed judgment forms as to counts 1, 2, 3, and
4.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
                                 Case Remanded
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and CAMILLE R. MCMULLEN, J., joined.

Terry Lee Dicus, Jr., Savannah, Tennessee, for the appellant, Jonathan Alexander.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Vance Dennis,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                               Facts and Procedural History

       This case arises from the arrest of the defendant during a multi-agency saturation
operation performed throughout Hardin County. As part of the operation, officers
executed an outstanding arrest warrant against the defendant on April 28, 2017.
Subsequent to his arrest, the defendant was indicted for two counts of unlawful
possession of a firearm, one count of possession of a Schedule II controlled substance
with intent to sell or deliver, one count of possession of unlawful drug paraphernalia, and
one count of possession of a firearm during the commission of a dangerous felony. Tenn.
Code Ann. §§ 39-17-417; -425; -1307; -1324. Prior to trial, the parties entered an agreed
stipulation stating the defendant is a convicted felon “for the sole purpose of determining
an element of unlawful possession of a firearm.” The State presented the following
evidence at trial.

        Drug task force officer Jason Caldwell of the Hardin County Sheriff’s Department
participated in the arrest of the defendant on April 28, 2017. Pursuant to his probation
officer, the defendant lived with his parents in Hardin County, Tennessee at the time of
arrest. As Officer Caldwell approached the home, he saw the defendant and another male
in the living room just inside the front door. Officer Caldwell secured the defendant, a
female, and two other males on the front porch, noting at trial he did not know the names
of the three other individuals.

       After securing the scene, Officer Caldwell Mirandized the defendant and
conducted a consensual search of the “front portion” of the home where it appeared the
defendant lived.1 During the search, Officer Caldwell saw “male clothing, as well as a
pair of boots” and a firearm next to the couch in the living room where the defendant was
prior to his arrest. Officer Caldwell also found a “Red Bull can with the powder

       1
       See Miranda v. Arizona, 384 U.S. 436 (1966).

                                              -2-
substance on top of it” on a table six to eight inches from the couch. Both the firearm and
the Red Bull can were within five to seven feet from where the defendant stood prior to
his arrest. Officer Caldwell explained the lid of the Red Bull can was cut and bent to
form a “bowl” to hold the white powder, which was later identified as morphine.
According to Officer Caldwell, “individuals who intravenously inject any kind of illicit
drugs or prescription drugs, they’ll take a spoon, or in this instance, there could be a can.
They’ll put their substance in it, put a little bit of water to it, and heat it up to inject it in
the body.” Officer Caldwell also found what appeared to be “a couple of marijuana
roaches” during the search. Regarding the firearm, Officer Caldwell learned it belonged
to the defendant’s father. However, at the time of the defendant’s arrest, the firearm was
loaded with one round and found next to the couch where the defendant slept. Officer
Caldwell stated he did not request DNA or fingerprint analysis for the evidence seized
during the search, explaining it was unnecessary to do so based upon his training and
experience and the “circumstances that surrounded the incident.” All of the items found
during the search were entered into evidence.

        During cross examination, Officer Caldwell stated only the defendant was charged
with crimes subsequent to the search of his parents’ home. Officer Caldwell did not
inquire if the defendant had a prescription for morphine, but noted “I was never advised
he had a script and for it to be crushed down and done like it was, that’s what I’m basing
all my evidence off of.” Officer Caldwell explained he has “arrested individuals and
made cases where they have purchased liquid in a syringe from an individual that’s
melted narcotics down,” but noted he did not find a syringe during the search. However,
based upon his experience and training, Officer Caldwell believed the defendant “was
going to distribute the morphine to the other three individuals that was (sic) there at the
house with him” and stated “[t]hrough my training and experience, there was a significant
amount of morphine that is crushed up in that [0].5 grams of white powdered substance
there.”

        Rachel Strandquist, a special agent forensic scientist with the Drug Chemistry Unit
of the Tennessee Bureau of Investigation (“TBI”), analyzed the powdery substance found
on the Red Bull can and filed a report regarding the same. Special Agent Strandquist
used a gas chromatograph mass spectrometer and an ionization detector instrument to test
the substance and explained her findings, as follows: “I was submitted a metal can that
had a white chunky powder on the bottom. This I tested, and I identified morphine. It
was [0].5 grams was the amount that I scraped off of the can.” The State entered a copy
of her report into evidence. Upon reviewing the report, Special Agent Strandquist noted
“there [was] charring on the inside of the can” and opined “it does appear that someone
was trying to smoke it.” Regarding how the defendant was likely using the morphine
prior to arrest, she further stated: “I can’t say for certain. To me, it appears as though it’s
for personal use, but I cannot say what was happening at that time.”
                                              -3-
        Special Agent Brent Booth of the TBI also participated in the defendant’s arrest on
April 28, 2017. When Special Agent Booth entered the home, Officer Caldwell already
had the defendant in custody in the living room where Special Agent Booth saw a firearm
against the wall next to the couch. Special Agent Booth helped place the defendant in the
patrol car to be transported to jail. During cross-examination, Special Agent Booth stated
in his experience with drug investigations he has seen morphine pills sold “in wholes and
halves, if they’re scored” and has encountered drugs that have been sold after being
crushed and heated. Special Agent Booth testified the way the morphine was found in
the Red Bull can indicated drug use.

        At the close of the State’s proof, the defendant moved for a judgment of acquittal,
which was denied by the trial court. The defendant then presented evidence from his
mother, Martha Alexander. Ms. Alexander testified that during April 2017, the defendant
“would stay a few days with” her and her husband and sometimes slept on the couch in
the living room. At the time of the defendant’s arrest, Ms. Alexander was not home and
did not know drugs were in her home. She identified the firearm previously marked into
evidence as her husband’s, which he had owned for approximately 30 years, and stated
she did not know where her husband usually stored the gun. Ms. Alexander did not know
the defendant could not have a firearm despite him being a convicted felon. The
defendant waived his right to testify, closed his proof, and the jury convicted him as
charged on all counts.

       At a subsequent sentencing hearing, the trial court merged the defendant’s
conviction in count 2 into count 1 and imposed a fifteen-year sentence. The trial court
sentenced the defendant to fifteen years in count 3 and eleven months and twenty-nine
days in count 4 and ran counts 1, 3, and 4 concurrently to one another. The trial court
imposed a consecutive sentence of five years in count 5.2 The defendant filed a motion
for new trial and testified at a hearing on the same. The trial court, however, denied the
motion. This timely appeal followed.

                                         Analysis

       On appeal, the defendant challenges the sufficiency of the evidence supporting his
convictions for possession of a Schedule II controlled substance with intent to sell or
deliver (count 3) and possession of a firearm during the commission of a dangerous
felony (count 5). The defendant also argues the trial court erred in failing to instruct the


       2
        Pursuant to the judgment forms entered, the sentences in counts 1, 3, and 4 were run
concurrently to the defendant’s pending sentences in case numbers “CR 10,058 and 16-CR-41.”
                                           -4-
jury on the inference of casual exchange. After reviewing the record, we disagree with
the defendant and will address each issue in turn.

  I.   Sufficiency of the Evidence

        When the sufficiency of the 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
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
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.”); 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). 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). Our Supreme Court has stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “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.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘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)). The jury as the trier of
                                             -5-
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

          a. Possession of a Schedule II Controlled Substance with the Intent to Sell or
             Deliver

        In attacking the sufficiency of the evidence as to his conviction for possession of a
Schedule II controlled substance with the intent to sell or deliver, the defendant alleges
the evidence at trial “prove[d] nothing more than casual exchange, if, casual exchange
exists,” and argues “[t]wo out of three government witnesses admitted” the Red Bull can
containing 0.5 grams of morphine “was more indicative of using morphine compared to
intending on delivering morphine.” The State contends sufficient evidence exists to
support the conviction as “the police found [the defendant] inside his own residence
within mere feet of 0.5 grams of morphine on a Red Bull can being used as a cooking
apparatus.” We agree with the State.

       Tennessee Code Annotated section 39-17-417 makes it a Class C felony to
knowingly possess a Schedule II controlled substance with the intent to sell or deliver the
controlled substance. Tenn. Code Ann. § 39-17-417. One 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.” Tenn. Code Ann. § 39-11-
302(b). Morphine is a Schedule II controlled substance. Tenn. Code Ann. § 39-17-
408(b)(1)(I). “‘Deliver’ or ‘delivery’ means the actual, constructive, or attempted
transfer from one person to another of a controlled substance, whether or not there is an
agency relationship.” Tenn. Code Ann. § 39-17-402(6). In this context, “[i]t may 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.” Tenn. Code Ann. § 39-17-419; State v. Holt, 691 S.W.2d 520, 522 (Tenn.
1984).

       Here, the evidence showed Officer Caldwell and Special Agent Booth executed an
outstanding arrest warrant on the defendant on April 28, 2017. At the time, the defendant
                                            -6-
lived at his parents’ home where he sometimes slept on the couch in the living room.
During a consensual search of the living room after the defendant’s arrest, Officer
Caldwell found a loaded rifle and a Red Bull can containing a white powdery substance.
Three other individuals were also in the home. Special Agent Strandquist tested the
white powdery substance and identified it as 0.5 grams of morphine. Both the rifle and
Red Bull can containing 0.5 grams of morphine were found near the couch in the living
room within five to seven feet from where Officer Caldwell saw the defendant prior to
his arrest. According to Officer Caldwell, the Red Bull can was cut to form a bowl in
order to heat the morphine and inject the drugs intravenously. He believed “there was a
significant amount of morphine” in the Red Bull can and opined the defendant “was
going to distribute the morphine” to the three individuals who were in the home prior to
the arrest. Both Special Agent Strandquist and Special Agent Booth testified the state in
which the officers found the morphine on the Red Bull can indicated drug use. While the
evidence against the defendant was mostly circumstantial, our supreme court allows the
jury to determine “the extent to which the circumstances are consistent with guilt and
inconsistent with innocence.” See Dorantes, 331 S.W.3d at 379 (citing Rice, 184 S.W.3d
at 662). Accordingly, when viewed in a light most favorable to the State, sufficient
evidence exists to show the defendant possessed morphine with the intent to sell and/or
deliver.

       In support of his insufficiency argument, the defendant relies on an alleged
discrepancy in the testimonies of the State’s witnesses wherein, despite the above
outlined evidence, the defendant asserts Special Agents Booth and Strandquist admitted
the morphine was for personal use. We, however, find this argument misplaced as the
agents’ statements do not overcome the circumstantial evidence produced by the State in
support of this conviction which indicated the defendant planned to distribute the
morphine to the three individuals in the home with him prior to his arrest. Id.
Furthermore, any inconsistencies in the agents’ testimonies alleged by the defendant were
resolved by the jury in reaching their verdict. This Court will not reweigh the evidence.
See id. Accordingly, sufficient evidence exists to show the defendant possessed
morphine with the intent to sell and/or deliver and the defendant is not entitled to relief.

          b. Possession of a Firearm during the Commission of a Dangerous Felony

       In conjunction with his previous argument, the defendant contends the evidence is
insufficient to support his conviction for possession of a firearm during the commission
of a dangerous felony. We, again, disagree. “It is an offense to possess a firearm with
the intent to go armed during the commission of or attempt to commit a dangerous
felony.” Tenn. Code Ann. § 39-17-1324(a). One such “dangerous felony” is possession
with the intent to sell or distribute a controlled substance. Tenn. Code Ann. § 39-17-
1324(i)(1)(L).
                                           -7-
       The evidence at trial showed a loaded rifle sat within feet of the defendant prior to
his arrest. While the subsequent investigation revealed the rifle belonged to the
defendant’s father, nothing in the record disputes the jury’s finding that the defendant
possessed the gun as he prepared to distribute morphine to the three individuals in his
home. State v. James Thomas, Jr., No. M2014-00972-CCA-R3-CD, 2015 WL 4484888,
at *4 (Tenn. Crim. App. July 23, 2015) (internal quotations omitted) (noting
“[c]onstructive possession requires that a defendant have the power and intention . . . to
exercise dominion and control over the given item allegedly possessed”); see also
Dorantes, 331 S.W.3d at 379. Accordingly, not only is the evidence sufficient to support
the defendant’s conviction for possession of morphine with the intent to sell and/or
deliver, but it is also sufficient to support his conviction for possession of a firearm
during the commission of a dangerous felony. The defendant is not entitled to relief.

 II.   Jury Instructions

       The defendant argues the trial court erred in failing to instruct the jury on the
inference of casual exchange. The defendant admits he failed to request a jury instruction
on the casual exchange inference in writing and requests plain error review of the same.
The State asserts the defendant cannot establish plain error as to this issue. Upon our
review of the record, however, we conclude the issue is waived and plain error review is
not warranted.

       First, we note the defendant waived this issue for failing to request a jury
instruction on the inference of casual exchange in writing and he failed to object to the
exclusion of the jury instruction at trial. Tenn. R. App. P. 36(a); State v. Page, 184
S.W.3d 223, 230 (Tenn. 2006) (citing State v. Cravens, 764 S.W.2d 754, 757 (Tenn.
1989)). Though the defendant admits he failed to preserve the issue for appeal, he
nonetheless asserts the issue warrants plain error review because he objected to “the
oversight” in failing to request the instruction “as the jury was retiring to deliberate.”
The record, however, does not demonstrate the same. Rather, the record shows the trial
court provided the jury with a portion of the casual exchange inference in defining the
crime of possession with the intent to sell or deliver (count 3) at the outset of the trial.
Specifically, the trial court stated:

               I[t] may be inferred from the amount of controlled substances
       possessed by an offender, along with other relevant factors surrounding the
       arrest, that the controlled substance or substances were possessed with the
       purpose of selling or otherwise dispensing them.



                                           -8-
This language mirrors that of Tennessee Code Annotated section 39-17-419. Though the
trial court omitted the remainder of the casual exchange inference statute, it provided the
general inference to the jury at the outset of trial. Furthermore, we note, casual exchange
is not a lesser-included offense of possession with intent to deliver. State v. Timothy
Wayne Grimes, No. M2001-01460-CCA-R3-CD, 2002 WL 31373472, at *6 (Tenn. Crim.
App. Oct. 16, 2002); see also State v. Nelson, 275 S.W.3d 851, 865 (Tenn. Crim. App.
2008) (citing State v. Bledsoe, 226 S.W.3d 349, 354 (Tenn. 2007) (declining to conduct
plain error review of the trial court’s failure to instruct the jury on the inference of casual
exchange because it is not a lesser-included offense of possession with intent to sell and
because the defendant failed to request the instruction at trial or in his motion for new
trial). For these reasons, the issue is waived and the defendant is not entitled to plain
error review.

                                         Conclusion

        Based upon the foregoing authorities and reasoning, we affirm the judgments of
the trial court. However, because of the clerical and sentencing errors detailed above, we
remand the case to the trial court for a new sentencing hearing and the correction of the
judgment forms consistent with this opinion.



                                               ____________________________________
                                               J. ROSS DYER, JUDGE




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