         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 7, 2003

  STATE OF TENNESSEE v. THELISA EMERY and MAURICE EMERY

                   Appeal from the Humboldt Law Court for Gibson County
                      Nos. H6980 & H6981     Clayburn Peeples, Judge



                Nos. W2002-02698-CCA-R3-CD & W2003-03355-CCA-R3-CD
                                  Filed March 15, 2004


The defendants, Thelisa Emery and Maurice Emery, sister and brother, were each convicted in a joint
jury trial of possession with intent to sell .5 grams or more of cocaine, possession of marijuana, and
possession of drug paraphernalia. On appeal, Thelisa Emery claims that the convicting evidence is
insufficient and that the trial court erred in not severing the defendants’ trials, in allowing testimony
about Thelisa Emery’s use of cocaine, in allowing evidence of her prior sale of cocaine, and in
instructing the jury as to her guilt via criminal responsibility for the acts of Maurice Emery. Maurice
Emery raised some of the same issues, but because he failed to file a timely motion for new trial,
appellate review of his convictions is limited to the sufficiency of the convicting evidence.
Discerning no reversible error with respect to either defendant, we affirm the judgments of the trial
court.

          Tenn. R. App. P. 3; Judgments of the Humboldt Law Court are Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

Kyle Atkins, Humboldt, Tennessee, for the Appellant, Thelisa Emery; and Shannon Jones, Alamo,
Tennessee, for Appellant, Maurice Emery.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Edward L. Hardister, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

               Law enforcement officers testified that on December 15, 2000, they went to Thelisa
Emery’s mobile home residence in Humboldt to execute a search warrant. When the officers arrived,
they saw three persons outside the mobile home, and upon seeing the officers, one of the persons,
Andrea Huspen, ran; the others went inside the mobile home. One officer pursued and apprehended
Huspen, on whose person the officer found cocaine and cash made up mostly of five-, ten- and
twenty-dollar bills. The officers who entered the mobile home found the defendants and William
King in the front room and pursued Clifford Woodruff, a juvenile, into the back bedroom. The
officers found a bag of marijuana on Woodruff and two “crack pipes” on King. They found no drugs
or money on Thelisa Emery or Maurice Emery, the latter of whom was wearing only a pair of shorts.

                Upon searching the mobile home pursuant to the search warrant, the officers found
3.0 grams of cocaine and 1.2 grams of marijuana stuffed into a decorative wall fixture hanging in
the back bedroom. In the bedroom, they also found a Swisher Sweet Blunts cigar box which
contained marijuana residue, rolling papers, and a cigar wrapper.1 In a kitchen cabinet, the officers
found a utility knife with cocaine residue, a crack pipe, rolling papers, and a compact mirror with
cocaine residue.

                Maurice Emery stated that he had been hunting earlier in the day. After questioning
by the police, he went to the back bedroom to retrieve and don a pair of jeans. Although Thelisa
Emery’s son occupied this bedroom, it contained, in addition to Maurice Emery’s jeans, hunting
clothes, boots, and shotgun shells.

               Thelisa Emery admitted to the officers that she resided in the mobile home and stated
that Maurice Emery did not reside there but stayed there occasionally. Over the objection of Thelisa
Emery, an officer testified that, during the search, Thelisa Emery told him that she had used cocaine.

               Clifford Woodruff testified that he arrived at the Emery residence about an hour
before the police arrived. After he had been there about thirty minutes, Brandon Hunt came to the
mobile home and purchased a rock of crack cocaine from the defendants. Woodruff testified that
Maurice Emery took the rock from his pocket and gave it to Thelisa Emery, who gave it to Hunt.
Hunt then handed cash to Thelisa Emery, who handed it to Maurice Emery. Woodruff denied that
he placed drugs in the bedroom wall fixture.

                On cross-examination, Woodruff admitted that on December 15, 2000, he told the
officers that he had never seen drugs sold in the Emery residence. He further admitted that he
changed his story to the current version on the day he appeared in juvenile court on his possession
charge. In exchange for his agreement to testify against the defendants, the juvenile court possession
charge was dismissed.

               The defendants did not testify. Based upon the foregoing evidence, the jury convicted
the defendants of possession of .5 grams or more of cocaine with intent to sell, possession of
marijuana, and possession of drug paraphernalia. The trial court sentenced Maurice Emery, as a
multiple offender, to an effective sentence of twelve years in the Department of Correction, and it



        1
         One officer testified that a common practice among marijuana users was to remove the tobacco from Swisher
Sweet Blunts and refill the cigar wrapper with marijuana.

                                                       -2-
sentenced Thelisa Emery, as a standard offender, to an effective sentence of ten years in the
Department of Correction.

               Before we address the substantive issues raised on appeal, we must address the
untimely motion for new trial filed by Maurice Emery. The trial court entered the judgments of
conviction on March 25, 2002. On December 30, 2002, the trial court entered an order that vacated
and reentered the judgments, and on that same day, Maurice Emery filed a motion for new trial.

                 It is beyond question that motions for new trial must be filed within 30 days of the
entry of the judgment of conviction, Tenn. R. Crim. P. 33(b); Massey v. State, 592 S.W.2d 333, 334
(Tenn. Crim. App. 1979), and this time period is not subject to extension, Tenn. R. Crim. P. 45(b);
State v. Martin, 940 S.W.2d 567, 569 (Tenn. 1997). When thirty days elapsed following the entry
of the judgments on March 25, 2002, the trial court lost jurisdiction to vacate the convictions. See
Martin, 940 S.W.2d at 569.2 In short, the December 30, 2002 motion for new trial was untimely,
and Maurice Emery’s issues, except for the claim of insufficiency of the evidence, may not be
reviewed on appeal. Tenn. R. App. P. 3(e) (in jury case, “no issue presented for review shall be
predicated upon error . . . on [] ground[s] on which a new trial is sought, unless the same was
specifically stated in a motion for a new trial; otherwise such issues will be treated as waived”); State
v. Johnny Owens, No. W2001-01397-CCA-R3-CD, slip op. at 10 (Tenn. Crim. App., Jackson, Nov.
8, 2002) (failure to file timely motion for new trial does not precluded appellate review of issue of
sufficiency of the evidence), perm. app. denied (Tenn. 2003). Accordingly, our review of the
sufficiency of the evidence will relate to both defendants, but the discussion of the remaining issues
on appeal will relate only to Thelisa Emery.

                 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.” See
Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This
means that we do not re-weigh the evidence but presume that the factfinder 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). Because a verdict of guilt against a defendant removes the presumption of innocence and
raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the
evidence was legally insufficient to sustain a guilty verdict. State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982).

                It is an offense for a defendant to knowingly possess a controlled substance with
intent to sell the controlled substance. Tenn. Code Ann. § 39-17-417(a) (2003). With certain
exceptions not presently applicable, “It is unlawful for any person to use, or to possess with intent


         2
           Because M aurice Emery’s motion for new trial was untimely, his February 7, 2003 notice of appeal was also
untimely, see Tenn. R. App. P. 4(a); however, in the interest of justice, this court may excuse the untimely filing of a
notice of appeal, id. In this case, we choose to do so and decline to dismiss Maurice Emery’s appeal in toto.

                                                          -3-
to use, drug paraphernalia to . . . store, contain, conceal, inject, ingest, inhale, or otherwise introduce
into the human body a controlled substance in violation of [the law].” Id. § 39-17-425(a)(1) (2003).

                The primary issues raised as to the sufficiency of the evidence are whether the state
established that the defendants possessed the controlled substances and paraphernalia and whether
the defendants, if in possession of the cocaine, intended to sell the cocaine. Tennessee courts
recognize that possession may be either actual or constructive. State v. Shaw, 37 S.W.3d 900, 903
(Tenn. 2001); see also State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000). A person
constructively possesses a controlled substance when he or she has “the power and intention at a
given time to exercise dominion and control over [the contraband] either directly or through others.”
Shaw, 37 S.W.3d at 903 (quoting State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997)).
Said differently, constructive possession is the “ability to reduce an object to actual possession.”
State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). However, “[t]he mere presence of
a person in an area where drugs are discovered is not, alone, sufficient.” Bigsby, 40 S.W.3d at 90;
see also Cooper, 736 S.W.2d at 129. “Likewise, mere association with a person who does in fact
control the drugs or property where the drugs are discovered is insufficient to support a finding that
the person possessed the drugs.” Cooper, 736 S.W.2d at 129.

                 Applying the inferences from the evidence most favorable to the state, we conclude
that the evidence was sufficient to establish that the defendants constructively possessed the drugs
and paraphernalia. Thelisa Emery resided at the mobile home, and Maurice Emery stayed there
occasionally. On the date in question, Maurice Emery was apparently using the back bedroom, at
least to the extent that his clothing was lying in that room. Most of the paraphernalia was found in
the kitchen, a common area of the residence. The amount of the crack cocaine found in the bedroom
wall fixture was substantial.3 Significantly, Woodruff testified that thirty minutes before the officers
arrived, the defendants sold a rock of crack cocaine to Brandon Hunt. Although the officers found
no drugs on the defendants’ persons and found no money in the mobile home, the evidence showed
that the defendants exercised dominion and control over the drugs and the paraphernalia and had the
ability to reduce these materials to their actual possession. Accordingly, the evidence is sufficient
to establish that both of the defendants constructively possessed the drugs and paraphernalia.

                Also, we hold that Woodruff’s testimony in the light most favorable to the state
establishes that the defendants’ possession of the cocaine was attended by an intent to sell.

                 In her next issue, Thelisa Emery claims that the trial court erred in denying her motion
to sever the trials of the two defendants. Neither a written motion to sever defendants nor a
transcript of a severance hearing appears in the record, but prior to beginning the trial, the trial judge
announced that he had denied the motion to sever.




        3
            One of the officers testified that the street value of the three grams of cocaine was about $600.

                                                            -4-
                 A defendant’s motion for severance of offenses or defendants must be made before
trial, except that a motion for severance may be made before or at the close of all evidence if based
upon a ground not previously known. Tenn. R. Crim. P. 14(a). In general, the court

                shall grant a severance of defendants if: (i) before trial, it is deemed
                necessary to protect a defendant’s right to a speedy trial or it is
                deemed appropriate to promote a fair determination of the guilt or
                innocence of one or more defendants; or (ii) during trial, with consent
                of the defendant to be severed, it is deemed necessary to achieve a fair
                determination of the guilt or innocence of one or more defendants.

Id. 14(c)(2). Our supreme court has said that, with respect to a Rule 14 motion to sever offenses,
a motion to sever “is typically a pre-trial motion, see Tenn. R. Crim. P. 12(b)(5), and consequently,
evidence and arguments tending to establish or negate the propriety of consolidation must be
presented to the trial court in the hearing on the motion,” Spicer v. State 12 S.W.3d 438, 445 (Tenn.
2000). “Further,” the court said,

                because the trial court’s decision of whether to consolidate offenses
                is determined from the evidence presented at the hearing, appellate
                courts should usually only look to that evidence, along with the trial
                court’s findings of fact and conclusions of law, to determine whether
                the trial court abused its discretion by improperly joining the offenses.

                 Applying this notion from Spicer to a Rule 14 motion to sever defendants, the state
of the record obviously hampers this court’s ability to review the claim. Apparently, Thelisa Emery
moved pretrial to sever her trial from that of her brother, but the record contains no copy of the
motion, no transcript of a severance hearing, and no findings and conclusions of the trial court. Also,
we find no mention in the record that Thelisa Emery made any further effort as the trial progressed
to obtain a severance. Thus, she strives on appeal to place the trial court in error for denying a
pretrial motion to sever, despite that she has presented us with no basis for reviewing the lower
court’s pretrial determination. The defendant, as the appellant, is obliged to furnish this court with
a fair, accurate, and complete record of what transpired in the trial court with respect to the issues
that form the bases of the appeal. Tenn. R. App. P. 24(b); State v. Banes, 874 S.W.2d 73, 82 (Tenn.
Crim. App. 1993); State v. Miller, 737 S.W.2d 556, 558 (Tenn. Crim. App. 1987). In the absence
of such a record, the appellate court presumes that the trial court’s action was correct. State v. Oody,
823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).

                 Even if we were to analyze the evidence at trial in the light of Thelisa Emery’s claim
that her trial should have been severed from that of Maurice Emery, we would find no basis for
ordering a severance. We discern nothing in the record that indicates that Thelisa Emery was denied
a fair trial as a result of being tried jointly with Maurice Emery. In particular, we discern no
inculpating evidence that would have been excluded had Maurice Emery’s trial been held separately.
Thelisa Emery claims in her brief that the joint trial enabled the state to argue that the two defendants


                                                  -5-
conspired to sell drugs, but even if this claim warranted further analysis, we would be unable to
address it because the arguments of counsel are not included in the record. Again, the appellant is
obliged to provide a full and fair record of the proceedings below, and in the absence of a record of
the arguments of counsel, we cannot review the claim that the joint trial resulted in prejudice via the
state’s argument. Thus, the claim of error in denying a severance fails.

                Next, Thelisa Emery claims that the trial court erred in admitting two items of
evidence in contravention of Tennessee Rule of Evidence 404(b). First, she complains that the trial
court erroneously allowed Woodruff to testify that he saw the defendants sell cocaine to Brandon
Hunt 30 minutes before the police arrived. Second, she claims that the lower court erred in allowing
a police officer to testify that Thelisa Emery told him that she had used cocaine.

               Tennessee Rule of Evidence 404(b) provides:

               Evidence of other crimes, wrongs, or acts is not admissible to prove
               the character of a person in order to show action in conformity with
               the character trait. It may, however, be admissible for other purposes.
               The conditions which must be satisfied before allowing such evidence
               are:

                       (1) The court upon request must hold a hearing outside the
               jury’s presence;

                       (2) The court must determine that a material issue exists other
               than conduct conforming with a character trait and must upon request
               state on the record the material issue, the ruling, and the reasons for
               admitting the evidence;

                       (3) The court must find proof of the other crime, wrong, or act
               to be clear and convincing; and

                      (4) The court must exclude the evidence if its probative value
               is outweighed by the danger of unfair prejudice.

Tenn. R. Evid. 404(b).

                With regard to Woodruff’s testimony, the state argues that evidence that Thelisa
Emery sold cocaine to Brandon Hunt 30 minutes before the police arrived to search the mobile home
is probative of her intent to possess cocaine with intent to sell. We agree with the state.

              Evidence may be admissible despite the prohibition of Tennessee Rule of Evidence
404(b) when the evidence of other acts is relevant to a material issue, such as identity, intent, or
motive and when its probative value is not outweighed by the danger of unfair prejudice. State v.


                                                 -6-
Robinson, 73 S.W.3d 136, 151-52 (Tenn. Crim. App. 2001). In such a situation, the court must
further find that the evidence of the prior act is clear and convincing as required by State v. Parton,
694 S.W.2d 299, 303 (Tenn. 1985). Id. When a trial court substantially complies with the
procedural requirements of Rule 404(b), its determination will not be overturned absent an abuse of
discretion. State v. Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).

                 In the present case, Thelisa Emery claims in her brief that the evidence failed to
establish that she possessed the controlled substances and that if she possessed the cocaine, she had
no intent to sell it. Accordingly, evidence that she sold cocaine is relevant to the material issue of
intent. State v. Samuel L. Giddens, No. M2002-00163-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App.,
Nashville, Apr. 4, 2003); State v. Robert Wayne Herron, No. M2002-00951-CCA-R3-CD, slip op.
at 3-4 (Tenn. Crim. App., Nashville, Jan. 22, 2003), perm. app. denied (Tenn. 2003); State v. Little,
854 S.W.2d 643, 649 (Tenn. Crim. App. 1992). This is especially true when the prior sale occurred
only minutes before the drugs were discovered in the defendant’s home.

                 In the present case, the trial court conducted a hearing as contemplated by Rule
404(b)(1). It determined that the central issues in the case were whether Thelisa Emery possessed
the drugs and the paraphernalia and whether, if she possessed the cocaine, she did so with intent to
sell. The court determined that evidence of the sale just minutes before the officers’ arrival was
highly probative of intent to sell and that the probative value outweighed the danger of unfair
prejudice. We note that the trial court did not specifically state that the prior act of selling cocaine
had been established by clear and convincing evidence, but the conclusion is inescapable that
Clifford Woodruff clearly testified that Thelisa Emery sold cocaine to Brandon Hunt. The import
of that expected testimony was imparted to the trial court in the Rule 404(b) hearing, and although
Woodruff’s actual testimony was attended by a strong defense effort to impeach him, we conclude
that the trial court did not abuse its discretion in admitting Woodruff’s testimony.

                 With regard to the police officer’s redirect testimony that Thelisa Emery admitted
using cocaine, we again apply a Rule 404(b) analysis. The court conducted a jury-out hearing
pursuant to Thelisa Emery’s objection to the proposed testimony. Although she initially objected
on the ground that the proposed redirect testimony was beyond the scope of cross-examination, she
ultimately claimed that the testimony would constitute inadmissible character evidence. In response,
the trial judge stated that, although the evidence could not be used as character or propensity
evidence, it was relevant and admissible to show “the likelihood that the cocaine that is very
definitely in dispute as to the ownership was, in fact hers.” On this basis, the trial court allowed the
evidence.

                The trial court determined that a material issue existed other than the defendant’s
propensity to sell cocaine, and it stated its findings and conclusion. Although the trial court did not
explicitly mention whether the probative value was outweighed by the danger of unfair prejudice or
whether the prior act had been shown by clear and convincing evidence, we discern that the
relevance and probative value of the evidence outweighs the danger of an unfair prejudicial effect.
Thelisa Emery’s home contained drug paraphernalia and cocaine residue in a common area; evidence


                                                  -7-
that she used cocaine was invidious. As for the showing of the prior act by clear and convincing
evidence, the evidence emanates from Thelisa Emery’s own admission; the record contains
controversy that the officer reported the admission truthfully. In sum, we find no merit in this issue.
                In her final issue, Thelisa Emery asserts that the trial court erred in charging the jury
as to the principle of criminal responsibility. See Tenn. Code Ann. §§ 39-11-401, -402 (2003). She
claims that she had a right to be notified via the indictment that the state would pursue this theory
of prosecution. In counterpoint, the state argues that criminal responsibility is but a mode or theory
by which the state may prove the charged offense, and it is not a separate offense. We agree with
the state.

                 “An indictment that charges an accused on the principal offense ‘carries with it all
the nuances of that offense,’ including criminal responsibility.” State v. Lemacks, 996 S.W.2d 166,
173 (Tenn. 1999). Thus, when the defendants’ indictments were consolidated for trial, Thelisa
Emery was essentially apprized of the aptness of the theory of criminal responsibility. At any rate,
her indictment need not have stated criminal responsibility as a theory available to support a
prosecution. See id. at 172. Moreover, the evidence in the case supported a jury instruction that
Maurice and Thelisa Emery acted complicity in the possession of cocaine with intent to sell. See
State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990) (criminal accused entitled to a complete and correct
charge of the law); State v. Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995) (criminal
defendant entitled to jury instructions on the law governing the issues raised by the evidence). We
see no error in the trial court’s instructing the jury on the law of criminal responsibility.

                   In conclusion, we affirm the judgments of the trial court as to both defendants.4




                                                                  ___________________________________
                                                                  JAMES CURWOOD WITT, JR., JUDGE




         4
           W e have considered whether the issues raised by Thelisa Emery pose any need to notice plain error in Maurice
Emery’s case. See Tenn. R. Crim. P. 52(b) (appellate court may notice plain error despite defendant’s waiver of issue
when error affected the substantial rights of an accused). Of course, we discern no errors in Thelisa Emery’s case, but
we have considered whether the police officer’s testimony that Thelisa Emery used cocaine prejudiced his case by virtue
of the joint trial. W e conclude that it is as likely that the officer’s testimony tended to exculpate Maurice Emery as much
as inculpate him. To be sure, we find no basis for noticing plain error.

                                                            -8-
