         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs July 12, 2006

                 STATE OF TENNESSEE v. JACQUES SHERRON

                      Appeal from the Circuit Court for Crockett County
                             No. 3580 Clayburn Peeples, Judge



                   No. W2005-00903-CCA-R3-CD - Filed October 17, 2006


The appellant, Jacques Sherron, was convicted by a jury of criminal responsibility for introducing
a controlled substance into a penal institution, conspiracy to introduce a controlled substance into
a penal facility, possession of cocaine with the intent to sell or deliver and possession of marijuana
with the intent to sell or deliver. The appellant received an effective sentence of ten years on March
18, 2005. The appellant filed a pro se notice of appeal on April 6, 2005. On July 1, 2005, trial
counsel for the appellant filed a motion for new trial alleging that the evidence was insufficient, that
the verdict was based on circumstantial evidence and that the appellant’s sentence was excessive.
The appellant subsequently filed a motion in this Court requesting dismissal of his appeal without
prejudice due to the fact that the trial court had not yet ruled on the motion for new trial. This Court
denied the motion. The appellant filed an amended pro se motion for new trial. The trial court held
a hearing on the motion for new trial on September 14, 2005, at which time the appellant filed a third
amended motion for new trial. The trial court denied relief, and the appellant filed a second notice
of appeal on September 14, 2005. On appeal, the following issues are presented for our review: (1)
whether the conspiracy charge should have been dismissed for failure to state a crime; (2) whether
the evidence was sufficient to support the verdict; and (3) whether the trial court committed plain
error in failing to give an accomplice instruction to the jury. For the following reasons, we reverse
and dismiss the conspiracy conviction, and affirm the conviction for introducing a controlled
substance into a penal facility.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed in
                          Part; Reversed and Dismissed in Part.

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR ., and
JOHN EVERETT WILLILAMS, JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Jacques Sherron.

Paul G. Summers, Attorney General and Reporter; Sophia A. Lee, Assistant Attorney General; Garry
G. Brown, District Attorney General; and Jerald Campbell, Assistant District Attorney General, for
the appellee, State of Tennessee.
                                              OPINION

        On December 8, 2003, the appellant was indicted by the Crockett County Grand Jury for one
count of criminal responsibility for introducing a controlled substance into a penal institution, one
count of conspiracy to introduce a controlled substance into a penal institution, one count of
possession of cocaine with the intent to sell or deliver and one count of possession of marijuana with
the intent to sell or deliver.

        At trial, Jeffrey Allen testified that he was an inmate at the Crockett County Jail when he
made arrangements with several people including Chester Allen, Jacques McLemore and the
appellant to have marijuana and cocaine delivered to him in jail. Mr. Allen testified that he spoke
directly with the appellant regarding the plan, but that he did not know exactly what role the
appellant played in the delivery of the drugs. Mr. Allen testified that he hid some money in the jail
for the drugs and informed an outside party where the money would be found.

        After talking with Mr. Allen, the appellant delivered a brown paper bag containing two blue
boxes to Mr. Allen’s mother, Martha Allen, on September 7, 2003. The appellant informed Mrs.
Allen that the package contained cigarettes. Mrs. Allen examined one of the boxes and noticed that
it was strange looking, but did not open the box and put it back in the bag. Mrs. Allen testified that
she did not smoke, but that she had never seen cigarettes in that type of packaging.

        Mr. Allen then called his mother from the jail and asked her to deliver the package of
“cigarettes” to the jail. Mrs. Allen gave the bag to her son-in-law, Ernest Brodnax, and instructed
him to deliver it to the jail. Mrs. Allen testified that she was unaware that there were any controlled
substances in the package she received from the appellant.

        Ernest Brodnax testified that he agreed to deliver the package to Mr. Allen at the jail. He also
purchased three additional packs of cigarettes for the appellant with money from Mrs. Allen. Mr.
Brodnax did not look into the bag until he was prepared to deliver it and had no knowledge that the
blue boxes contained any illegal material. Mr. Brodnax turned the package over to the jailers,
Officers Blake Perry and Tina Howell. Officer Howell examined the package and became suspicious
because it was “bulging and hard” and she “assumed that there was something inside it other than
tobacco.” The jailers quickly alerted Lieutenant Richard Stitts, a deputy with the Crockett County
Sheriff’s Department. Once Lieutenant Stitts arrived, the three opened the packages and found what
appeared to be cocaine and marijuana. Lieutenant Stitts turned the matter over to Chief Sills of the
Sheriff’s Department for further investigation.

      Chief Sills testified that he called Mrs. Allen and asked her if Mr. Brodnax had delivered a
package to the jail. Mrs. Allen cooperated fully, giving Chief Sills Mr. Brodnax’s cell phone
number. Chief Sills contacted Mr. Brodnax and returned to the jail immediately. That evening, Mrs.


                                                  -2-
Allen, Mr. Brodnax, and Mr. Brodnax’s wife spoke with Chief Sills at the Sheriff’s Department.
Neither Mr. Brodnax nor Mrs. Allen were charged in connection with the delivery of the controlled
substances to the jail. Based on the information received from Mrs. Allen and Mr. Brodnax, Chief
Sills charged the appellant in connection with the incident. Mr. Allen ultimately pled guilty to
conspiracy to introduce contraband into a penal institution.

        Dana Rose of the Tennessee Bureau of Investigation testified that the two boxes delivered
to the jail contained 23.3 grams of marijuana and .3 grams of cocaine. The boxes were not tested
for fingerprints. The appellant did not take the stand in his own defense.

          At the conclusion of the jury trial on December 8, 2004, the appellant was convicted on all
counts.

        At a sentencing hearing held on March 18, 2005, the trial court sentenced the appellant as
a Range I standard offender to ten years for the conviction for criminal responsibility for introducing
a controlled substance into a penal institution. The trial court merged the conspiracy conviction with
the criminal responsibility conviction. The trial court also sentenced the appellant to ten years for
the possession of cocaine with the intent to sell or deliver conviction and two years for the
possession of marijuana with the intent to sell or deliver conviction. The trial court ordered the
sentences to be served concurrently, for a total effective sentence of ten years.

         On April 6, 2005, the appellant filed a pro se notice of appeal. On July 1, 2005, trial counsel
for the appellant filed a motion for new trial challenging the sufficiency of the evidence at trial and
the appellant’s sentence. On July 27, 2005, the appellant filed a motion in this Court requesting
dismissal of his appeal without prejudice due to the fact that the trial court had not yet ruled on the
motion for new trial. This Court denied the motion, determining that the court would be remiss in
dismissing the appeal based on bare allegations because the “record fails to contain a motion for new
trial pleading,” the record is “absent an order denying a motion for new trial” and the appellant has
not shown with proper documentation that a motion for new trial was actually pending before the
trial court. The appellant next filed an amended pro se motion for new trial in the trial court on
August 10, 2005, in which he challenged the sufficiency of the evidence and sought dismissal of the
indictments. The trial court held a hearing on the motion for new trial on September 14, 2005, at
which time the appellant filed a third pro se amended motion for new trial in which he argued that
the trial court failed to give an instruction on accomplice testimony, failed to give full and complete
jury instructions, and failed to grant a new trial based on violations of Brady v. Maryland, 373 U.S.
83 (1963). During the hearing on the motion for new trial, trial counsel for the appellant explained
that he was retained by friends and family members of the appellant to represent the appellant at trial
only. Trial counsel explained that at some point the appellant attempted to “get another lawyer” in
Jackson, but trial counsel later assumed that the appellant had not hired another attorney. Trial
counsel then received correspondence from the appellant in which it appeared that the appellant
intended to pursue the appeal pro se. Trial counsel stated that he filed a “perfunctory” motion for
new trial. The trial court appointed the public defender’s office to represent the petitioner on appeal.
The trial court denied relief at the conclusion of the hearing and entered an order denying the motion


                                                  -3-
for new trial on October 19, 2005. The appellant filed a second notice of appeal on September 14,
2005.

                                                 Analysis

       Initially, we must briefly address the procedural history of the case herein. The appellant’s
motion for new trial was filed on July 1, 2005, more than three months after the sentencing hearing.
A motion for new trial “shall be made . . . within thirty days of the date the order of sentence is
entered.” Tenn. R. Crim. P. 33(b). It is apparent from the record on appeal that the appellant’s
motion for new trial was untimely.

        Tennessee Rule of Appellate Procedure 3(e) provides in pertinent part:

        An appeal as of right to the Supreme Court, Court of Appeals, or Court of Criminal
        Appeals shall be taken by timely filing a notice of appeal . . . . Provided, however,
        that in all cases tried by a jury, no issue presented for review shall be predicated upon
        error in the admission or exclusion of evidence, jury instructions granted or refused,
        misconduct of jurors, parties or counsel, or other action committed or occurring
        during the trial of the case, or other ground upon 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.

“Unlike the untimely filing of the notice of appeal, this Court does not have the authority to waive
the untimely filing of a motion for new trial.” See Tenn. R. App. P. 4(a); State v. Patterson, 966
S.W.2d 435, 440 (Tenn. Crim. App. 1997). A panel of this Court has previously held that pursuant
to Rule 3(e) “the failure to file a motion for a new trial, the late filing of a motion for a new trial, and
the failure to include an issue in a motion for a new trial results in waiver of all issues which, if
found to be meritorious, would result in the granting of a new trial.” State v. Keel, 882 S.W.2d 410,
416 (Tenn. Crim. App. 1994) (footnote omitted). This waiver does not apply however, if the issue
is found to be meritorious and would result in the dismissal of the prosecution against the accused.
Id. at 416 n.5 (citing State v. Davis, 748 S.W.2d 206, 207 (Tenn. Crim. App. 1987); State v. Moore,
713 S.W.2d 670, 673-74 (Tenn. Crim. App. 1985); State v. Durham, 614 S.W.2d 815, 816 n.1 (Tenn.
Crim. App. 1981)). In addition, we also may consider errors affecting the substantial rights of the
defendant if review is necessary to do substantial justice, i.e. “plain error.” Tenn. R. Crim. P. 52(b);
State v. Johnson, 980 S.W.2d 414, 418 (Tenn. Crim. App. 1998); State v. Maynard, 629 S.W2d 911,
913 (Tenn. Crim. App. 1981).

        In the case herein, the trial court considered and ruled on the appellant’s motion for new trial
despite the fact that it was untimely. Because a trial court does not have jurisdiction to hear and
determine the merits of an untimely motion for new trial, the trial court’s “erroneous consideration
[and] ruling on a motion for new trial not timely filed . . . does not validate the motion.” State v.
Martin, 940 S.W.2d 567, 569 (Tenn. 1997) (citing State v. Dodson, 780 S.W.2d 778, 780 (Tenn.
Crim. App. 1989)). Consequently, we may only address issues which may result in the dismissal of


                                                    -4-
the prosecution of the appellant, namely the sufficiency of the evidence, or issues that evince plain
error on the part of the trial court. See Dodson, 780 S.W.2d at 780; Tenn. R. Crim. P. 52(b). The
appellant argues on appeal that the indictment should be dismissed for failure to state a crime, that
the evidence is insufficient to support his conviction, and that the trial court committed plain error
by failing to instruct the jury on accomplice testimony. Because all of these issues, if meritorious,
would either result in a dismissal of the prosecution or could result in a finding of plain error on the
part of the trial court, we will address the appellant’s issues in spite of the untimeliness of the motion
for new trial.

                                               Indictment

         The appellant alleges that the indictment for conspiracy in Count Two failed to allege an
overt act in furtherance of the agreement. Consequently, the appellant argues that the conviction was
a “nullity” and should be dismissed. The State disagrees, contending initially that the appellant
waived the issue for failure to raise it in a timely-filed motion for new trial. In the alternative, the
State argues that he waived the issue for failure to raise it prior to trial, that any defect in the
indictment does not rise to the level of plain error, and, in the alternative, that any possible defect
in the indictment was cured when the appellant “pleaded to the indictment, went to trial on the merits
and had the jury render its verdict.”

         Ordinarily, defenses and objections based on defective indictments must be raised prior to
trial or they are waived. Tenn. R. Crim. P. 12(b)(2); State v. Wyatt, 24 S.W.3d 319, 322 (Tenn.
2000). It is undisputed that the appellant herein failed to object to the indictment prior to trial.
However, the waiver rule does not apply when the indictment fails to allege an essential element of
the offense, as the appellant argues herein. State v. Perkinson, 867 S.W.2d 1, 5-6 (Tenn. Crim. App.
1992). Thus, if the indictment fails to state an offense, the appellant has not waived the issue by
failing to object to the indictment prior to trial.

        As a general matter, “[t]he indictment must state the facts constituting the offense in ordinary
and concise language, without prolixity or repetition, in such a manner as to enable a person of
common understanding to know what is intended, and with that degree of certainty which will enable
the court, on conviction, to pronounce the proper judgment . . . .” Tenn. Code Ann. § 40-13-202.
It is well-settled that an indictment must provide sufficient information: “(1) to enable the accused
to know the accusation to which answer is required, (2) to furnish the court adequate basis for the
entry of a proper judgment, and (3) to protect the accused from double jeopardy.” State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997). In State v. Mencer, 798 S.W.2d 543 (Tenn. Crim. App. 1990), this
Court held that the requirement that overt act is an essential element of the offense. The allegation
and proof of an overt act was deemed an essential element of the offense of conspiracy.

        To allow a prosecutor or court to make a subsequent guess as to what was in the
        minds of the grand jury at the time they returned the indictment would deprive the
        defendant of a basic protection that the grand jury was designed to secure, because



                                                   -5-
        a defendant could then be convicted on the basis of facts not found by, and perhaps
        not even presented to, the grand jury that indicted him.

United States v. Cecil, 608 F.2d 1294, 1297 (9th Cir.1979) (quoting United States v. Keith, 605 F.2d
462, 464 (9th Cir.1979)).

        Therefore the appellant’s failure to raise this issue prior to trial does not constitute a waiver.
In State v. Perkinson, 867 S.W.2d 1 (Tenn. Crim. App. 1992), the indictment for conspiracy to
commit first degree murder was found to insufficiently describe an overt act in furtherance of the
conspiracy where the indictment alleged that the defendant and co-conspirator “did unlawfully,
knowingly, and feloniously conspire with each other to commit first degree murder through the
actions of another whom they agreed to feloniously move, incite, counsel, hire, command or procure
to willfully, deliberately, maliciously, and with premeditation kill Gilbert Peeler.” Id. at 5. The
conspiracy count herein reads as follows:

                And the Grand Jurors aforesaid, upon their oath aforesaid, present further that
        [the appellant] on or about September 7, 2003, and in the aforesaid county, and
        within said jurisdiction, and before the finding of this indictment, did unlawfully and
        knowingly conspire and agree with Jeffrey Allen to commit the offense of
        introduction of contraband into a penal institution, to wit: by conspiring to introduce
        certain controlled substances, namely, Cocaine, a Schedule II controlled substance
        as classified in T.C.A. 39-17-408, and Marihuana, a Schedule VI controlled
        substance as classified in T.C.A. 39-17-415, into the Crockett County Jail, in
        violation of 39-12-103 and 39-16-201, all of which is against the peace and dignity
        of the State of Tennessee.

We conclude based on Perkinson that the count in the indictment for conspiracy is insufficient. This
Court has reviewed the indictment and concludes that it does not allege an overt act. Consequently,
the conviction for conspiracy is reversed and dismissed.



                                     Sufficiency of the Evidence

        Next, the appellant challenges the sufficiency of the evidence. Specifically, the appellant
argues that the State failed to establish any agreement between the appellant and Mr. Allen and that
there was no proof that the appellant “knowingly” possessed the contraband in the sealed boxes that
were delivered to the jail. The State argues that the evidence was sufficient to sustain the
convictions.

        When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all


                                                   -6-
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779.

        Further, questions concerning the credibility of the witnesses and the weight and value to be
given to evidence, as well as all factual issues raised by such evidence, are resolved by the trier of
fact and not the appellate courts. State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). Moreover, a
conviction may be based entirely on circumstantial evidence when the facts are “so clearly
interwoven and connected that the finger of guilt is pointed unerringly at the defendant and the
defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993) (quoting State v. Duncan, 698
S.W.2d 63, 67 (Tenn. 1985)). If the trier of fact can determine from the proof that all other
reasonable theories except that of guilt are excluded, the evidence is sufficient.

         The appellant herein was convicted of criminal responsibility for introducing a controlled
substance into a penal institution, conspiracy to introduce a controlled substance into a penal facility,
possession of cocaine with the intent to sell or deliver and possession of marijuana with the intent
to sell or deliver. The appellant challenges all of his convictions.

                                     A. Criminal Responsibility

        Criminal responsibility for the acts of another is defined as, “[a]cting with intent to promote
or assist the commission of the offense, or to benefit in the proceeds or results of the offense, the
person solicits, directs, aids, or attempts to aid another person to commit the offense . . . .” Tenn.
Code Ann. § 39-11-402(2). Criminal responsibility is not a separate crime; rather, it is “solely a
theory by which the State may prove the defendant’s guilt of the alleged offense . . . based upon the
conduct of another person.” State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999). Under a theory
of criminal responsibility, an individual’s presence and companionship with the perpetrator of a
felony before and after the commission of an offense are circumstances from which his or her
participation in the crime may be inferred. See State v. Ball, 973 S.W.2d 288, 293 (Tenn. Crim. App.
1998). No particular act need be shown, and the defendant need not have taken a physical part in
the crime in order to be held criminally responsible. See id. To be criminally responsible for the acts
of another, the defendant must “‘in some way associate himself with the venture, act with knowledge


                                                  -7-
that an offense is to be committed, and share in the criminal intent of the principal in the first
degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembree v. State,
546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)).

        Looking to the evidence in the light most favorable to the State, the evidence at trial showed
that the appellant “associated” himself with Mr. Allen by speaking with him on the phone about the
delivery of drugs to the Crockett County Jail. Further, the evidence showed that the appellant
ultimately delivered both cocaine and marijuana concealed in tobacco packages to Mr. Allen’s
mother for delivery to the jail. While the appellant did not himself deliver the drugs to the jail, the
appellant associated himself with the venture by providing the drugs to Mrs. Allen for delivery into
the jail. The evidence was sufficient to convict the appellant of criminal responsibility for
introduction of contraband into a penal institution.

                                           B. Conspiracy

        Criminal conspiracy is committed when two or more people, each having the culpable mental
state required for the offense which is the object of the conspiracy and each acting for the purpose
of promoting or facilitating the commission of an offense, agree that one or more of them will
engage in conduct which constitutes the offense. See Tenn. Code Ann. § 39-12-103. To prove the
existence of a conspiratorial relationship, the State may show that a “mutual implied understanding”
existed between the parties. State v. Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993).
The conspiracy need not be proved by production of an official or formal agreement, in writing or
otherwise. Id. The conspiracy may be demonstrated by circumstantial evidence and the conduct of
the participants while undertaking illegal activity. Id. The very concept of a conspiracy connotes
some harmonization of design, not equal participation in every individual component of every
criminal offense. Id. Additionally, “[t]he commission of an overt act in furtherance of the
conspiracy is an essential element of the offense.” State v. Thornton, 10 S.W.3d 229, 234 (Tenn.
1999).


        Looking at the proof introduced at trial, we conclude that the jury could have reasonably
inferred the existence of an agreement between the appellant and Mr. Allen to introduce the cocaine
and marijuana into the jail. The testimony presented at trial indicated that the appellant spoke with
Mr. Allen on the telephone, then delivered the tobacco packages filled with cocaine and marijuana
to Mr. Allen’s mother for their delivery to the jail. See, e.g., State v. Yasmond Fenderson, No.
03C01-9711-CR-00496, 1999 WL 2840, at *4 (Tenn. Crim. App., at Knoxville, Jan. 6, 1999)
(determining that although the State presented no direct proof of an agreement between conspirators,
a jury may reasonably infer the existence of such an agreement from the conspirators’ acts).


              C. Possession of Cocaine and Marijuana with Intent to Sell or Deliver




                                                 -8-
        In the case herein, the appellant was convicted of two counts of violating Tennessee Code
Annotated section 39-17-417(a)(4). Tennessee Code Annotated section 39-17-417(a)(4) makes it
unlawful to “possess a controlled substance with intent to manufacture, deliver or sell such
controlled substance.” Thus, in order to convict the appellant, the State was required to show: (1)
a knowing mental state; (2) possession of cocaine and marijuana; (3) an intent to sell or deliver that
cocaine and marijuana; and (4) that the weight of the cocaine was .5 grams or less and the weight
of the marijuana was not less than 14.175 grams nor more than ten pounds. Tenn. Code Ann. 39-17-
417. The State unquestionably proved beyond a reasonable doubt that the substances found in the
packages delivered to the jail were cocaine and marijuana and that the weight of the cocaine was .3
grams and the weight of the marijuana was 23.3 grams of marijuana. Thus, the question is whether
the appellant knowingly possessed the cocaine and marijuana with the intent to sell or deliver it.

         “[A] person . . . 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). A conviction for possession of cocaine and/or marijuana may be
based upon either actual or constructive possession. State v. Shaw, 37 S.W.3d 900, 903 (Tenn.
2001); State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991); State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). Before a person can be found to constructively possess a drug,
it must appear that the person has the power and intention at any given time to exercise dominion
and control over the drugs either directly or through others. State v. Patterson, 966 S.W.2d 435, 445
(Tenn. Crim. App. 1997); State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981). The
mere presence of a person in an area where drugs are discovered is not, alone, sufficient to support
a finding that the person possessed the drugs. 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. State v. Transou,
928 S.W.2d 949, 956 (Tenn. Crim. App. 1996). However, as stated above, circumstantial evidence
alone may be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.
1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). The circumstantial
evidence must be not only consistent with the guilt of the accused, but it must also be inconsistent
with innocence and must exclude every other reasonable theory or hypothesis except that of guilt.
Tharpe, 726 S.W.2d at 900. In addition, “‘it must establish such a certainty of guilt of the accused
as to convince the mind beyond a reasonable doubt that [the defendant] is the one who committed
the crime.’” Id. (quoting Pruitt v. State, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970)). Further,
the trier of fact may infer from the amount of the drugs, along with relevant facts surrounding the
arrest, that the drugs were possessed for the purpose of selling them. Tenn. Code Ann. § 39-17-419.

        In the case herein, the proof indicated that, after being contacted by Mr. Allen in jail, the
appellant delivered the tobacco packages filled with .3 grams of cocaine and 23.3 grams of marijuana
to Mrs. Allen at her residence. Neither Mrs. Allen nor Mr. Brodnax altered the packages in any way.
Neither Mrs. Allen nor Mr. Brodnax knew that the packages contained drugs. The trier of fact was
presented with sufficient evidence to convict the appellant of possession of marijuana and cocaine
with the intent to sell or deliver when there was undisputed evidence introduced at trial as to the



                                                 -9-
quantity of the drugs and the delivery of the drugs by the appellant to Mrs. Allen for ultimate
delivery to the jail.

        We determine that the evidence is sufficient to sustain the appellant’s convictions. The
evidence is sufficient to support the jury’s determination in that “it fairly and legitimately tends to
connect the defendant with the commission of the crime[s] charged.” See State v. Bigbee, 885
S.W.2d 797, 803 (Tenn. 1994), superceded by statute as stated in State v. Stout, 46 S.W.3d 689
(Tenn. 2001). The appellant’s argument regarding the weakness of the evidence points primarily to
the weight of the evidence, which was to be determined by the jury. Our role on appeal is simply
to determine whether the evidence was legally sufficient for any trier of fact to have found the
essential elements of the offenses beyond a reasonable doubt. We conclude that it was.

                                   Jury Instruction on Accomplices

         Lastly, the appellant complains that the trial court committed plain error by failing to give
the jury an instruction on accomplice testimony because there was “ample evidence from which the
jury could infer that Martha Allen and Ernest Brodnax were accomplices.” The appellant
acknowledges that defense counsel failed to request an accomplice instruction at trial, but insists that
the trial court committed plain error by failing to give the instruction despite the waiver. The State
argues that the appellant waived the issue for failure to request the jury instruction at trial and, in the
alternative, that the trial court was under no obligation to instruct the jury on accomplices where the
testimony did not indicate that Mrs. Allen and Mr. Brodnax were accomplices.

         In this case, the appellant challenges the testimony of Mrs. Allen and Mr. Brodnax, arguing
that they were accomplices whose testimony had to be corroborated. It is well-settled in Tennessee
that a defendant cannot be convicted solely upon the uncorroborated testimony of an accomplice. See
State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001); Monts v. State, 379 S.W.2d 34, 43 (Tenn. 1964).

        There must be some fact testified to, entirely independent of the accomplice’s
        testimony, which, taken by itself, leads to the inference, not only that a crime has
        been committed, but also that the defendant is implicated in it; and this independent
        corroborative testimony must also include some fact establishing the defendant’s
        identity. This corroborative evidence may be direct or entirely circumstantial, and it
        need not be adequate, in and of itself, to support a conviction; it is sufficient to meet
        the requirements of the rule if it fairly and legitimately tends to connect the defendant
        with the commission of the crime charged.

Bane, 57 S.W.3d at 419 (quoting State v. Bigbee, 885 S.W.2d 797, 803(Tenn. 1994)). An
accomplice is one who knowingly, voluntarily, and with common intent participates with the
principal offender in the commission of a crime. State v. Lewis, 36 S.W.3d 88, 94 (Tenn. Crim.
App. 2000); Conner v. State, 531 S.W.2d 119, 123 (Tenn. Crim. App. 1975). To satisfy the
definition of an accomplice, it is not enough that the witness merely possess guilty knowledge, is
morally delinquent, or even participated in a distinct but related offense. See State v. Lawson, 794


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S.W.2d 363, 369 (Tenn. Crim. App. 1990). Rather, the test for whether a witness is an accomplice
is whether the witness could have been convicted of the offense. Id. While Mrs. Allen received the
drugs in the tobacco packages from the appellant for delivery to the jail, and Mr. Brodnax ultimately
delivered those packages to the jail for receipt by Mr. Allen, each witness’s testimony shows that
none of the witnesses were actual accomplices to the conduct of the appellant or Mr. Allen. In fact,
the testimony is uncontradicted that both Mrs. Allen and Mr. Brodnax testified that they thought the
packages contained tobacco. The evidence is clear that none of them “knowingly, voluntarily, and
with common intent participate[d] with the principal offender in the commission of [the] offenses.”
Lewis, 36 S.W.3d at 94.

       In any event, the appellant never requested a special jury instruction on accomplice
corroboration, as he was required to do when the trial court did not give one. In State v. Anderson,
985 S.W.2d 9 (Tenn. Crim. App. 1997), this Court held that because the defendant failed to make
a request for an accomplice instruction, the defendant waived the issue.

       [O]ur supreme court has held that an instruction on the rule requiring corroboration
       of an accomplice’s testimony is not fundamental. Upon the trial court’s failure to
       instruct the jury regarding accomplice testimony and the requirement of
       corroboration, it becomes the obligation of the defendant to make a special request
       for the instruction. In the absence of a special request, the trial court does not err by
       failing to instruct the jury about accomplice testimony even if the circumstances of
       the case warrant such an instruction.

Anderson, 985 S.W.2d at 17 (citations omitted). Likewise, because the appellant in this case failed
to request a special jury instruction on accomplice testimony, he waived the issue.

        Again, this issue is also normally waived if not raised in a timely new trial motion. Here,
however, the appellant raises that issue in the context of plain error. Trial errors rising to the level
of plain error are not waived by an untimely motion for new trial. See Tenn. R. Crim. P. 52(b). In
order to determine that plain error exists:

       (a) the record must clearly establish what occurred in the trial court; (b) a clear and
       unequivocal rule of law must have been breached; (c) a substantial right of the
       accused must have been adversely affected; (d) the accused did not waive the issue
       for tactical reasons; and (e) consideration of the error is “necessary to do substantial
       justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (citing State v. Adkisson, 899 S.W.2d 626, 641-42
(Tenn. Crim. App. 1994)). All five factors must be established before plain error will be recognized.
Id. at 282-83. Consideration of all of the factors is unnecessary when the record demonstrates that
at least one of the factors cannot be established. Id. at 283. Furthermore, the “‘plain error’ must
[have been] of such a great magnitude that it probably changed the outcome of the trial.” Id.
(quoting Adkisson, 899 S.W.2d at 642).


                                                 -11-
        In our view, there has been no breach of a clear and unequivocal rule of law. Because we
determine that Mrs. Allen and Mr. Brodnax were not accomplices, there was no reason for the trial
court to give an instruction on accomplice testimony. Moreover, as stated above, the trial court
“does not err by failing to instruct the jury about accomplice testimony even if the circumstances of
the case warrant such an instruction” if the defendant does not make a special request for the
instruction. Anderson, 985 S.W.2d at 17. Further, the appellant has waived this issue through an
untimely filing of the motion for new trial and by failing to request a special instruction on
accomplice testimony. Plain error is not present.

                                            Conclusion

        For the foregoing reasons, the judgment of the trial court is reversed and dismissed in part
and affirmed in part.



                                              ___________________________________
                                              JERRY L. SMITH, JUDGE




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