                                                                                          01/30/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 5, 2019

         STATE OF TENNESSEE v. DWIGHT TWARN CHAMPION

                 Appeal from the Circuit Court for Madison County
                      No. 18-295 Roy B. Morgan, Jr., Judge
                     ___________________________________

                           No. W2019-00230-CCA-R3-CD
                       ___________________________________


The Madison County Grand Jury indicted Dwight Twarn Champion, Defendant, and
Lena Virginia Cole, Co-Defendant, for possession with intent to sell or deliver 0.5 grams
or more of cocaine, a Schedule II controlled substance, in counts one and two; simple
possession of marijuana, a Schedule VI controlled substance, in count three; and
possession with intent to use drug paraphernalia in count four. After a trial, a jury found
Defendant guilty of facilitation of criminal attempt of possession of cocaine with intent to
sell in count one, facilitation of criminal attempt of possession of cocaine with intent to
deliver in count two, and simple possession of marijuana in count three. The jury was
unable to reach a verdict in count four, and a nolle prosequi was entered on that count.
The trial court merged counts one and two and, pursuant to an agreement with the State,
sentenced Defendant as a Range III career offender to twelve years in the Tennessee
Department of Correction with a sixty percent release eligibility for merged counts one
and two and to eleven months and twenty-nine days with a seventy-five percent release
eligibility for count three, to be served concurrently to counts one and two, for a total
effective sentence of twelve years at sixty percent. Defendant filed a motion for a new
trial or verdict of acquittal, and the trial court denied the motion. On appeal, Defendant
argues that there was insufficient evidence to sustain his convictions and that the verdicts
were against the weight of the evidence. After a thorough review of the record and
applicable case law, the judgments of the trial court are affirmed.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.

George Morton Googe, District Public Defender, and Jeremy B. Epperson, Assistant
District Public Defender, Jackson, Tennessee, for the appellant, Dwight Twarn
Champion.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Jody Pickens, District Attorney General; and Bradley F. Champine,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                            Factual and Procedural History

       At trial, Nathaniel Shoate testified that he was a narcotics investigator with the
Madison County Sheriff’s Department and had been serving in that capacity for ten years.
Investigator Shoate stated that he and other investigators executed a search warrant at a
home on Labelle Street in Jackson. Investigator Shoate searched the bedroom in the
home and found a “rolled marijuana cigarette blunt on the nightstand.”

       Michael Byrd testified that he was an investigator with the Madison County
Sheriff’s Department and had been in law enforcement for approximately eight and a half
years. Investigator Byrd assisted with the execution of the search warrant at the home on
Labelle Street. Investigator Byrd found currency wrapped in a sock in a dresser. He also
found a black wallet with currency in it. Based on the amount of currency and the
different denominations, Investigator Byrd concluded that narcotics transactions were
possibly taking place. On cross-examination, Investigator Byrd stated that he did not
know to whom the socks or wallet with the currency belonged.

        Jarrod Cobb testified that he was a supervisor in the City of Jackson Metro
Narcotics unit and had been with Metro Narcotics for about ten years. Investigator Cobb
assisted with the execution of the search warrant at the home on Labelle Street.
Investigator Cobb found on the kitchen counter a glass Pyrex measuring cup with a white
powdery residue inside. While still at the house, Investigator Cobb performed two
different “field tests” on the measuring cup, which he described as “chemical tests”
where the substance changes color if it is a narcotic. Investigator Cobb agreed that a field
test is not conclusive but stated that the tests had “been reliable for [him] in the past[.]”
Based on his training and experience, Investigator Cobb concluded that the owner of the
measuring cup possibly used it to manufacture crack cocaine. Investigator Cobb noted
that a Pyrex measuring cup is not utilized for a person to use or inhale cocaine but is
“strictly for manufacture” of crack cocaine.

      On cross-examination, Investigator Cobb agreed that he did not know who put the
white powdery substance in the Pyrex measuring cup. He stated that he did not know
what chemicals were used in the field tests kits. Investigator Cobb assented that there
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had been times when a substance was presumed to be narcotics, but after the Tennessee
Bureau of Investigation (“TBI”) tested the substance, it was found to not be a controlled
substance.

        On redirect examination, Investigator Cobb stated that he preferred to do multiple
field tests, as he did during the search of the Labelle Street home, because it reduced the
chance that his field test results were incorrect.

       Cathy Dent testified that she was a special agent with the TBI and had been with
the TBI for twenty years. Agent Dent stated that she assisted with the execution of the
search warrant on the Labelle Street home and that she searched the yard and the
vehicles. She said that, when she got to “a thicket in the very back,” she found a great
deal of trash in the thicket. Along the property line adjoining the residence on the left,
she found a black plastic bag and brought it to the attention of the lead investigator.
Agent Dent testified that it would be common for a drug dealer to place their “stash”
outside and away from their person.

        On cross-examination, Agent Dent stated that, after she drew attention to the black
plastic bag, she did not remain to observe the other investigators open it. She agreed that
she could not tell how long the plastic bag had been there. She said that the plastic bag
did not have any identifiers connecting it with a specific person. Agent Dent stated that
she did not investigate the property boundaries before her search and that she just had to
“guess . . . whose line would go to what spot.” She agreed that she did not communicate
with any neighbors.

       Dennis Ifantis testified that he was a narcotics investigator with the Madison
County Sheriff’s Office and had been with the Sheriff’s Office for approximately twelve
years. Investigator Ifantis stated that he investigated the home on Labelle Street, which
belonged to Co-Defendant Cole. He said that Defendant was in a relationship with Co-
Defendant Cole and that Defendant frequently spent the night at Co-Defendant Cole’s
home. Investigator Ifantis found several documents tying Defendant and Co-Defendant
Cole to the home, including Defendant’s paystubs and credit cards, Co-Defendant Cole’s
driver’s license, and a Tennessee auto insurance card for Defendant and Co-Defendant
Cole, which covered a BMW.

       During the search of the Labelle Street home, Investigator Ifantis took pictures and
gathered evidence found by other investigators. Investigator Ifantis took pictures of the
marijuana blunt found by Investigator Shoate. He said that “marijuana is one of the
easiest narcotics to detect and identify” based on its visual and olfactory properties.
Investigator Ifantis collected and photographed the Pyrex measuring cup and submitted it
to the Jackson Police Department for fingerprint analysis, but none of the fingerprints
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were able to be lifted. He stated that the fact that the Pyrex measuring cup tested positive
for cocaine in the field indicated the sale and delivery of narcotics rather than personal
use of narcotics. He said:

               Pyrex measuring glasses are commonly used to measure and mix
        cutting agents, and a cutting agent is — it can be a vitamin, it can be flour,
        baking soda, whatever they choose. It can be anything non-narcotic. And
        the intent of that is so when you take cocaine in its form and you
        manufacture it into crack cocaine, you can cut it with these agents. That’s
        — you could practically quadruple the amount that you have and maximize
        your profits during sales.

       During the search, Investigator Ifantis photographed the currency found by
Investigator Byrd. The currency totaled close to two thousand dollars in different
denominations and in coins. Investigator Ifantis stated that seeing that much money in all
denominations “would be indicative of illegal narcotic[s] sales.”

        Investigator Ifantis stated that he examined and photographed the contents of the
plastic bag found by Agent Dent. He found a digital scale, 5.2 grams of cocaine, 13.9
grams of crack cocaine, and suboxone strips1 inside the black plastic bag. Based on the
“sheer weight” of the narcotics located in the black plastic bag and the presence of the
digital scale, Investigator Ifantis stated that the amount was consistent with intent to sell
and distribute narcotics rather than personal use of narcotics. He said that one “hit” of
crack cocaine would be approximately 0.1 gram, so the approximately nineteen grams
found during the search was not likely for personal use. Investigator Ifantis also said that
digital scales were essential in drug transactions and ensured that drug dealers were not
“ripping themselves off.” Investigator Ifantis testified that he sent the powder cocaine
and crack cocaine to the TBI for further testing.

      Investigator Ifantis said that, to the best of his knowledge, the black plastic bag
was found at the Labelle Street property and not on the neighbor’s lot. He stated that,
when the black plastic bag was located and examined in the backyard, Defendant and Co-
Defendant Cole were being detained in the front yard near the porch and that Defendant
and Co-Defendant Cole had no way to view the search of the bag or where it was found.
Based on his experience in narcotics investigations, Investigator Ifantis explained why a
drug dealer would hide his narcotics in a thicket on a wood line:


        1
          Investigator Ifantis explained that suboxone strips are a Schedule III narcotic prescribed to
addicts. The strips are “sold to people who don’t want to go to the doctor to obtain the[m], and they can
chew them. They can actually go through a chemical process to take out the concentrated narcotic that’s
in it.”
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       [Drug dealers] will separate themselves from the dope and any other
       incriminating evidence, and they’ll go to extreme measures as selling dope
       out of one house but living at another, which we could call a trap house,
       and they might even hide dope off their property. We’ve found dope
       underneath someone else’s house on someone else’s property that had
       nothing to do with it, and, therefore, it makes it extremely difficult for us to
       prosecute it and make a case out of it, but it is possible under certain
       circumstances.

        Investigator Ifantis noted that three cell phones were located in the back bedroom
of the Labelle Street home. He stated that having multiple cell phones was common in
illegal drug transactions. Investigator Ifantis explained that “[o]ne [phone] is for personal
use and the other one is called a drop phone . . . [which] is one that you would make your
drug transactions on and then eventually drop. Basically you get a new number and a
whole new phone . . . in an effort to evade law enforcement.” Investigator Ifantis was
able to ascertain that one of the phones belonged to Co-Defendant Cole, but that phone
did not contain any illegal activity. The other two cell phones were not operational.

       Investigator Ifantis testified that he spoke to Co-Defendant Cole at the scene after
giving her Miranda warnings. Co-Defendant Cole told him that there was a marijuana
blunt in the bedroom but did not say anything about the Pyrex measuring cup or the black
plastic bag along the tree line of the property. Investigator Ifantis spoke to Defendant
once he was in jail and told Defendant that the investigators found “dope” in his
backyard. Investigator Ifantis said that Defendant “was surprised” by this news. Later,
Investigator Ifantis listened to a recording of Defendant’s “booking call” in which
Defendant told someone that there “wasn’t nothing on that property. That sh** was next
door. . . . They come down and swear by nine it was on the property. That sh** wasn’t
on no property.”

       On cross examination, Investigator Ifantis stated that there was nothing about
owning a change jar or about small denominations of currency that, by themselves,
indicated drug use. He said that, on two occasions, he attempted to talk to the next door
neighbors of Defendant and Co-Defendant Cole, but the neighbors did not answer the
door. He did not attempt to speak with any other neighbors. Investigator Ifantis agreed
that he did not see who placed the black plastic bag with the drugs near the property line
and that he did not speak with any witness who saw someone place the plastic bag. He
agreed that he told Defendant that a black plastic bag was found before Defendant was
heard talking about the bag in the “booking call.” He also agreed that, while he was
searching the black plastic bag in the backyard, he was not aware of whether Defendant
and Co-Defendant Cole were viewing his activities.

                                            -5-
       Carter Depew testified as an expert witness in forensic chemistry and stated that
she was a special agent forensic scientist with the TBI for two years. Agent Depew
stated that she determined the two white powdery substances submitted in the present
case to be cocaine.

        The court instructed the jury on the charged offenses in all four counts and also on
several lesser-included offenses, including facilitation of possession of cocaine with
intent to sell or deliver, criminal attempt of possession of cocaine with intent to sell or
deliver, facilitation of criminal attempt of possession of cocaine with intent to sell or
deliver, and simple possession of cocaine in counts one and two. After deliberations, the
jury found Defendant guilty of facilitation of criminal attempt of possession of cocaine
with a weight of 0.5 grams or more with intent to sell, as a lesser-included offense in
count one, facilitation of criminal attempt of possession of cocaine with a weight of 0.5
grams or more with intent to deliver in count two, and possession of marijuana in count
three. The jury was unable to reach a verdict in count four.

        At the sentencing hearing, the trial court merged counts one and two and
sentenced Defendant pursuant to an agreement with the State as a Range III career
offender to twelve years in the Tennessee Department of Correction with a sixty percent
release eligibility and to eleven months and twenty-nine days with a seventy-five percent
release eligibility for count three, to be served concurrently with counts one and two, for
a total effective sentence of twelve years at sixty percent.

        At a hearing on Defendant’s timely Motion for a New Trial, Defendant argued that
the evidence was insufficient to sustain his convictions. The trial court denied
Defendant’s motion, finding that the evidence was sufficient to support the verdict and
that the verdict was not against the weight of the evidence. This timely appeal follows.

                                         Analysis

       Defendant argues that the evidence at trial was insufficient to sustain his
convictions. The State responds that the evidence was sufficient for the charged offenses
and for the “vicarious responsibility of [D]efendant as a facilitator of criminal conduct of
another by knowingly furnishing substantial assistance in the attempt to possess cocaine
with the intent to sell.”

        Our standard of review for a sufficiency of the evidence challenge 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) (emphasis in original); see also Tenn. R.
App. P. 13(e). Questions of fact, the credibility of witnesses, and weight of the evidence
                                            -6-
are resolved by the fact finder. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). This
court will not reweigh the evidence. Id. Our standard of review “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)) (internal quotation marks omitted).

       A guilty verdict removes the presumption of innocence, replacing it with a
presumption of guilt. Bland, 958 S.W.2d at 659; State v. Tuggle, 639 S.W.2d 913, 914
(Tenn. 1982). The defendant bears the burden of proving why the evidence was
insufficient to support the conviction. Bland, 958 S.W.2d at 659; Tuggle, 639 S.W.2d at
914. On appeal, the “State must be afforded the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221
S.W.3d 514, 521 (Tenn. 2007).

                                       Possession

       A conviction for possession of a controlled substance with intent to sell or deliver
may be had upon either actual or constructive possession. State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001). When a person “knowingly has direct physical control over a thing, at
a given time, [that person] is then in actual possession of it.” State v. Edmondson, 231
S.W.3d 925, 928 (Tenn. 2007) (quoting Black’s Law Dictionary 1163 (6th ed.1990)).
When a person knowingly has “the power and the intention at a given time to exercise
dominion and control over an object, either directly or through others[,]” that person has
constructive possession over the object. United States v. Craig, 522 F.2d 29, 32 (6th Cir.
1975) (quoting United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973)); see also
State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981). However, “the mere
presence of a person in an area where drugs are discovered is not, alone, sufficient.”
State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000) (citing State v. Cooper, 736
S.W.2d 125, 129 (Tenn. Crim. App. 1987)). “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.

                             Simple Possession of Marijuana

       Marijuana is a Schedule VI controlled substance. Tenn. Code Ann. § 39-17-
415(a)(1) (2017). “It is an offense for a person to knowingly possess or casually
exchange a controlled substance, unless the substance was obtained directly from, or
pursuant to, a valid prescription or order of a practitioner while acting in the course of
professional practice.” Tenn. Code Ann. § 39-17-418(a) (2017).

                                           -7-
       Here, there is sufficient evidence to support Defendant’s constructive possession
of the marijuana found in the bedroom. While Defendant was not a permanent resident at
the Labelle Street home, he spent a great deal of time there and often spent the night. His
paystubs and auto insurance card were located in the residence. Defendant was also
present in the same room and at the same time the investigators found the marijuana
blunt. This court has previously held, based on constructive possession, that the evidence
was sufficient to convict an occasional overnight guest who was present at the time and
close to the location where drug paraphernalia was found. State v. Edward Poe, No.
M2007-01714-CCA-R3-CD, 2008 WL 732147, at *5 (Tenn. Crim. App. Mar. 17, 2008),
perm. app. denied (Tenn. Sept. 29, 2008). The evidence is sufficient to establish that
Defendant constructively possessed the marijuana blunt.

        Defendant argues that the marijuana blunt was never sent to the TBI for
conclusive testing; therefore, the evidence was insufficient that the blunt actually
contained marijuana. However, Co-Defendant Cole told investigators that there was a
marijuana blunt in the bedroom. Investigator Ifantis testified that marijuana was the one
of the easiest narcotics to identify. Based upon years of training and experience,
Investigator Ifantis recognized the marijuana in the bedroom by sight and odor. There
was sufficient evidence for a reasonable juror to conclude that the blunt contained
marijuana and that Defendant constructively possessed it. Defendant is not entitled to
relief.

  Facilitation of Criminal Attempt of Possession with Intent to Sell or Deliver Cocaine

        When convicted of a lesser-included offense, the proof must be sufficient to
support each and every element of the convicted offense to sustain a conviction. State v.
Edward Lephanna Kilcrease, No. M2013-00515-CCA-R3-CD, 2014 WL 2832624, at *4
(Tenn. Crim. App. June 20, 2014) (citing State v. Parker, 350 S.W.3d 883, 909 (Tenn.
2001)), perm. app. denied (Tenn. June 20, 2014)). “If every element is not supported by
sufficient proof, the defendant is entitled to a reversal of the conviction.” Parker, 350
S.W.3d at 909. The fact “that the proof may support conviction of a different, even
‘greater’ offense does not [remove] the constitutional requirement that the proof support
each and every element of the offense for which the defendant was actually convicted.”
Edward Lephanna Kilcrease, 2014 WL 2832624, at *4 (quoting State v. Jeremy Wendell
Thorpe, No. M2012-02676-CCA-R3-CD, 2013 WL 5436701 (Tenn. Crim. App. Sept. 27,
2013), perm. app. granted (Tenn. Feb. 11, 2014)).

       As charged in the present indictment, possession of a controlled substance with
intent to sell or deliver occurs when a person knowingly “[p]ossess[es] a controlled
substance with intent to manufacture, deliver or sell the controlled substance.” Tenn.
Code Ann. § 39-17-417(a)(4) (2017). Facilitation of a felony occurs when a person,
                                           -8-
“knowing that another intends to commit a specific felony, but without the intent required
for criminal responsibility under § 39-11-402(2), the person knowingly furnishes
substantial assistance in the commission of the felony.” Tenn. Code Ann. § 39-11-403(a)
(2017). Under Tennessee Code Annotated section 39-12-101,

       (a) A person commits criminal attempt who, acting with the kind of
       culpability otherwise required for the offense:

              (1) Intentionally engages in action or causes a result that would
              constitute an offense, if the circumstances surrounding the conduct
              were as the person believes them to be;

              (2) Acts with intent to cause a result that is an element of the
              offense, and believes the conduct will cause the result without
              further conduct on the person’s part; or

              (3) Acts with intent to complete a course of action or cause a result
              that would constitute the offense, under the circumstances
              surrounding the conduct as the person believes them to be, and the
              conduct constitutes a substantial step toward the commission of the
              offense.

       (b) Conduct does not constitute a substantial step under subdivision (a)(3),
       unless the person’s entire course of action is corroborative of the intent to
       commit the offense.

Tenn. Code Ann. § 39-12-101 (2017). “Facilitation of criminal attempt” is not statutorily
defined, but reading the two statutes together, the State would have had to prove that
Defendant (1) knew that another intended to commit criminal attempt of possession of
cocaine with intent to sell or deliver, and (2) knowingly furnished substantial assistance
in the commission of the criminal attempt of possession of cocaine with intent to sell or
deliver.

       As stated above, Defendant was a regular overnight guest at the Labelle Street
home and was present at the time of the search when the cocaine was seized. A rational
juror could conclude that the investigators found the cocaine on the property of the
Labelle Street home when Defendant was present. Thus, Defendant constructively
possessed the cocaine. Moreover, the Pyrex measuring cup in the common area of the
kitchen field tested positive for trace amounts of cocaine, and investigators testified that
Pyrex cups were used for the manufacture of crack cocaine, not for personal use. A
rational juror could conclude that Defendant provided substantial assistance to Co-
                                           -9-
Defendant by using the Pyrex measuring cup in attempting to manufacture cocaine for
sale or delivery. In addition, Defendant could not view the investigators’ location when
they found the black plastic bag containing the cocaine, and Defendant’s jailhouse
conversation discussing the location of the bag showed that he knew of its whereabouts.
From this, a rational juror could conclude that Defendant or Co-Defendant put the bag in
the yard along the property line, and thus Defendant constructively possessed it. The
large amount of narcotics found in the black plastic bag and the amount of cash in all
denominations are evidence that the constructive possession of the drugs was for the
purpose of sale or delivery and not just for personal use. The evidence is sufficient to
sustain a conviction of facilitation of criminal attempt of possession of cocaine with
intent to sell or deliver. Defendant is not entitled to relief.

                                      Conclusion

      For the foregoing reasons, the judgments of the trial court are affirmed.


                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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