       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                        Assigned on Briefs August 12, 2015

         STATE OF TENNESSEE v. EMMANUEL BIBB HOUSTON

                 Appeal from the Circuit Court for Bedford County
                         No. 17455   F. Lee Russell, Judge


             No. M2014-00202-CCA-R3-CD – Filed December 11, 2015


Following a jury trial, the Defendant-Appellant, Emmanuel Bibb Houston, was convicted
as charged in count 1 of possession of a Schedule VI drug with intent to sell, a Class E
felony; in count 2 of possession of a Schedule VI drug with intent to deliver, a Class E
felony; in count 3 of possession of a firearm with the intent to go armed during the
commission of or attempt to commit a dangerous felony, a Class D felony; and in count 4
of possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-
417(a), -1324(a), -425(a)(1). The trial court merged count 2 with count 1 and imposed an
effective sentence of six years. Houston‟s sole issue on appeal is that the evidence is
insufficient to sustain his felony convictions. Upon our review, we affirm the judgments
of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Christopher P. Westmoreland, Shelbyville, Tennessee, for the Defendant-Appellant,
Emmanuel Bibb Houston.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles
and Richard A. Cawley, Assistant District Attorneys General, for the Appellee, State of
Tennessee.

                                      OPINION

       Initially, we must address the State‟s claim that this appeal should be dismissed
because Houston did not file a timely notice of appeal within thirty days of the trial
court‟s order denying his motion for new trial. However, a careful review of the record
shows that Houston sought and obtained a waiver of the thirty-day deadline to file the
notice of appeal but did not file his notice of appeal within the fifteen-day deadline set by
this court in its order. In order to determine whether the interest of justice mandates
waiver of this fifteen-day deadline, we must briefly summarize the procedural history of
this case.

        On September 20, 2013, the trial court sentenced Houston and entered judgments
of conviction. That same day, Houston orally moved for a new trial, and the trial court,
after hearing arguments, denied the motion for new trial and entered an order to that
effect on September 24, 2013. The order denying the motion for new trial appointed
defense counsel to represent Houston on appeal; ordered the court reporter to transcribe
the trial, sentencing hearing, and motion for new trial hearing within ninety days of the
notice of appeal; and ordered defense counsel to notify the court reporter of Houston‟s
appeal by mailing the court reporter a copy of the notice of appeal after it had been filed.
On October 1, 2013, Houston filed a motion for new trial that reduced to writing the
arguments he had made at the motion for new trial hearing.

        On January 31, 2014, Houston, through defense counsel, filed a Motion to Allow
Late Filing of Notice of Appeal, stating only that he did not timely file the notice of
appeal and that the Attorney General‟s office had no objection to the motion.1 On
February 21, 2014, the Tennessee Court of Criminal Appeals entered an order waiving
the thirty-day deadline for filing the notice of appeal and giving Houston fifteen days
from the date of the order to file a notice of appeal in the trial court. The record shows
that while two notice of appeal documents were filed in the trial court, they were not filed
until July 3, 2014, approximately four months after the deadline set by this court. The
first of these notice of appeal documents was filed on July 3, 2014, although it was dated
January 29, 2014, and the certificate of service showed that the document had been
forwarded to the State on January 29, 2014. The second notice of appeal document,
which varied in form from the first, was also filed in the trial court on July 3, 2014, but
was not stamped “Received” by the Clerk of the Appellate Courts until July 18, 2014.

       On December 1, 2014, the Clerk of the Appellate Courts sent a notice to the
Bedford County Circuit Court Clerk stating that the time for filing the record in
Houston‟s case had expired and requesting that the Clerk file the record or notify the
Tennessee Court of Criminal Appeals of the status of this appeal within twenty days of
the date of the notice. On December 8, 2014, the Bedford County Circuit Court Clerk
forwarded a letter to the Clerk of the Appellate Courts requesting additional time to file
the record on appeal in Houston‟s case because of a “[c]lerical error in filing notice of
        1
          On February 6, 2014, the trial court entered an order requiring defense counsel to “secure the
services of a court reporter to transcribe the Trial, Sentencing hearing and hearing upon Defendant‟s
Motion for a New Trial that took place in Bedford County Circuit Court[.]”
                                                  -2-
appeal[.]” On December 9, 2014, the Tennessee Court of Criminal Appeals entered an
order granting the clerk thirty days from the date of the order to transmit the record on
appeal.

         On January 2, 2015, the Bedford County Circuit Court Clerk forwarded a letter to
the Clerk of the Appellate Courts, stating that after talking with defense counsel and the
court reporter, she learned that the order for transcript had not been filed with the court
reporter and that the court reporter would need an additional sixty days to complete the
trial transcript because of a heavy caseload. On January 7, 2015, Houston filed a motion
asking this court to allow the late filing of Appellant‟s Brief because the record had not
been filed and asking for an additional sixty days in order to complete the filing of this
record. In this motion, Houston asserted that “[t]he transcript of the trial has not been
completed as a more specific Order from the court was necessary, and a change in the
Clerk‟s office delayed the discovery of this issue.” On January 13, 2015, the Tennessee
Court of Criminal Appeals entered an order wherein it noted that the notice of appeal had
been filed on July 3, 2014, and gave defense counsel until February 27, 2015, to file the
transcript of evidence with the trial court clerk. On January 16, 2015, the trial court
entered an order requiring the court reporter to transcribe all trial proceedings, sentencing
proceedings, and proceedings related to the motion for new trial so that they might be
made a part of the record incident to Houston‟s appeal.

        Tennessee Rule of Appellate Procedure 4(a) states that “the notice of appeal
required by Rule 3 shall be filed with and received by the clerk of the trial court within 30
days after the date of entry of the judgment appealed from . . . .” Upon the filing of a
motion for new trial, “the time for appeal for all parties shall run from the entry of the
order denying a new trial[.]” Tenn. R. App. P. 4(c). However, this rule also states that
“in all criminal cases the „notice of appeal‟ document is not jurisdictional and the filing
of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “„In
determining whether waiver is appropriate, this court will consider the nature of the
issues presented for review, the reasons for and the length of the delay in seeking relief,
and any other relevant factors presented in the particular case.‟” State v. Rockwell, 280
S.W.3d 212, 214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No.
M2005-00299-CCA-R3-CO, 2005 WL 3543415, at *1 (Tenn. Crim. App. Dec. 27,
2005)). “Waiver is not automatic and should only occur when „the interest of justice‟
mandates waiver.” Id. (citing Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175,
1996 WL 63950, at *1 (Tenn. Crim. App., at Nashville, Feb. 13, 1996)).

        Here, Houston filed a notice of appeal on July 3, 2014, approximately four months
after the deadline set by this court in the order allowing him to file a late notice of appeal.
As we previously noted, this court has the authority to waive “in the interest of justice”
the timely filing of the Houston‟s notice of appeal. See Tenn. R. App. P. 4(a). Although
                                              -3-
Houston sought and obtained a waiver of the thirty-day deadline to file a notice of appeal,
curiously, he has not explained why he did not file his notice of appeal within the fifteen-
day deadline set by this court in its order or how waiving this deadline serves the interest
of justice. Nevertheless, because it is not entirely clear from the record whether the
delayed filing was the result of clerical error, we will waive the timely filing of the notice
of appeal in the interest of justice.

       The evidence adduced at Houston‟s June 3, 2013 trial was as follows: Assistant
Director Timothy Joe Miller and Lieutenant Shane Daugherty with the 17th Judicial Drug
Task Force testified that Houston and lot 99, Bridlewood Trailer Park in Shelbyville,
Tennessee, his girlfriend‟s trailer-home, had been under investigation for over a year
prior to the instant offense. Assistant Director Miller explained that he knew Houston
prior to the instant offense and that Houston knew him in his capacity as a law
enforcement officer. Lieutenant Daugherty knew Houston prior to the instant offense
because they played on the same basketball courts together. Given their prior
relationship, the officers explained that their encounter with Houston on March 1, 2011,
the day of the offense, was cordial. On the day of the offense, the officers had the trailer-
home under surveillance for illegal activity. They conducted a traffic stop on an
individual who had just left the trailer-home. Assistant Director Miller recovered a $20
bag of marijuana in the car. The driver told him that he purchased the drugs at the trailer-
home from “E,” which was Houston‟s nickname. Shortly thereafter, they conducted a
knock and talk at the trailer-home, where they encountered Houston. They were dressed
in plain clothes, had badges hanging around their necks, guns displayed, and flashlights
in hand. The interior door was glass and open. The officers could see inside the trailer-
home and announced their presence. Houston, his girlfriend, and another individual were
present in the trailer-home. Houston told the officers to “Come in.”

        Upon entry, the officers were overwhelmed by the smell of burnt marijuana. They
asked Houston if they could speak with him privately. Houston led them down a hallway
toward the rear of the trailer-home and into a bedroom. They encountered Houston‟s
girlfriend in the hallway, who followed them to the bedroom. Assistant Director Miller
explained that they were investigating marijuana distribution and asked for their
cooperation and consent to search. At this point, Houston told his girlfriend to “[j]ust
hand them that stuff.” She then reached into the top drawer of a nightstand and removed
several bags of marijuana and a set of digital scales. Houston was advised of his Miranda
rights, which he said he understood and waived. Before his girlfriend left the room,
Houston said, “She don‟t [sic] have anything to do with this. This is my stuff.” Houston
was asked about additional drugs or guns in the trailer-home. In response, he pulled out
more marijuana from a men‟s basketball shoe underneath the bed and identified the
location of a gun. The officers retrieved a .40 caliber semi-automatic pistol loaded with a

                                             -4-
magazine with six rounds of ammunition from a computer bag approximately six feet
from the nightstand where the drugs were found.

         The bedroom where the gun and drugs were found had men‟s basketball shoes
underneath the bed and men‟s clothing strewn about. Lieutenant Daugherty said there
was “definitely a male living there or staying in the room on a frequent occasion.” They
agreed that Houston‟s girlfriend paid the rent for the trailer-home and that none of the
clothes in the bedroom were identified as belonging to Houston. They further explained
that Houston was cooperative the entire encounter. In regard to whether the drugs or gun
belonged to anyone else in the trailer-home, Assistant Director Miller said that Houston
“was straight up about who it belonged to and the fact that he didn‟t want anyone else to
have to . . . be in any trouble about it.” Houston “took responsibility for everything
seized from the home.”

        The officers characterized Houston as a street-level drug dealer due to the number
of people he would deal with and the small amount of drugs sold. Assistant Director
Miller described his job as “climbing the ladder” and asked Houston to work with him in
targeting his supplier in the drug trade. Houston explained that he would regularly go to
Murfreesboro, Tennessee, meet with another male whom he only knew as “Devin,” and
purchase approximately a quarter pound of marijuana. He would return to Bedford
County and break the marijuana down into smaller quantities for resale “to make ends
meet.” The officers gave Houston the opportunity to participate in a controlled buy, for
which he would be given “consideration.” If Houston assisted the officers, then they
would pass that information along to the District Attorney‟s Office. Houston was
undecided whether he wanted to participate in a controlled buy at the time, and the
officers gave him two weeks to consider it. Although Houston initiated several follow-up
telephone conversations, he ultimately “fell off conversations” with Assistant Director
Miller.

       A forensic scientist with the Tennessee Bureau of Investigation conducted testing
on five of the sixteen bags of a leafy substance recovered in connection with this case.
She confirmed that the substance was marijuana and that the total cumulative weight was
16.1 grams. The remaining eleven bags weighed 45.3 grams and visually appeared to be
marijuana.

        The jury convicted Houston of possession of marijuana in an amount weighing not
less than one-half ounce nor more than ten pounds for resale and delivery and possession
of a firearm with the intent to go armed during the commission of a dangerous felony.
After merging the drug convictions, the trial court sentenced Houston to two years‟
incarceration for possession of marijuana for resale and four years‟ incarceration for the

                                           -5-
possession of a firearm during the commission of a dangerous felony, to be served
consecutively.2

                                               ANALYSIS

       The sole issue raised by Houston with respect to the sufficiency of his drug and
firearm related convictions is whether the State adequately proved that he possessed the
contraband.3 Based on the cases cited in his brief, he argues that possession was not
established because (1) there were other people present where the drugs were found, (2)
he was not in the same room as the drugs or the firearm when initially approached by law
enforcement, (3) that he was not the owner of the premises where the drugs and firearm
were found, and (4) no evidence of his personal property was found in the trailer. In
response, the State points out that Houston claimed responsibility for the drugs, admitted
buying and selling the drugs to make extra money, and was in close proximity to the
drugs and firearm at the time of the search. We agree with the State.

        “Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.
1992)). When this court evaluates the sufficiency of the evidence on appeal, the State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences that
may be drawn from that evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011)
(citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). When a defendant
challenges the sufficiency of the evidence, the standard of review applied by this court is
“whether „any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.‟” State v. Parker, 350 S.W.3d 883, 903 (Tenn. 2011)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Similarly, Rule 13(e) of the
Tennessee Rules of Appellate Procedure states, “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 finding by the trier of fact of guilt beyond a reasonable doubt.”

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686,
691 (Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). 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)

        2
          Pursuant to Tenn. Code Annotated section 39-17-1324(e), the trial court ordered the first three
years of Houston‟s firearm conviction to be served at 100 percent less allowable credits.
        3
            We have combined issues one and two of Houston‟s brief for clarity.
                                                    -6-
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
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)). When considering the sufficiency of the evidence, this court
shall not substitute its inferences for those drawn by the trier of fact. Id.

        In order to sustain the drug convictions in this case, the State was required to
prove that Houston knowingly sold or possessed marijuana in an amount less than one
half ounce but not more than ten pounds. T.C.A. § 39-17-417(a). To sustain the firearm
conviction, the State was required to prove that Houston “possess[ed] a firearm with the
intent to go armed during the commission of or attempt to commit a dangerous felony.”
Id. § 39-17-1324(a). This offense is comprised of three separate elements: (1) that the
defendant possessed a firearm; (2) that the possession was with the “intent to go armed”;
and (3) that the first two elements occurred during the commission or attempted
commission of a “dangerous felony.” State v. Fayne, 451 S.W.3d 362, 369 (Tenn. 2014).

       In Tennessee, possession may be either actual or constructive. State v. Shaw, 37
S.W.3d 900, 903 (Tenn. 2001). 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.” Id. 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.” State v.
Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000) (citing 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.

        Viewed in the light most favorable to the State, the record shows that Houston and
his girlfriend‟s trailer-home were under surveillance for over a year prior to the instant
offense. On the date of the offense, he sold a $20 bag of marijuana to an individual while
his girlfriend‟s trailer-home was under surveillance by law enforcement. The individual
confirmed that he purchased the marijuana from Houston. Officers approached the
trailer-home, and Houston told them to come in. When asked to speak privately, Houston
led them to a back bedroom. The officers told Houston they were investigating
                                            -7-
marijuana distribution, and Houston directed his girlfriend to give them “that stuff.” She
then gave the officers several bags of marijuana and digital scales. Houston later
produced additional amounts of marijuana and identified the location of a gun, which was
in the same room only a short distance away. Houston twice admitted that the contraband
recovered from the trailer- home was his. There were men‟s basketball shoes and clothes
throughout the room. He further admitted that he was a low-level drug dealer. He told
officers that he would regularly travel to Murfreesboro to purchase marijuana, and upon
returning to Shelbyville, he would break it down into smaller amounts for resale to make
extra money. He entertained the idea of cooperating with law enforcement to target other
drug dealers, but failed to follow through. There is no question that Houston was in
constructive possession of the marijuana and gun in this case. Accordingly, the evidence
presented is more than sufficient for a reasonable juror to conclude that Houston was in
constructive possession of the marijuana and gun recovered from the trailer-home. He is
not entitled to relief.

                                    CONCLUSION

      Upon our review, we affirm the judgments of the trial court.



                                                 _________________________________
                                                 CAMILLE R. McMULLEN, JUDGE




                                           -8-
