         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 15, 2001

               STATE OF TENNESSEE v. GRADY PAUL GATLIN

                      Appeal from the Circuit Court for Marshall County
                               No. 14186    Charles Lee, Judge



                  No. M2000-02356-CCA-R3-CD - Filed September 25, 2001


JOE G. RILEY, J., dissenting.



        I, like Judge Witt, respectfully disagree with Judge Welles’ conclusion that the trial court
committed reversible error by failing to charge “casual exchange” as a lesser-included offense of
possession with intent to sell. However, I also respectfully disagree with Judge Witt’s conclusion
that the failure to give the casual exchange inference instruction was plain error. I would affirm.

        The trial court did charge “simple possession” as a lesser-included offense. Tenn. Code Ann.
§ 39-17-418(a) provides that it is unlawful to “knowingly possess or casually exchange” a controlled
substance. Our supreme court has concluded that the legislature treats “delivering . . . a controlled
substance in the same manner and as the same crime as selling a controlled substance,” even though
delivery and sale are separately listed in the statute. State v. Porter, 2 S.W.3d 190, 191 (Tenn. 1999)
(interpreting Tenn. Code Ann. § 39-17-417(a)(2) and (3)). Likewise, I believe simple possession and
casual exchange are the same crime; one cannot be convicted of both. They represent different ways
of committing the same crime.

        By charging “simple possession,” the trial court charged the lesser-included offense.
Defendant’s complaint can only be that the trial court did not give as part of the instruction the
“inference” provision which states that a “casual exchange among individuals of a small amount of
a controlled substance” may give rise to an inference that the substances were not possessed with the
intent to sell. Tenn. Code Ann. § 39-17-419; see also T. P. I. – CRIM. 31.05 (5th ed. 2000).

        However, this alleged erroneous omission of the “inference” part of the simple possession
charge is not plain error. The record contains no request for this charge, and it was not brought to
the attention of the trial court in the motion for new trial. Furthermore, final argument of counsel
is not in the record. Since the crucial issue in this case was whether the drugs were possessed for
resale versus for personal use, I would expect defense counsel to have argued that, at most, the facts
would support only simple possession. Thus, I am unconvinced that defendant suffered any
prejudice.


      I would find no plain error in the jury charge and affirm the judgment of the trial court.




                                            ___________________________________
                                            JOE G. RILEY, JUDGE




                                               -2-
