            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE

           STATE OF TENNESSEE v. RICCO DONNELL SUMMERS

                 Direct Appeal from the Circuit Court for Rutherford County
                         No. F40191 James K. Clayton, Jr., Judge



                    No. M1999-00289-CCA-R3-CD - Decided June 23, 2000


        A Rutherford County jury convicted the appellant, Ricco Donnell Summers, of one (1) count
of possession with the intent to sell over 26 grams of cocaine and one (1) count of possession of drug
paraphernalia. In addition, the Rutherford County Circuit Court, sitting without the jury, found the
appellant guilty of one (1) count of possession of a weapon by a convicted felon. The trial court
sentenced the appellant as a Range I offender to concurrent terms of ten (10) years for possession
with the intent to sell, eleven (11) months and twenty-nine (29) days for possession of drug
paraphernalia and two (2) years for unlawful possession of a weapon. On appeal, the appellant
contends that: (1) the trial court erred in allowing the state to introduce evidence that the appellant
was an occupier of Michelle Fleming’s residence after having previously determined, at a hearing
on the motion to suppress, that he had no legitimate expectation of privacy in those premises; (2) the
trial court erred in charging the jury that they could infer that the appellant, as an owner/possessor
of the premises, possessed items found in Fleming’s residence; and (3) the evidence is insufficient
to sustain his convictions for possession of drug paraphernalia and unlawful possession of a weapon.
After reviewing the record before this Court, we conclude that the appellant has waived the issue
regarding the state’s introduction of evidence that he is an occupier of the premises because he failed
to object to this testimony at trial. Furthermore, because the appellant failed to include the transcript
for the hearing on the motion to suppress in the record on appeal, this Court is unable to properly
review this issue. Moreover, we conclude that the trial court properly charged the jury regarding the
“owner/possessor inference.” Finally, the evidence is sufficient to sustain the appellant’s
convictions. Therefore, the judgment of the trial court is affirmed.


T.R.A.P. 3 Appeal as of Right; Judgment of the Circuit Court of Rutherford County is
Affirmed

SMITH, J., delivered the opinion of the court, in which HAYES, J., and OGLE , J., joined.

Robert O. Bragdon, Murfreesboro, Tennessee, attorney for the appellant, Ricco Donnell Summers

Paul G. Summers, Attorney General and Reporter and David H. Findley, Assistant Attorney General,
attorney for the appellee, State of Tennessee.
                                              OPINION


                                               FACTS

         On October 11, 1996, officers with the Murfreesboro Police Department executed a search
warrant at the home of Michelle Fleming. Officers Tim Higgins and John Jones covered the back
windows of the building while the other officers entered the home through the front doorway. When
the officers announced their presence and proceeded to enter the residence, Higgins and Jones
observed a black male wearing a red sweatshirt open the back window of the home. The man, whom
Jones identified as the appellant, then “started frantically slinging” white objects appearing to be
crack cocaine out of the window. Officer Jones ordered the appellant to go back inside the
residence, and the officers remained with the contraband until it was collected by another officer.
The white substance was tested and determined to be 130.1 grams of crack cocaine.
         Terry Spence, the officer in charge of executing the search warrant, testified that the
appellant, Michelle Fleming, Sheila Frazier and Angela Martin were inside the residence during the
search. Spence stated that the appellant and Fleming were romantically involved at the time, and
various items of property which appeared to belong to the appellant were found in the home.
Officers found men’s clothing, commensurate with the appellant’s height and weight. A loaded .380
semiautomatic pistol was also found in a bedroom closet. An identification card bearing the
appellant’s name and picture, a Medicare card, and receipts in the appellant’s name for a 1988
Chevrolet van and stereo equipment were also found in the home. Additionally, the police
recovered electronic digital scales from the home. Residue found next to the scales tested positive
for 0.1 grams of cocaine base. Finally, the police confiscated $233 in cash from the appellant and
$58 in cash from Fleming.
         Michelle Fleming testified on behalf of the defense at trial. She stated that she leased the
premises which the police searched on October 11. According to Fleming, the appellant did not live
with her, but was merely at her residence to pick up their son when the search warrant was executed.
She testified that she, not the appellant, threw the drugs out of the window.
         On cross-examination, Fleming acknowledged that the appellant frequently spent the night
at her home and kept some clothing there. Fleming denied ownership of the handgun and the
electronic scales and stated that she did not know to whom these items belonged. Fleming further
testified that the illegal drugs did not belong to her and that she did not know who brought the
cocaine into her home.
         The jury found the appellant guilty of one (1) count of possession with the intent to sell over
26 grams of cocaine and one (1) count of possession of drug paraphernalia. The parties submitted
Count Three of the indictment to the trial court for its determination, and in a simultaneous bench
trial, the court found the appellant guilty of one (1) count of possession of a firearm by a convicted
felon.1 From his convictions, the appellant now brings this appeal.



       1
         In a jury-out proceeding, the state presented evidence that the appellant had a prior
conviction for aggravated assault in 1993.

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                                  POSSESSION OF PREMISES

         In his first issue, the appellant contends that the trial court erred in allowing the state to
introduce evidence indicating that he was an occupier of Michelle Fleming’s residence at the time
the search warrant was executed. He argues that the trial court determined at a pretrial suppression
hearing that he did not have a legitimate expectation of privacy in the premises searched and, as a
result, could not contest the validity of the search warrant. Thus, he maintains that the trial court’s
determination at the motion to suppress was an adjudication on the merits, and the state was
precluded from presenting evidence to the contrary at trial.
         Prior to trial, the appellant filed a motion to suppress the drug paraphernalia and the handgun
from introduction into evidence at trial on the basis that these items were outside the scope of the
search warrant. After a hearing, the trial court concluded that the appellant had no “standing” to
contest the validity of the search warrant because he was not a legitimate resident of the premises
searched.2 At trial, however, the state introduced evidence indicating that the appellant frequently
resided at the home. Specifically, the state introduced testimony that the appellant’s clothing and
other items of property were found in the residence and elicited testimony from Fleming on cross-
examination that the appellant periodically slept at her home and kept clothing there.
         The appellant maintains that, because the issue whether he was a legitimate occupier of the
premises was litigated at the suppression hearing, the state was precluded from introducing evidence
to the contrary at trial. However, the appellant failed to object to this evidence at trial. It was the
obligation of the appellant to enter a contemporaneous objection to the trial court’s admission of the
disputed evidence, and the failure to do so constitutes waiver of the issue. Tenn. R. Evid. 103(a)(1);
Tenn. R. App. P. 36(a); State v. Robinson, 971 S.W.2d 30, 42-44 (Tenn. Crim. App. 1997).
         Additionally, the appellant failed to include the transcript from the motion to suppress in the
record before this Court. It is well-established that it is the appellant’s duty to prepare an adequate
record for appellate review. Tenn. R. App. P. 24(b). “When a party seeks appellate review there is
a duty to prepare a record which conveys a fair, accurate and complete account of what transpired
with respect to the issues forming the basis of the appeal.” State v. Ballard, 855 S.W.2d 557, 560
(Tenn. 1993).
         The appellant contends that the hearing transcript is not necessary for a proper review of this
issue in that the trial court’s order “speaks for itself.” We do not agree. Once the state contests the
“standing” of a defendant to challenge the search at the suppression hearing,3 the burden falls on the
defendant to demonstrate a “legitimate expectation of privacy in the place or property from which
the items sought to be suppressed were seized.” State v. Transou, 928 S.W.2d 949, 957 (Tenn. Crim.

       2
         The court also concluded that the handgun and the drug paraphernalia were encompassed
within the definition of “contraband” in the search warrant and were, thus, subject to seizure.
       3
          Although the transcript of the hearing was not included in the record, it appears that the
state contested the appellant’s “standing” at the hearing. The trial court’s order denying the motion
to suppress states, “the State maintains that the defendant was not a legitimate resident of the
premises at the time the search warrant was executed and, therefore, has no legal basis from which
to make said motion.”

                                                  -3-
App. 1996). Accordingly, it was incumbent on the appellant to establish a legitimate expectation
of privacy in the premises searched, i.e., Fleming’s residence. Without the suppression hearing
transcript, this Court is unable to determine whether the state actively challenged the appellant’s
“legitimate expectation of privacy” or whether the appellant simply failed to meet his burden by
declining to present any evidence on the issue. Indeed, if the appellant presented no evidence at the
suppression hearing to establish his privacy expectations in the premises searched, the trial court
would have been compelled to conclude that he held no legitimate expectation of privacy in the
residence, even though the evidence presented at trial established otherwise. As a result, in the
absence of the suppression hearing transcript, this Court is unable to properly review this issue.
        This issue has, therefore, been waived.

                   “OWNER/POSSESSOR INFERENCE” JURY CHARGE

        The appellant contends that the trial court erred in charging the jury that they could infer that
the appellant, as an owner/possessor of the premises searched, possessed items seized from
Fleming’s residence. The trial court instructed the jury that: “there is an inference that when drugs
are found on premises in the possession of the Defendant, that those drugs are owned and possessed
by the person in possession of the premises.” The appellant asserts that, by using the word
“Defendant,” the instruction impermissibly “direct[ed] the jury to consider only the Defendant as a
possible owner/possessor” and “highlight[ed] the jury’s focus on the defendant.” He further argues
that Fleming, as the actual owner/possessor of the premises, is presumed to have owned and/or
possessed the contraband found in her residence. Thus, he claims that the instruction lowered the
state’s burden of proof by merely charging the jury that they could infer that she possessed the
contraband, rather than presume so.
        Courts of this state have long recognized that having possession of the premises where
contraband is found creates an inference that the possessor had possession of the contraband. State
v. Transou, 928 S.W.2d at 956; Armstrong v. State, 548 S.W.2d 334, 336 (Tenn. Crim. App. 1976).
The instruction given by the trial court was, therefore, a correct statement of the law in this state, and
because the evidence presented at trial established that the appellant was a legitimate possessor of
the premises, the facts fully supported the instruction.
        The appellant argues that by using the word “Defendant,” the instruction improperly directed
the jury to find him guilty. Jury instructions must, however, be reviewed in the context of the overall
charge rather than in isolation. State v. Bolin, 678 S.W.2d 40, 43 (Tenn. 1984). In addition to an
instruction that the appellant was presumed innocent, the jury was properly charged that the state
must prove all of the elements of the crimes charged beyond a reasonable doubt. After reviewing
the entire jury charge, we conclude that the jury was not impermissibly instructed to find the
appellant guilty.
        Finally, the appellant alleges that the trial court erred by substituting the word “inference”
for “presumption” in the instruction. In the context of jury instructions, a mandatory presumption
violates due process because it shifts the burden of proof to the defendant. Adkins vs. State, 911
S.W.2d 334, 352 (Tenn. Crim. App. 1995). In State v. Bolin, our Supreme Court held, “the word
‘presumption’ should not be used, except in instructing on the presumption of innocence. In its place
juries may be instructed that a permissible inference may or may not be drawn of an elemental fact


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from proof by the State of a basic fact, but that such inference may be rebutted and the inference
places no burden of proof on the defendant.” 678 S.W.2d at 44-45; see also State v. Sensing, 843
S.W.2d 412, 417 (Tenn. 1992).
       The appellant insists that Fleming was the actual owner/possessor of the premises and further
claims that he should have been given the benefit of the presumption that Fleming, as the
owner/possessor of the premises, was in possession of the evidence seized. However, the appellant
overlooks that the state presented evidence that he was a joint occupier of the premises with Fleming.
Consequently, an instruction that the jury could presume that the owner(s)/occupier(s) of the
premises possessed the contraband would not benefit the appellant, but would shift the burden of
proof to the appellant and, thereby, prejudice his rights to due process. Thus, under the
circumstances the appellant should have little legitimate complaint with respect to this issue.
        The trial court properly instructed the jury regarding the “owner/possessor inference.” This
issue has no merit.

                             SUFFICIENCY OF THE EVIDENCE

         In his final issue on appeal, the appellant asserts that the evidence presented at trial was
insufficient to support his convictions for possession of drug paraphernalia and unlawful possession
of a weapon. When an appellant challenges the sufficiency of the evidence, this Court does not
reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). A jury
verdict approved by the trial judge accredits the state’s witnesses and resolves all conflicts in favor
of the state. State v. Bigbee, 885 S.W.2d 797, 803 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75
(Tenn. 1992).
         On appeal, the state is entitled to the strongest legitimate view of the evidence and all
legitimate or reasonable inferences which may be drawn therefrom. State v. Bigbee, 885 S.W.2d at
803; State v. Harris, 839 S.W.2d at 75. This Court will not disturb a verdict of guilt due to the
sufficiency of the evidence unless the defendant demonstrates that the facts contained in the record
and the inferences which may be drawn therefrom are insufficient, as a matter of law, for a rational
trier of fact to find the accused guilty beyond a reasonable doubt. State v. Brewer, 932 S.W.2d 1,
19 (Tenn. Crim. App. 1996). Accordingly, it is the appellate court’s duty to affirm the conviction
if the evidence, viewed under these standards, was sufficient for any rational trier of fact to have
found the essential elements of the offense beyond a reasonable doubt. Tenn. R. App. P. 13(e); State
v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994).
         The appellant contends that the evidence is insufficient to establish that he possessed the
handgun or the electronic scales seized from the residence. He alleges that Fleming, as the
owner/possessor of the premises, is presumed to possess the contraband found in her residence. He
maintains that, because the state failed to present any evidence to rebut this presumption, his
convictions for possession of drug paraphernalia and unlawful possession of a weapon can not stand.
         It is well-established that “possession” may be actual or constructive. State v. Brown, 823
S.W.2d 576, 579 (Tenn. Crim. App. 1991). Constructive possession occurs 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.’” State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim.
App. 1981) (quoting United States v. Craig, 522 F.2d 29 (6th Cir. 1975)). In other words,


                                                 -5-
constructive possession is “the ability to reduce an object to actual possession.” State v. Williams,
623 S.W.2d at 125 (quoting United States v. Martinez, 588 F.2d 495 (5th Cir. 1979)); see also State
v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Moreover, possession may occur either
alone or jointly with others. State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984).
Having possession of the premises where contraband is found creates an inference that the possessor
had possession of the contraband. State v. Transou, 928 S.W.2d at 956; Armstrong v. State, 548
S.W.2d at 336. However, mere presence in an area where drugs or paraphernalia are discovered does
not show possession. State v. Cooper, 736 S.W.2d at 129.
        The state presented evidence at trial that the appellant and Fleming were romantically
involved at the time of the search. Various items of property which appeared to belong to the
appellant were found in the home. Specifically, officers found men’s clothing, consistent with the
appellant’s height and weight, an identification card bearing the appellant’s name and picture, a
Medicare card in the appellant’s name, and receipts in the appellant’s name for a 1988 Chevrolet van
and stereo equipment. The officers recovered the loaded .380 semiautomatic pistol from the same
bedroom closet where the men’s clothing was found, and electronic digital scales were also found
in the home. A residue found next to the scales tested positive for 0.1 grams of cocaine base.
Additionally, officers observed the appellant throwing approximately 130 grams of crack cocaine
from a bedroom window.
        Although Fleming testified that the appellant did not live with her, she acknowledged that
the appellant frequently spent the night at her home and kept some clothing there. Furthermore,
Fleming denied ownership of the handgun and the electronic scales and stated that she did not know
to whom these items belonged.
        Viewing this evidence in the light most favorable to the state, we conclude that a rational trier
of fact could reasonably find that the appellant possessed the handgun and the electronic scales,
either alone or jointly with Fleming. Therefore, the evidence is sufficient to sustain the appellant’s
convictions for possession of drug paraphernalia and unlawful possession of a weapon.
        This issue is without merit.

                                           CONCLUSION

        After a thorough review of the record before this Court, we conclude that there is no
reversible error. Accordingly, the judgment of the trial court is affirmed.




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