        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                 FILED
                          AT KNOXVILLE                          June 22, 1999

                                                              Cecil Crowson, Jr.
                        APRIL SESSION, 1999                   Appellate C ourt
                                                                  Clerk



STATE OF TENNESSEE,        )    C.C.A. NO. 03C01-9808-CR-00273
                           )
      Appellee,            )
                           )
                           )    KNOX COUNTY
VS.                        )
                           )    HON. RAY L. JENKINS
DAYNELLE M. KYLE,          )    JUDGE
                           )
      Appe llant.          )    (Direct Appeal - Possession of a
                           )    Controlled Substance with Intent to
                           )    Sell)




FOR THE APPELLANT:              FOR THE APPELLEE:

DARRYL W. HUMPHREY              JOHN KNOX WALKUP
P. O. Box 6655                  Attorney General and Reporter
Knoxville, TN 31914
                                ERIK W. DAAB
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                RANDALL E. NICHOLS
                                District Attorney General

                                PAULA GENTRY
                                Assistant District Attorney
                                City-County Building
                                Knoxville, TN 37902



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION



      On Novem ber 1, 1995, the Knox Co unty Grand Jury indicted Appellant

Dayn elle M. Kyle for one count of posse ssion of .5 grams or more of cocain e with

intent to sell, and one co unt of posses sion of .5 grams or m ore of cocain e with

intent to deliver. After a jury trial on October 27, 1997, Appellant was convicted

of one count of possession of .5 grams or more of cocaine with intent to sell.

After a sentencing hearing on December 11, 1997, the trial court sentenced

Appellant as a Ra nge I stan dard offe nder to a term of tw elve years in the

Tennessee Department of Correction.            Appellant challenges his conviction,

raising the following issue: whether the evidence was s ufficien t to sup port his

conviction. After a review of the record, we affirm the judgm ent of the tria l court.



                                      FACTS




      Officer Donn a Myn att of the Knox ville Police Department testified that on

May 23, 199 5, she an d som e other o fficers were condu cting su rveillance of a

suspected crack hous e. Myn att and the oth er office rs saw severa l peop le go into

the crack house and when the people came out, the officers stopped them. Most

of the people who came out of the crack house had approximately .25 grams of

cocaine and vario us items conside red to be drug pa raphern alia.



      Mynatt testified that at approximately 12:45 a.m., Appellant and two other

individuals came out of the crack house and began drinking beer. Mynatt then

approached the three individuals and stated, “Hey, I w ant to talk to y ou just a


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secon d.” The three individuals then began running in different d irections. M ynatt

then radioed for b ackup as Office r Jame s Quick began pursuit of A ppellant.

W hile Quick was running after Appellant, Mynatt saw Quick point to a telephone

pole past wh ich he ha d ran. Sh ortly therea fter, Appe llant stopped running and

laid down on the groun d. Qu ick the n put h andc uffs on Appe llant. Q uick to ld

Mynatt that Appellant had thrown some cocaine on the ground near the

telephone pole.        Q uick se arche d App ellant a nd dis covered ap proxim ately

$500.0 0 in cash .



       Mynatt testified that after she and Quick put Appellant in a patrol car, they

returned to the telephone pole. The officers found sixteen small baggies of

cocaine in a larger bag of cocaine. Mynatt estimated that the cocaine had a street

value of $1,000.00.



       Mynatt testified that based on her training and experience, the cocaine

found by the telephone pole was unquestionably packaged for resale. Mynatt

based this opinion on the amount of cash Appellant was carrying, the amount of

cocaine, the way that the cocaine was packaged, that Appellant did not have any

drug paraphernalia that he could use to ingest the cocaine himself, and that

Appellant had no “track marks” on his arms that would indicate that he used

drugs on a regular basis.1



       Officer Jame s Quick of the Kn oxville Police Depa rtment te stified that during

the surveillance on May 23, 1995, he heard Mynatt yell over the radio that she



       1
         We note with some irony that Appellant’s innocence of paraphenalia and personal use charges
serve to incriminate him of more serious drug charges.

                                               -3-
was in pursuit of a suspect. Quick saw Mynatt chasing Appellant and Quick

joined the pursuit. Quick then saw Appellant drop what appeared to be a plastic

bagg ie on the ground by a telephone pole in a “well-lit” area. The officer was

never further than twenty feet away from Appellant during the chase and he never

lost sight of A ppellant.



       Quick testified that he subsequently found sixteen small baggies of cocaine

and one larger bag of cocaine that were all in a larger ba g. Quick testified that

there was no doubt in his mind that the cocaine was the object that he had seen

Appellant drop.      Q uick estim ated that the cocaine had a street value of

$1,600 .00.



       Quick testified that in h is opinion, the cocaine was packaged for resale or

delivery.     Quick b ased th is opinion on the amount of the cocaine and the

packaging of the cocaine. Quick testified that the amount an d packag ing were

consiste nt with wh at had b een do ne by dru g deale rs in the pa st.



       Celeste White of the Tennessee Bureau of Investigation testified that the

materia l in the seve nteen b aggies was 13 .3 gram s of coca ine.



       Appellant testified that he had never been in the suspected crack house.

Appellant testified that he was merely in the area when he saw two black men

running, so he decided to run for his own protection. Appellant denied ever

having possession of the cocaine and he stated that the cash he had in his

possession was obtained by gam bling. Appellant admitted that he had never had

any regu lar emp loymen t.

                                         -4-
                                      ANALY SIS




       Appellant contends that the evidence was insufficient to support his

conviction. We must disagree.



       When an appellant challenges the sufficie ncy of th e evide nce, th is Court

is obliged to review that challenge according to certain well-settled principles. A

verdict of guilty by the jury, approved by the trial judge, accredits the testimony

of the State’s w itnesses and res olves all co nflicts in the testimony in favor of the

State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused

is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this

presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,

914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with Ap pellant to

demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the

[S]tate is entitled to th e strong est legitimate view of th e evide nce a s well a s all

reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere

the sufficiency of the evidence is contested on appeal, the relevant question for

the reviewing court is whether any ra tional trier of fact could have found the

accused guilty of every element of the offens e beyon d a reas onable doubt.

Jackson v. Virgin ia, 443 U.S . 307, 319 , 99 S. C t. 2781, 2 789, 61 L. Ed. 2d 560

(1979). In conducting o ur evaluation of the c onvicting evidence, this Cour t is

precluded from reweighing or reconsidering the evide nce. State v. Morgan, 929

S.W.2d 380, 38 3 (Ten n. Crim. A pp. 1996).          More over, this Court may not

substitute its own infe rences “for those d rawn by the trier of fact from

circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.

App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure

                                           -5-
provides, “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 findings by the trier

of fact beyo nd a rea sonab le doub t.”



      In this case, Appellant was convicted of possession of .5 grams or more

of cocaine with intent to sell. At the time of the events at issue in this case,

Tenn essee Code Annota ted sectio n 39-17 -417 pro vided, in rele vant part:

      (a) It is an offense for a de fendant to kno wingly:
              ....
              (4) Posse ss a con trolled sub stance w ith intent to manufacture,
              deliver or sell such controlled substance.
              ....
      (c) A violation of subsection (a) with respect to:
              (1) Coca ine is a C lass B felony if th e am ount in volved is point five
              (.5) grams or more of any s ubsta nce c ontain ing co caine and, in
              addition thereto, may b e fined not m ore than one hundred thousand
              dollars ($100,000); and

Tenn. Code Ann. § 39-17-417 (1995). In addition, Tennessee Code Annotated

section 39-17-419 provided:

       It may be inferred from the amount of a controlled substance or
       substances possessed by an offender, along w ith other rele vant facts
       surrounding the arres t, that the controlled su bstance or su bstances w ere
       possessed with the purpose of selling or otherwise dispensing. It may be
       inferred from circumstances indicating a casual exchange among
       individu als of a small amount of a controlled substance or substances that
       the controlled substance or substances so exchanged were possessed not
       with the purpose of selling or otherwise dispensing in violation of the
       provisions of § 39-17-417(a). Such inferences shall be transmitted to the
       jury by the trial ju dge’s charg e, and the jury w ill consider such inferences
       along with the nature of the substance possessed when affixing the
       penalty.

Tenn. C ode Ann . § 39-17-419 (1995).



       First, Appellant contends that the evidence was insufficient to establish that

he ever possessed any cocaine on the night in question. However, Officer Quick

stated that when he was ch asing A ppellant, h e was n ever furthe r than twe nty feet

                                          -6-
away from him and he never los t sight of him . Quick testified that when Appellant

was in a “well-lit” area, he saw Appellant throw w hat ap peare d to be a plas tic

baggie on the ground near a telephone pole.              Quick testified that shortly

thereafter, he and Mynatt returned to the telephone pole and found the cocaine.

Finally, Quick testified that there was no doubt in his mind that Appellant was the

person who droppe d the coc aine by th e telepho ne pole . Wh en this eviden ce is

viewed in the light most favorable to the State, as it mus t be, it is clearly sufficient

for a rational jury to conclude beyond a reasonable doubt that Appe llant had

possessed the cocaine.



       Second, Appella nt conten ds that ev en if the evid ence w as sufficient to

show that he possessed cocaine, the evidence was still insufficient to establish

that he po sses sed th e coc aine w ith inten t to sell it.      W e aga in disagree.

Esse ntially Appella nt argue s that the evidence wa s insufficient becau se there

was no proof that he ever actually sold any cocaine. However, under the express

terms of Tennessee Code Annota ted sectio n 39-17 -419, the State is not required

to introduce any proof of an actual sale in order to prove possession with intent

to sell. Rather, the jury is permitted to in fer that a defen dant h ad inte nt to se ll

based on the am ount of the controlled substance and the surrounding

circum stance s. Tenn . Code Ann. § 3 9-17-41 9 (1995 ).



       The evidence in this case showed that Appellant fled from police after he

came out of a suspected crack house. The evidence also showed that Appellant

had been in possession of 13.3 grams of cocaine that was divided into seventeen

separa te amounts that had a combined street value of between $1,000.00 and

$1,600.00. Despite that fact tha t Appellant had never had any regular

                                           -7-
employment, he had approximately $500.00 in cash in his possession when he

was arrested.           In addition, Mynatt testified that based on her training and

experience, she knew “without a doubt that th[e] cocaine was packaged for

resale.” Mynatt testified that the amount of cocaine involved was much greater

than the amount ordinarily possessed by a typical drug abuser. She stated that

unlike most drug abusers, Appellant did not have any drug parap herna lia in his

possession with which he could ingest the cocaine himself. Further, Appellant

did not have any “tra ck m arks” o n his arms that are indicative of drug abuse. The

amount of cash App ellant had in his pos session an d the way that the cocaine

was packaged were consistent with selling cocaine. In addition, Quick testified

that based on his training and experience, the cocaine was possesse d for sa le

or delivery. He testified that both the amount of cocaine involved and the fact that

it was packaged in small baggies was consistent with the way drug dealers

operate. Quick also testified that there was nothing about Appellant’s person that

would indicate that he was a drug user. When this evidence is viewed in the light

most favorable to the Sta te, it is clearly sufficie nt for a ration al jury to conclude

beyond a reasonable doubt that Appellant possessed the cocaine with intent to

sell it.2



         In this case, Appellant essentially asks us to reconsider the evidence and

substitute a verdict of not guilty in place of the ve rdict fou nd by th e jury. T hat is

not our function. Instead, we conclude that a rational jury could have found




         2
          We note that this case is similar to State v. Brown, 915 S.W .2d 3 (Te nn. C rim . App . 199 5), in
which this Court held that the evidence was sufficient to support an inference that the defendant
possessed 5.06 grams of cocaine with intent to sell because: the defendant was in an area known for drug
transactions, the amount of the cocaine and the fact that it was packaged in two small plastic bags
indica ted th at it wa s for resa le, the defe nda nt did not h ave a ny dru g par aph erna lia, an d the defe nda nt did
not appe ar to have recently inge sted dru gs. Id. at 8.

                                                        -8-
beyond a reasonable doubt that Appellant was guilty of the offense of possessing

.5 or more grams of cocaine with intent to sell. This issue is meritless.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                ____________________________________
                                JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE G. RILEY, JUDGE


___________________________________
NORMA MCGEE OGLE, JUDGE




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