           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                    Assigned on Briefs September 5, 2012

              STATE OF TENNESSEE v. JONATHAN FREEMAN

              Direct Appeal from the Circuit Court for Madison County
                       No. 11-49 Roy B. Morgan, Jr., Judge




              No. W2011-02497-CCA-R3-CD - Filed November 27, 2012


A Madison County Jury convicted Defendant, Jonathan Freeman, of possession of more than
one-half ounce (14.175 grams) of marijuana with intent to sell and possession of more than
one-half ounce of marijuana with intent to deliver. Defendant waived his right to a
sentencing hearing, the two convictions were merged, and he received an agreed sentence
of two years, to serve ten days, and the balance on probation, including sixty hours of
community service work. On appeal, Defendant argues that the evidence was insufficient to
support his conviction. After a thorough review, we affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and J EFFREY S. B IVINS, JJ., joined.

George Morton Googe, District Public Defender; and Susan Korsnes, Assistant Public
Defender, Jackson, Tennessee, for the appellant, Jonathan Freeman.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; James G. Woodall, District Attorney General; and Rolf Hazelhurst, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

       At approximately 10:24 p.m. on August 30, 2010, Deputy Matthew Sykes was driving
north on “the Bypass and Ashport” in Madison County. He stopped at a traffic light and saw
a vehicle in front of him driving east on Ashport Road. It appeared that no one in the car was
wearing a seatbelt. Deputy Sykes ran a check on the vehicle’s license plate and learned that
it was registered to an “antique vehicle.” Deputy Sykes turned south behind the vehicle on
Highland Avenue and initiated a traffic stop.

       Michael Martin was driving the vehicle, Defendant was sitting in the passenger’s seat,
and Kevin Martin, a juvenile, was sitting in the back seat behind Defendant. Deputy Martin
asked for Michael Martin’s driver’s license, and Mr. Martin indicated that he did not have
one. Deputy Sykes asked if anyone else in the vehicle had a license, and Defendant gave his
license to Deputy Sykes. Deputy Sykes smelled the odor of marijuana and asked Michael
Martin for consent to search the vehicle. Mr. Martin then asked Defendant for consent, and
Defendant said no. Deputy Sykes walked back to his patrol car, and Defendant later
approached the car and gave Deputy Sykes consent to search.

        Deputy Sykes searched the vehicle and found a large bag of marijuana containing
eleven smaller bags of marijuana under the seat where Defendant had been sitting.
Defendant indicated that the vehicle belonged to him and that he had purchased it from his
brother. Deputy Sykes then placed Defendant under arrest and had the vehicle towed to the
Criminal Justice Center. The marijuana was taken to the sheriff’s office where it was
weighed, placed in a sealed evidence bag, and deposited into a locked drop-box. Deputy
Sykes testified that the weight of the marijuana and the individual packaging indicated to him
that it was possessed for the purpose of sale. Also, he did not find any drug paraphernalia
during his search to indicate that the marijuana was for personal use.

       Brenda McNeil, an evidence technician with the Jackson-Madison County Metro
Narcotics Unit, retrieved the package of marijuana from the drop-box, logged it in, and
placed it in the evidence vault. She later transported it to and from the Tennessee Bureau of
Investigation (TBI) Crime Lab in Memphis. Special Agent Shalandus Harris of the TBI
Crime Lab tested the substance submitted to her in this case and determined that it was 37.3
grams or 1.3 ounces of marijuana.

        Sergeant Jackie Benton of the Jackson-Madison County Metro Narcotics Unit testified
that she had been an officer for twenty-two years and in narcotics for fifteen years. She had
training and experience in everything involved with the drug trade. Sergeant Benton testified
that she had been involved in the undercover purchase of marijuana, and she had worked
over five-hundred cases involving the drug. Concerning the present case, Sergeant Benton
said: “I know it’s at least over [a] half ounce, which is felony possession and the way it’s
packaged it’s for resale.” She said that multiple packing of marijuana is not for personal use,
it is “usually packaged for resale.” Sergeant Benton testified that in cases of marijuana for
personal use, there is usually the presence of “rolling papers, or hand rolled cigarettes, or



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rolling papers for cigars, or some sort of glass pipe, or wooden pipe, or something.” She said
that nothing in the present case indicated that the marijuana was for personal use.

        Defendant testified that he had his brother’s car at the time of the offense because his
brother was trying to sell the vehicle, and he wanted Defendant to “show it around town” in
Jackson. He said that Michael Martin had been driving the car for three or four minutes
when Deputy Sykes pulled them over. Defendant testified that Mr. Martin was previously
sitting in the front passenger’s seat of the car, and Kevin Martin, Michael Martin’s brother,
was sitting in the back seat.

        Defendant denied telling Deputy Sykes that he bought the car from his brother. He
said: “I told him that my brother was the owner. And I said my brother was trying to sell it.
I didn’t tell him all the information.” Defendant testified that he did not know there was
marijuana in the car. He admitted that he had smoked marijuana in the past. Defendant
denied ever selling the drug, and to his knowledge, Michael and Kevin Martin did not sell
marijuana.

II. Analysis

       Defendant challenges the sufficiency of the evidence to support the convictions. He
argues that the State did not prove that he “intended at any time to exercise ‘dominion and
control’ over the marijuana.” When an accused challenges the sufficiency of the convicting
evidence, our standard of review is whether, after reviewing the evidence in a 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, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560 (1979). The trier of fact, not this Court, resolves questions
concerning the credibility of the witnesses, and the weight and value to be given the evidence
as well as all factual issues raised by the evidence. State v. Tuttle, 914 S.W.2d 926, 932
(Tenn. Crim. App. 1995). Nor may this Court reweigh or re-evaluate the evidence. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is entitled to the strongest
legitimate view of the evidence and all inferences therefrom. Id. Because a verdict of guilt
removes the presumption of innocence and replaces it with a presumption of guilt, the
accused has the burden in this Court of illustrating why the evidence is insufficient to support
the verdict returned by the trier of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
“[D]irect and circumstantial evidence should be treated the same when weighing the
sufficiency of [the] evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011).

       To convict Defendant of possession of marijuana with the intent to sell or deliver, the
State had to prove that Defendant knowingly possessed not less than one-half ounce (14.175
grams) nor more than ten pounds (4535 grams) of marijuana with the intent to sell or deliver

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it. T.C.A. § 39-17-417(a)(4),(g)(1) (2010). Tennessee courts recognize that possession may
be either actual or constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001); see also
State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App. 2000). 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.’” Shaw, 37 S.W.3d 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) (quoting State v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981). However,
“[t]he mere presence of a person in an area where drugs are discovered is not, alone,
sufficient.” Bigsby, 40 S.W.3d at 90; see also 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. Further, pursuant to Tennessee Code Annotated section 39-17-419, “[i]t
may be inferred from the amount of a controlled substance or substances possessed by an
offender, along with other relevant facts surrounding the arrest, that the controlled substance
or substances were possessed with the purpose of selling or otherwise dispensing.”

       Viewing the evidence in a light most favorable to the State, the proof showed that
Deputy Sykes pulled over a vehicle in which Defendant was a passenger. Defendant told
Deputy Sykes that the vehicle belonged to him and that he had purchased it from his brother.
When Deputy Sykes asked for permission to search the vehicle, the driver asked Defendant
for consent, and Defendant initially said no. He then later approached Deputy Sykes and
gave him permission to search. Deputy Sykes searched the vehicle and found a large bag of
marijuana containing eleven smaller bags of the drug under the seat where Defendant had
been sitting. The substance was later tested and determined to be 37.3 grams or 1.3 ounces
of marijuana. Both Deputy Sykes and Sergeant Jackie Benton testified that based on the
weight of the marijuana, the individual packaging, and the lack of drug paraphernalia, it
appeared that the marijuana was possessed for the purpose of sale. Sergeant Benton testified
that nothing in the present case indicated that the marijuana was for personal use.

        Although Defendant testified that he did not know that there was marijuana in the car,
the jury was free to disbelieve his testimony. It has been repeatedly held that questions about
the “credibility of the witnesses, the weight to be given to their testimony, and the
reconciliation of conflicts in the proof are matters entrusted to the jury as the trier of fact.”
State v. Dotson, 254 S.W.3d 378, 395 (Tenn. 2008)(citing State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007)); see State v. Lewter, 313 S.W.3d 745, 747 (Tenn. 2010); State v. Bland,
958 S.W.2d 651, 659 (Tenn. 1997).




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       Based on our review of the evidence, we conclude that the evidence was sufficient to
support beyond a reasonable doubt Defendant’s convictions for possession of more than one-
half ounce of marijuana with intent to sell and possession of more than one-half ounce of
marijuana with intent to deliver, which were merged into one judgment of conviction.
Defendant is not entitled to relief on this issue.

                                     CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                  ___________________________________
                                                  THOMAS T. WOODALL, JUDGE




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