         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 December 4, 2001 Session

            STATE OF TENNESSEE v. MAURICE LASHAUN NASH

                   Direct Appeal from the Circuit Court for Tipton County
                            No. 3933 Joseph H. Walker, Judge



                  No. W2000-02971-CCA-R3-CD - Filed February 8, 2002


The Appellant, Maurice LaShaun Nash, was found guilty by a Tipton County jury of possession of
a Schedule VI controlled substance with the intent to deliver, a Class E felony. The trial court
sentenced Nash, as a Range I standard offender, to eighteen months in the Department of Correction.
On appeal, Nash raises three issues for our review: (1) whether the search warrant was issued upon
probable cause; (2) whether introduction of Nash’s presence during a prior drug sale at the same
residence constituted evidence of a prior bad act in violation of Rule 404(b) of the Tennessee Rules
of Evidence; and (3) whether the evidence presented at trial was sufficient to support the verdict.
After review, we find the issues presented are without merit. Accordingly, the judgment of
conviction is affirmed.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P. J., and DAVID
H. WELLES, J., joined.

C. Michael Robbins, Memphis, Tennessee (on appeal); J. Thomas Caldwell, Ripley, Tennessee (at
trial), for the Appellant, Maurice LaShaun Nash.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; J. Ross Dyer,
Assistant Attorney General; Elizabeth T. Rice, District Attorney General; and Ryan Brown,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                      Factual Background

      In October of 1999, Covington Police Department Investigator, Ricky Chandler, received
complaints regarding the presence of numerous individuals and vehicles at a house located at 1401
Howard Street. Based upon these complaints, Investigator Chandler conducted a three-week
surveillance of the location for periods of two to three hours at a time. The surveillance revealed
numerous vehicles arriving and leaving the location; described as “in and out” traffic. He also
observed “five to seven different people that stayed there off and on.” During the periods of
surveillance, it was estimated that the Appellant was present “80 to 85%” of the time. On October
26th, a police informant was equipped with a small electronic transmitting device, which permitted
Investigator Chandler to listen and record conversations between the informant and a third party.
The informant was instructed by Investigator Chandler to go to 1401 Howard Street and attempt to
purchase drugs.1 At the time of the planned drug buy and for a two-hour period prior thereto, the
only persons inside the house were the Appellant and Brian Howard.

        Investigator Chandler positioned himself directly across the street to observe and listen on
his receiver as the transaction took place. Chandler observed Howard standing at the front door
while the informant went inside. The Appellant was seen crossing in front of the doorway inside the
house several times. After entering the house, the informant purchased one ounce of marijuana from
the Appellant. Although Investigator Chandler did not actually see the transaction take place,
Chandler testified that he recognized the Appellant’s voice on the tape recording.

         On the following day, October 27th, Investigator Chandler obtained a search warrant for 1401
Howard Street. The search warrant was based upon Chandler’s surveillance of the residence and the
transaction which took place there the night before. After searching the home, officers discovered
70 grams of marijuana, digital scales, balance scales, and plastic bags. Investigator Chandler
testified that the only personal item found in the house was a picture of the Appellant and four other
individuals. None of the Appellant’s possessions or belongings were found in the house and no
persons were present when the police entered the house to search.

        At trial, the State introduced proof that the utilities to the house were in the name of the
Appellant. The defense introduced proof that the house was occupied by Edric Weathers. The rental
manager of the property testified that the Howard Street residence was rented to Edric Weathers, and
that Weathers signed the written lease, paid the deposit, and paid the rent. The Appellant, testifying
on his own behalf, stated that he had lived at his mother’s house in Atoka for the past two years. He
acknowledged that he was a close friend of Weathers, and that the utilities to the property were in
his name. The Appellant explained that when he vacated his Covington residence to return to his
mother’s home, he transferred his utilities to 1401 Howard Street to accommodate Weathers, who
could not pay the deposit.

                                                  ANALYSIS

                                 A. Validity of Search Warrant
       The Appellant contends that the search warrant is invalid as the affidavit supporting the
warrant failed to establish probable cause. In a secondary challenge to the validity of the warrant,


        1
         Investigator Chandler explained that the use of the confidential informant in purchasing drugs was “for the
purpose of executing a searc h w arran t.” The info rmant w as no t called as a w itness at trial.

                                                        -2-
the Appellant contends that the affidavit contains “a false statement” or a “recklessly made false
statement.”

        When reviewing a trial court’s ruling on a motion to suppress, questions of credibility of the
witnesses, the weight and value of the evidence, and resolutions of conflicts in the evidence are
matters entrusted to the trial judge as the trier of fact. State v. Carter, 16 S.W.3d 762, 765 (Tenn.
2000). Findings based on evidence that do not involve issues of credibility are reviewed de novo by
this court without a presumption of correctness. State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000).
The question of whether Rule 41 of the Tennessee Rules of Criminal Procedure requires suppression
of the evidence in this case is a question of law which we review de novo with no presumption of
correctness afforded to the judgment of the court below. State v. Coffee, 54 S.W.3d 231, 232 (Tenn.
2001). The standard of review for the magistrate’s determination of probable cause for the issuance
of the search warrant is whether the magistrate had a substantial basis for concluding that the search
warrant would yield evidence of wrongdoing. State v. Jacumin, 778 S.W.2d 430, 436 (Tenn. 1989).
“A magistrate’s determination of probable cause is accorded ‘great deference’ by a reviewing court.”
Id. at 431-32.

         The Affidavit, in pertinent part, includes the following recitation of facts as provided by the
affiant, Investigator Chandler:

        After receiving numerous complaints on the above mentioned address I have sent an
        informant to 1401 Howard in Covington, Tipton County, Tennessee within the last
        72 hours and purchased approximately one (1) ounce of marijuana from Maurice
        Nash for the purpose of developing enough probable cause to request a search
        warrant. The purchase was monitored and witnessed by me. I have used this
        informant on over a dozen controlled buys in the past which have resulted in several
        legal search warrants, arrests and convictions and several pending indictments.

        The following proof was introduced at the suppression hearing:

        PROSECUTOR:             Tell me where you were - - where you observed.
        CHANDLER:               Okay. I was almost directly across the street.
        PROSECUTOR:             And your CI went to the door.
        CHANDLER:               Yes, sir.
        PROSECUTOR:             Who did you see at that point?
        ...
        CHANDLER:               Mr. Howard and Mr. Nash.
        ...
        CHANDLER:               [Appellant] was on the couch at the time the deal took place but I had
                                seen him pass in front of the door. He was on crutches at that time.
        PROSECUTOR:             But your CI was wearing a wire?
        CHANDLER:               Yes, sir.
        PROSECUTOR:             Could you hear what took place?


                                                  -3-
         CHANDLER:                   Yes, sir. I could listen to the transaction go down. I recognized Mr.
                                     Nash’s voice on the tape.
         ...
         CHANDLER:                   The CI called him by his name - - called Maurice by his name.
         ...
         PROSECUTOR:                 Is there any doubt in your mind that that was the voice of Maurice
                                     Nash?
         CHANDLER:                   No doubt at all.


         In denying the Appellant’s motion to suppress, the trial court recited the following findings:

         The affidavit sworn to procure the search warrant is supported by information
         provided by an officer who personally observed an informant enter a residence and
         heard a drug transaction by way of a monitoring device. The court finds that this
         information is presumed reliable as provided by the officer. State v. Melson, 638
         S.W.2d 342; State v. Brown, 638 S.W.2d 436. The court heard no proof to rebut the
         presumption. The court finds the warrant was adequate.
         ...
         The motion to suppress is denied.

We agree with these findings and the trial court’s conclusion that the affidavit was sufficient to
establish probable cause. The search warrant in this case was issued based upon information
personally observed by the affiant and also upon information which he overheard by means of an
electronic listening device. The affidavit states that one ounce of marijuana was purchased from the
Appellant at the 1401 Howard Street address. The affidavit clearly states that the purchase was
“monitored and witnessed” by the affiant.2 Finally, the affidavit provides that the informant has been
used by the police in “over a dozen controlled buys in the past which have resulted in several legal
search warrants, arrests and convictions.” The affidavit sufficiently informed the magistrate of both
(1) the basis for the informant’s knowledge, and (2) a basis establishing the informant’s credibility.
Spinelli v. United States, 393 U.S. 410, 412-13, 89 S. Ct. 584, 587 (1969); Aguilar v. Texas, 378
U.S. 108, 114, 84 S. Ct. 1509, 1514 (1964); Jacumin, 778 S.W.2d at 436.

         Accordingly, we find the affidavit was sufficient to establish probable cause and that no false
or misleading statements were contained in the affidavit or in the procurement of the warrant. State
v. Little, 560 S.W.2d 403, 407 (Tenn. 1978). Moreover, the basis of knowledge of both the informant
and affiant and the informant’s reliability can be determined from the entirety of the affidavit. State
v. Melson, 638 S.W.2d 342, 356 (Tenn. 1982). The trial court properly denied the Appellant’s
motion to suppress.



         2
           The Appellant challenges this statement in the affidavit that Investigator Chandler “witnessed” the illegal drug
activity as his testim ony at the su ppression hearing in dicated that he “d idn’t see the actual transaction go d ow n.”

                                                           -4-
                             B. Admission of Prior Drug Activity
        We next examine the Appellant’s argument that the trial court erred by denying his motion
in limine which sought exclusion of any evidence pertaining to an alleged drug transaction between
him and an informant the previous night. The Appellant contends that the introduction of this
testimony was “unfairly prejudicial” and exceeded the scope of those narrowly defined exceptions
contained within Rule 404(b) of the Tennessee Rules of Evidence.

       At trial, the State was permitted to introduce the following proof with regard to the
Appellant’s prior drug activity, which we summarize as follows:

         On October 26, 1999, Investigator Chandler testified that he positioned himself
         across the street from the 1401 Howard Street address and then directed two
         informants into the house in an attempt to purchase drugs. Chandler related that he
         had been surveilling the house for two hours at this time and had determined that the
         only occupants of the house were the Appellant and Brian Howard. Mr. Howard
         pretty much stayed at the doorway of the house most of the time, either on the porch
         or at the doorway. . . . The CI’s walked up, one went into the house, one stayed at the
         door. Chandler observed the Appellant in the house.3 After about forty-five seconds
         to a minute, not much more than a minute . . . they came back out and Chandler
         followed his informants to a prearranged meeting place. The informants delivered
         to Chandler one bag of a green leafy material that field-tested positive for marijuana.4

The State argues that the testimony concerning the alleged drug sale on the previous night was
proper, and was offered to establish a common scheme or plan, i.e., that the house was being utilized
by the Appellant for the sole purpose of selling drugs. On appeal, the State asserts that at trial the
“State’s theory was that the [Appellant] used 1401 Howard Street as his ‘stash house’ and Chandler’s
testimony ‘was highly probative to this matter.’”

         Rule 404(b) of the Tennessee Rules of Evidence provides:

                Evidence of other crimes, wrongs, or acts is not admissible to prove the
         character of a person in order to show action in conformity with the character trait.


         3
             Prosecutor:     So its my understanding that before the buy took place, you saw
                             [the Appellant] in the house?
         Chand ler:          Yes.
         Prosecutor:         And then you saw him after the buy took place?
         Chand ler:          Yes.

         4
           Although the trial court, after a jury-out 404(b) hearing, perm itted introduction of the ab ove testim ony, it also
found “that the unfair prejudice outw eighed the pro bative valu e with regard to the co nclusion m ade as to w ho actually
did the sale,” and directed Investigator Chandler not to identify the Appellant as the seller. Although the trial court
attempted to shield from the jury the fact that it was the Appellant who so ld drugs to the police informant, little was left
to the jury’s imagination from the proo f introduced that the Appellant was, in fact, the drug seller.

                                                             -5-
       It may, however, be admissible for other purposes. The conditions which must be
       satisfied before allowing such evidence are:

               (1)    The court upon request must hold a hearing outside the jury’s
               presence;

               (2)     The court must determine that a material issue exists other
               than conduct conforming with a character trait and must upon request
               state on the record the material issue, the ruling, and the reasons for
               admitting the evidence; and

               (3)    The court must exclude the evidence if its probative value is
               outweighed by the danger of unfair prejudice.

In State v. Mallard, 40 S.W.3d 473, 487 (Tenn. 2001), our supreme court recently held “evidence
that the defendant has committed some other crime wholly independent of that for which he is
charged, even though it is a crime of the same character, is usually not admissible because it is
irrelevant.” Nonetheless, where the prior crime “is relevant to some matter actually in issue in the
case on trial and if its probative value as evidence of such matter in issue is not outweighed by its
prejudicial effect upon the defendant, then such evidence may be properly admitted.” Mallard, 40
S.W.3d at 487. Additionally, this court has previously stated, “only in an exceptional case will
another crime, wrong, or bad act be relevant to an issue other than the accused’s character. Such
exceptional cases include identity, intent, motive, opportunity, or rebuttal of mistake or accident.”
State v. Luellen, 867 S.W.2d 736, 740 (Tenn. Crim. App. 1992).

        First, we are not persuaded by the State’s argument that admission of the Appellant’s prior
drug sale was relevant to establish a common scheme or plan. In order to qualify as a common
scheme or plan, the modus operandi must be so unique or distinctive as to be like a signature. State
v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). The offense in the instant case, although
of the same character as the prior drug sale, was clearly not so distinctive as to be like a signature.

        At the hearing on the motion, the trial court permitted introduction of the prior drug sale but
for different grounds than those now argued by the State:

       There is a relevant issue as to the connection of the [Appellant] with the premises
       involved in 1401 Howard in Covington where the controlled substance was found,
       upon execution of the warrant . . . so the key issue for the jury is the connection of
       the [Appellant] to the premises.”

We believe this finding correctly states the relevant issue which, in effect, is whether the Appellant
constructively possessed the marijuana found at 1401 Howard Street. We also find material to the
issue of constructive possession, the fact that the Appellant sold marijuana to the informant at the
Howard Street address on October 26th, and that marijuana was seized from the same premises on


                                                 -6-
the following day. These facts are relevant to the question of whether the Appellant had control over
the house and knowledge that marijuana was present. We agree with the trial court’s findings (1)
that the probative value of the Appellant’s unlawful activities at the Howard Street address was not
outweighed by the danger of unfair prejudice, Tennessee Rule of Evidence 404(b)(3); and (2) that
proof was shown by clear and convincing evidence that the Appellant committed the crime. State
v. Parton, 694 S.W.2d 293, 303 (Tenn. 1985). This issue is without merit.

                                   C. Sufficiency of the Evidence
        The Appellant maintains that the evidence presented at trial is insufficient to support the
jury’s verdict of guilty. Specifically, the Appellant asserts that the evidence introduced against him
was “purely circumstantial,” and argues that the State failed to prove that he “was in possession and
control of the premises at 1401 Howard Street.”

         A jury conviction removes the presumption of innocence with which a defendant is cloaked
and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is sufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
In determining 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). Likewise, it is not the duty of this
court to revisit questions of witness credibility on appeal, that function being within the province of
the trier of fact. See generally State v. Adkins, 786 S.W.2d 642, 646 (Tenn. 1990); State v. Burlison,
868 S.W.2d 713, 718-19 (Tenn. Crim. App. 1993). Instead, the defendant must establish that the
evidence presented at trial was so deficient that no reasonable trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,
99 S. Ct. 2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994), cert. denied, 513
U.S. 1086, 115 S. Ct. 743 (1995); Tenn. R. App. P. 13(e). The State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences which may be drawn therefrom. State
v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992), cert. denied, 507 U.S. 954, 113 S. Ct. 1368 (1993).

         A crime may be established by circumstantial evidence alone. State v. Tharpe, 726 S.W.2d
896, 899-900 (Tenn. 1987). However, before an accused may be convicted of a criminal offense
based only upon circumstantial evidence, the facts and circumstances “must be so strong and cogent
as to exclude every other reasonable hypothesis save the guilt of the defendant.” State v. Crawford,
470 S.W.2d 610, 612 (Tenn. 1971). In other words, a conviction may not rest solely upon
conjecture, guess, speculation, or a mere possibility. Tharpe, 726 S.W.2d at 900. Instead, a “web
of guilt must be woven around the defendant from which he cannot escape and from which facts and
circumstances [the fact finder] could draw no other reasonable inference save the guilt of the
defendant beyond a reasonable doubt.” State v. Sexton, 917 S.W.2d 263, 265 (Tenn. Crim. App.
1995) (emphasis added).

       A conviction for possession of a controlled substance may be based upon actual or
constructive possession. State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991); State v.
Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Before a person can be found to
constructively possess a drug, it must first appear that the person has the power and intention at any

                                                 -7-
given time to exercise dominion and control over the drugs either directly or through others. State
v. Williams, 623 S.W.2d 121, 125 (Tenn. Crim. App. 1981).

         We acknowledge that in reviewing a conviction for possession of a controlled substance, the
dispositive question is not ownership or whether the accused had control over the place where the
drugs were found; rather, the question is whether the accused had actual or constructive possession
of the drugs themselves. Indeed, under a theory of constructive possession, physical presence or
dominion over the drugs is not required. To the contrary, constructive possession only requires “the
power and intention . . . to exercise dominion and control” over the drugs either directly or
indirectly. Id. at 125. Obviously, proof that the accused had ownership or control over the property
where contraband is kept may help resolve the question of constructive possession because it gives
rise to an inference of knowledge and possession of the contraband. See State v. Brown, 915 S.W.2d
3, 7-8 (Tenn. Crim. App. 1995); State v. Jackson, No. M1998-00035-CCA-R3-CD (Tenn. Crim.
App. at Nashville, May 5, 2000). Nonetheless, it is not a prerequisite for conviction.

        The proof, in the light most favorable to the State, established that on the night of October
  th
26 , the Appellant was one of two individuals involved in the sale of marijuana at a house located
at 1401 Howard Street. The next day, following execution of a search warrant, marijuana was again
located at the same address. Virtually no evidence was found to establish that the Howard Street
house was being used as a residence by anyone. Although neither the Appellant nor any of his
possessions were found in the house at the time of the search, the police estimated that the Appellant
was present “80 to 85%” of the time during their periods of surveillance. From these facts, we find
sufficient evidence to conclude that the premises were in the Appellant’s control, and that he
possessed the “power and intention to exercise dominion and control” over the marijuana seized by
the police during the search. Accordingly, we find the proof sufficient to establish that the Appellant
knowingly possessed marijuana in excess of .5 ounce with the intent to deliver. See Tenn. Code
Ann. § 39-17-417(g)(1).

                                          CONCLUSION

        We find that the trial court properly denied the Appellant’s motion in limine seeking
exclusion of the Appellant’s prior drug activity at the Howard Street address. Moreover, we
conclude that the affidavit contained sufficient information for the magistrate to find probable cause
for the issuance of the warrant. With regard to the Appellant’s sufficiency argument, we find the
evidence legally sufficient to support the jury’s verdict. Accordingly, the judgment of conviction
for felony possession of marijuana in excess of one-half ounce with the intent to deliver is affirmed.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE



                                                 -8-
