         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



                 NO . M2000-02356-CCA-R3-CD - FILED SEPTEMBER 25, 2001




James Curwood Witt, Jr., J., concurring and dissenting.


               I must respectfully depart from the lead opinion in this case. I cannot conclude that
the misdemeanor offense of casually exchanging a controlled substance is a lesser-included offense
of felony possession with the intent to sell or deliver. Compare Tenn. Code Ann. § 39-17-417(a)(4)
(1997) with Tenn. Code Ann. § 39-17-418(a) (1997).

                 Because many of our proscriptive statutes establish alternative modes for committing
crimes, and because the determination of lesser-included offenses involves a statutory elements
analysis, State v. Burns 6 S.W.3d 453, 466 (Tenn. 1999), analysis of lesser-included offenses has
often entailed the comparison of a specific mode of the greater offense with a specific, related mode
of the lesser offense. See, e.g., State v. David Wayne Salley, No. E1999-00203-CCA-R3-CD (Tenn.
Crim. App., Knoxville, Oct. 11, 2000) (comparing the bodily injury mode of rape with similar mode
of aggravated assault); State v. Robbie James, No. M2000-00304-CCA-RM-CD, slip op. at 6 (Tenn.
Crim. App., Nashville, Mar. 20, 2000) (child-victim mode of aggravated sexual battery is lesser-
included offense of child rape); State v. Gary J. Greer, No. 01C01-9808-CR-00337, slip op. at 11-13
(Tenn. Crim. App., Nashville, Mar. 17, 2000), pet. for perm. app. filed (Tenn. 2000); State v. Reed,
689 S.W.2d 190, 193 (Tenn. Crim. App. 1984) (aggravated assault found to be lesser-included
offense of aggravated rape based upon commonality of “weapon” mode).

                An examination of the statutes defining drug offenses reflects that they are organized
into modes of conduct. A person commits a felony who either manufactures, delivers or sells a
controlled substance; alternatively, he who possesses the controlled substance with intent to
manufacture, deliver or sell also commits a felony. Tenn. Code Ann. § 39-17-417(a) (1997). Some
of the modes that define this offense describe mere possession, although others describe a transfer
of the controlled substance. Likewise, the misdemeanor drug statute proscribes possession as a mode
of conduct, and alternatively it proscribes “casual exchange” – that is, conduct involving a transfer
of the controlled substance. See Tenn. Code Ann. § 39-17-418(a) (establishing an offense “for a
person to knowingly possess or casually exchange a controlled substance) (emphasis added).

                In the present case, each drug offense was a felony that was alleged in the indictment
as possession with intent to sell. In my view, only the possession mode of the misdemeanor would
be a lesser-included offense. See Burns, 6 S.W.3d at 466-67. The requirement of an exchange is not
an element of the charged felony offense of possession. Judge Welles makes an influential argument
that casual exchange would constitute a lesser-included offense of felony possession pursuant to the
“(b)” prong of the Burns test, but respectfully I remain unconvinced. I do believe that the possession
mode of committing the misdemeanor would be a lesser-included offense of any mode of committing
the felony, for the simple reason that possession is a necessary condition of any manufacture,
delivery or sale, but it seems to me that the casual exchange mode lines up with only the transfer
modes of the felony offense – that is, delivery and sale.

                  Therefore, I conclude that the trial judge advisedly and correctly (1) charged the jury
that misdemeanor possession is included within the charged offense of possession and (2) omitted
casual exchange as a lesser-included offense option. I believe the analysis that supports this
conclusion utilizes and advances a methodology for determining lesser-included offenses that
facilitates this task throughout the broad range of criminal offenses.

               That said, I conclude that the trial court nevertheless erred in failing to charge the jury
as to the separate “casual exchange” inference set forth in Code section 39-17-419. That section
provides,

                It 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.
                It may be inferred from circumstances indicating a casual exchange
                among individuals 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 judge’s charge,
                and the jury will consider such inferences along with the nature of the
                substance possessed when affixing the penalty.

Tenn. Code Ann. § 39-17-419 (1997). The second clause, or the “casual exchange” portion, of this
statute is ameliorative to the defendant. It should have been charged to the jury even though the
“casual exchange” offense was not charged in the indictment.

               The rationale for giving the section 39-17-419 charge despite the absence of “casual
exchange” as a mode of committing the misdemeanor offense is that the inferences mandated in that


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section implicate issues of evidence, not statutory elements. A charged offense of felony possession
with intent to sell may be proven through evidence that shows a transfer or sale of the controlled
substance, as was done in the present case. In that situation, the jury must be informed of the
evidentiary effect of this evidence; it must be acquainted with the statutorily-mandated inference that
proof of the defendant’s transfer of a controlled substances might not indicate a felony possession,
based upon “circumstances indicating a casual exchange among individuals of a small amount of a
controlled substance.”

                In my view, this instructional issue was fairly raised by the evidence and was
“fundamental to the defense and essential to a fair trial.” See Poe v. State, 212 Tenn. 413, 420, 370
S.W.2d 488, 491 (1963). Thus, the defendant was entitled to the instruction, despite his failure to
request it or to object to its omission. Compare id. with Tenn. R. Crim. P. 30(a) and State v.
Cravens, 764 S.W.2d 754 (Tenn. 1989).

                A closer question is whether the failure to raise the issue in the defendant’s motion
for new trial constitutes a waiver or whether the error should be noticed as plain error. I conclude
that the error has affected the substantial rights of the defendant and constitutes plain error. See
Tenn. R. Crim. P. 52(b). In the present case, the defendant maintained that his possession of drugs
was to serve his personal drug habit and that any transfers to other persons were incidental or casual
and not acts of felony delivery or sale. Significantly, there was no evidence of a “buy” from
someone in law enforcement. The evidence of felony possession rested upon the testimony – and
credibility – of some of the recipients of the controlled substances or witnesses to the transfers.
Under these circumstances, it seems vital that the jury be informed of the legislatively-mandated
inference about casual exchange.

              Thus, I concur in the lead opinion’s result. I would reverse the convictions premised
upon possession of controlled substances and remand for a new trial.

                                                       ___________________________________
                                                       James Curwood Witt, Jr., Judge




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