         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs August 13, 2003

               STATE OF TENNESSEE v. REGINALD D. HUGHES

                    Appeal from the Circuit Court for Williamson County
                         No. I-502-180    Donald P. Harris, Judge



                  No. M2003-00543-CCA-R3-CD - Filed November 21, 2003


The Appellant, Reginald D. Hughes, was convicted by a Williamson County jury of felony evading
arrest and misdemeanor possession of cocaine. As a result of these convictions, Hughes was
sentenced as a Range III persistent offender to an effective sentence of five years in the Department
of Correction. The single issue presented for our review is whether the evidence was sufficient to
support the verdicts. After review of the record, we find the evidence sufficient and affirm the
judgment of the trial court.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JERRY
L. SMITH, J., joined.

Fannie J. Harris, Smith, Hirsch, Blackshear & Harris, Nashville, Tennessee, for the Appellant,
Reginald D. Hughes.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Elizabeth T.
Ryan, Assistant Attorney General; Ronald L. Davis, District Attorney General; and Mary Katharine
White, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                       Factual Background

        On the afternoon of April 11, 2002, four officers with the Franklin Police Department were
on bicycle patrol on Natchez Street. After hearing “a loud bass sound,” which they believed to be
in violation of a Franklin noise ordinance, the four officers moved forward to the edge of the street
to investigate. They observed a white SUV, the only vehicle on the street, approaching them. The
officers, all in uniform, raised their hands and yelled, “Stop! Police!,” in an attempt to stop the
moving vehicle. The three officers, who testified at trial, stated that, as the SUV was parallel with
them, the Appellant looked over at them with a shocked or surprised look on his face. The Appellant
then increased his speed and continued down the street. The four officers pursued the vehicle, with
at least two of the bicycle sirens activated, still ordering the Appellant to stop. The Appellant
continued on his course, ran one stop sign, and turned onto Strahl Street, at which time the officers
lost sight of the vehicle.

        Patrol Officer Legieza, responding to the bicycle officers’ call for assistance, spotted the SUV
and turned his patrol car onto Strahl Street. As he turned onto the street, he noticed that the
Appellant had parked his SUV on the wrong side of the street. He testified that he saw the
Appellant, who was approximately two feet from his SUV, running in between two houses. The
Appellant had left the engine running and the driver’s side door open. As Officer Legieza exited his
patrol car, the Appellant immediately began walking back towards him with his arms raised. The
four bicycle officers arrived and witnessed the Appellant walking from the area between the houses
with his arms raised. The Appellant was placed in custody.

       Officer Taylor began a search of the area and discovered a plastic bag of what was later
determined to be 3.4 grams of cocaine on the ground in the area that the Appellant had been seen
walking away from. The bag was not covered with any debris despite being found in a pile of leaves.

        On May 13, 2002, a Williamson County grand jury returned a two-count indictment charging
the Appellant with one count of felony evading arrest and one count of misdemeanor possession of
cocaine. After a jury trial, the Appellant was convicted as charged. A sentencing hearing was held
on November 26, 2002, and the Appellant was sentenced, as a Range III persistent offender, to five
years for felony evading arrest, which was ordered to run concurrent with an eleven-month and
twenty-nine-day sentence for misdemeanor possession of cocaine. The Appellant’s motion for new
trial was denied, with this appeal following.

                                               Analysis

        The sole issue raised by the Appellant on appeal is the sufficiency of the evidence supporting
his convictions for felony evading arrest and misdemeanor possession of cocaine. In considering this
issue, we apply the rule that, where the sufficiency of the evidence is challenged, the relevant
question for the reviewing court is “whether, after viewing the evidence in the light most favorable
to the [State], 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 (1979); see also
Tenn. R. App. P. 13(e). Moreover, 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). All questions involving the credibility of witnesses, the weight and value to
be given the evidence, and all factual issues are resolved by the trier of fact. State v. Pappas, 754
S.W.2d 620, 623 (Tenn. Crim. App. 1987). This court will not reweigh or reevaluate the evidence
presented. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).




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       “A guilty verdict by the jury, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts in favor of the theory of the State.” State v. Grace,
493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal, a convicted
defendant has the burden of demonstrating that the evidence is insufficient. State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both. State v. Matthews, 805 S.W.2d 776,
779 (Tenn. Crim. App. 1990).

        Although a conviction may be based entirely upon circumstantial evidence, Duchac v. State,
505 S.W.2d 237, 241 (Tenn. 1974), in such cases, the facts must be “so clearly interwoven and
connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.”
State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991) (citation omitted). However, as in the case of
direct evidence, the weight to be given circumstantial evidence and “[t]he inferences to be drawn
from such evidence, and the extent to which the circumstances are consistent with guilt and
inconsistent with innocence, are questions primarily for the jury.” Marable v. State, 313 S.W.2d
451, 457 (Tenn. 1958) (citations omitted).

A. Felony Evading Arrest

      The Appellant was convicted of evading arrest, a class E felony, pursuant to Tennessee Code
Annotated § 39-16-603(b), which defines this offense as follows:

        It is unlawful for any person, while operating a motor vehicle on any street, road,
        alley or highway in this state, to intentionally flee or attempt to elude any law
        enforcement officer, after having received any signal from such officer to bring the
        vehicle to a stop.

Tenn. Code Ann. § 39-16-603(b) (1)(1997). Thus, to sustain the conviction, the evidence presented
at trial must have shown, beyond a reasonable doubt, that the Appellant: (1) was operating a motor
vehicle; (2) on a street in this state; (3) received a signal from a law enforcement officer to bring his
vehicle to a stop; and (4) intentionally fled or attempted to elude the officer.

        The Appellant does not argue that the State failed to establish each of the elements of felony
evading arrest, and we agree that each element was sufficiently established by the proof presented.
Rather, he relies on section (b)(2) of the statute, which provides that “[i]t is a defense to prosecution
under this subsection that the attempted arrest was unlawful.” Tenn. Code Ann. § 39-16-603(b)(2).
As such, he argues that “the State failed to prove beyond a reasonable doubt that the officers were
attempting to lawfully arrest the [Appellant] when he failed to stop his vehicle.” His argument on
appeal rests on the ground that the officers had no warrant for an arrest and that a violation of the
noise ordinance did not authorize an arrest. The Appellant’s argument is misplaced. Section (b)(2)
does provide a statutory defense to a charge of felony evading arrest. However, for a defendant to
rely upon this section as a defense, it must be fairly raised by the proof at trial and submitted to the


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jury for its determination. Tenn. Code Ann. § 39-11-203(a)-(d) (2003). The record before us
demonstrates that the Appellant did not rely upon this statutory defense at trial and presented no
proof to support its existence. Accordingly, the jury was not instructed upon this defense. Because
this defense was not presented for determination in the lower court, it may not be raised for the first
time on appeal. Tenn. R. App. P. 36(a). Moreover, an appellant may not change theories from the
trial court to the appellate record. State v. Alder, 71 S.W.3d 299, 303 (Tenn. Crim. App. 2001).

B. Possession of Cocaine

        The Appellant also alleges that his conviction for simple possession of cocaine, a class A
misdemeanor, was not supported by the evidence. Specifically, the Appellant argues that, under a
theory of constructive possession, the evidence was insufficient to support the conviction. He asserts
that the State relied only upon evidence that he came from the area where the drugs were found and
his mere presence in that location is insufficient proof. He argues that the State failed to prove that
he exercised the requisite “dominion and control” over the drugs. We disagree.

        To convict in this case, the State was required to prove that the Appellant knowingly
possessed a controlled substance. Tenn. Code Ann. § 39-17-418(a) (1997). There is no dispute as
to the nature of the substance found in the bag, as both the State and the Appellant stipulated that the
bag contained 3.4 grams of cocaine, a schedule II controlled substance.

        A conviction for the possession of drugs may be based upon either actual or constructive
possession. State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). In discussing the
nature of constructive possession, this court has stated that, before a person can be found to
constructively possess drugs, it must appear that the person has “the power and intention at a given
time to exercise dominion and control over . . . [the drugs] either directly or through others.” State
v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996) (citation omitted). Mere presence in the
area where the drugs are discovered is not, standing alone, sufficient to support a conviction for
possession. Id.

        The element of knowledge of the presence of a controlled substance, for purposes of unlawful
possession, is oftentimes not susceptible to direct proof. However, knowledge may be
circumstantially proven by evidence of acts, statements, or conduct. Id. After examination of the
entire record, we conclude that the circumstantial proof was sufficient for a rational jury to find that
the Appellant constructively possessed cocaine.

         Here the proof established that the Appellant attempted to elude police as they attempted to
stop his vehicle. He was then seen running from his vehicle to the area where the bag of cocaine
was found. After running between the two houses, he immediately turned and approached the officer
with his arms raised. The drugs were found in an area where officers testified that they saw no other
people. The officers stated that two individuals, the owner of the house, and his guest, were in their
cars in the driveway at the time. However, the officers did not see either of these individuals in the



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immediate vicinity where the drugs were found. Finally, the drugs were found in a plastic bag that
was located on top of debris. We find this evidence sufficient to support the conviction.

                                         CONCLUSION

       For the foregoing reasons, we conclude that the evidence was legally sufficient to support the
Appellant’s convictions for felony evading arrest and misdemeanor possession of cocaine.
Accordingly, the judgment of the Williamson County Circuit Court is affirmed.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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