        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2016

                STATE OF TENNESSEE v. ANTHONY MILLER

                  Appeal from the Criminal Court for Shelby County
                        No. 14-04043   Glenn Wright, Judge


               No. W2016-00402-CCA-R3-CD - Filed January 20, 2017


The Defendant, Anthony Miller, was indicted for possession with intent to sell 0.5 grams
or more of cocaine, a Class B felony; possession with intent to deliver 0.5 grams or more
of cocaine, a Class B felony; possession with intent to sell one-half ounce or more but
less than ten pounds of marijuana, a Class E felony; possession with intent to deliver one-
half ounce or more but less than ten pounds of marijuana, a Class E felony; and
possession of a firearm with intent to go armed during the commission of a dangerous
felony, a Class D felony. See Tenn. Code Ann. §§ 39-17-417, -1324(a). Prior to
submission to the jury, the amount for the cocaine possession charges was reduced to less
than 0.5 grams, a Class C felony. See Tenn. Code Ann. § 39-17-417(c)(2)(A).
Following a jury trial, the Defendant was convicted as charged of the marijuana and
unlawful firearm possession charges and of the lesser-included offense of simple
possession, a Class A misdemeanor, with respect to the cocaine possession charges. See
Tenn. Code Ann. § 39-17-418. The trial court sentenced the Defendant to eleven months
and twenty-nine days for the misdemeanor cocaine possession offenses, two years for the
felony marijuana possession offenses, and the mandatory minimum three years for the
unlawful firearm possession offense. The trial court ordered all of the sentences to be
served concurrently for a total effective sentence of three years. In this appeal as of right,
the Defendant contends (1) that the evidence was insufficient to sustain his conviction for
unlawful possession of a firearm; and (2) that the trial court erred in instructing the jury
on the applicable mental state for the unlawful possession of a firearm offense.
Following our review, we conclude that the evidence was sufficient to sustain the
Defendant‟s conviction for unlawful possession of a firearm. However, we also conclude
that the trial court committed plain error in instructing the jury with respect to the
unlawful firearm possession offense that the Defendant could be found guilty if he acted
“either intentionally, knowingly, or recklessly.” As such, we remand this case for a new
trial on the unlawful possession of a firearm charge. Additionally, we hold that the trial
court failed to merge the Defendant‟s convictions for simple possession of cocaine into
one conviction and his convictions for felony possession of marijuana into one
conviction. Accordingly, we remand this case to the trial court for merger of those
convictions and entry of corrected judgment forms reflecting said merger.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                    in Part; Reversed in Part; Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Larry E. Fitzgerald, Memphis, Tennessee, for the appellant, Anthony Miller.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Charles Summers III, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             FACTUAL BACKGROUND

       On November 22, 2014, Memphis Police Department officers executed a search
warrant for a residence on Haywood Avenue. Shortly before the search, one of the
officers witnessed the Defendant enter his car, which was parked in the home‟s driveway,
and drive away. The Defendant was quickly pulled over for running a stop sign. The
officer who stopped the Defendant smelled a strong odor of marijuana coming from the
Defendant‟s car. The Defendant admitted to having marijuana and produced a small bag
containing marijuana from his right pocket.

       When informed about the search warrant, the Defendant gave the officers a key to
the house. The officers and the Defendant returned to the house where the officers used
the key to enter the house. There was no one else in the house at the time it was
searched. Outside the house, the officers found video surveillance cameras. Inside the
house, a surveillance monitor was found. Testimony was presented at trial that it was
“very common” for drug dealers to utilize video surveillance systems. Additionally, a
box of .380 caliber ammunition was found sitting out on a table in another bedroom.

       In one of the back bedrooms, the bed had a large headboard with built-in cabinets.
Inside the headboard‟s cabinets, the officers found a “large red bag.” The red bag
contained a large bag of what appeared to be marijuana and two smaller bags of the same.
On the same shelf as the red bag was a large digital scale and a box of sandwich bags.
Police officers explained to the jury that sandwich bags were often used to package drugs
for sale. Also inside the cabinet, officers found a jar that appeared to contain more

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marijuana, a small plastic bag containing white powder, and what appeared to be a
marijuana grinder.

        Next to the bed was a dresser. A smaller digital scale was found on top of the
dresser. Inside “the top left drawer,” the officers found $165 in small denominations. It
was explained at trial that keeping a large amount of small denominations was typical “to
[the] drug trade.” There was a small closet at the foot of the bed. On a top shelf of the
closet, officers found a shoebox containing two handguns: a Lorcin .380 caliber and a
Bryco Jennings .22 caliber. Both handguns were loaded. The handguns were not tested
for fingerprints, and the MPD officers testifying at trial stated that they did not know who
owned the guns.

        The Defendant‟s girlfriend also lived at the house, and the utilities for the house
were registered in her name. However, the Defendant had the Haywood Avenue address
listed on his driver‟s license. Additionally, the officer found inside the house the
Defendant‟s work badge, paychecks, a debit card in his name, an ADT Security Service
bill for the house addressed to the Defendant, and other miscellaneous mail addressed to
the Defendant.

      Subsequent forensic testing revealed the white powder to be .47 grams of cocaine
and the green leafy substance found inside the house to be, in total, 395.22 grams of
marijuana.

        The Defendant testified at trial1 that the house belonged to his girlfriend and that
he periodically stayed there. However, the Defendant admitted that the marijuana
belonged to him and that he sold some of the marijuana. The Defendant also admitted
that the cocaine belonged to him but claimed that it was only for his personal use.

        The Defendant denied that the handguns belonged to him. The Defendant claimed
that he had never seen the handguns and that he did not know they were in the bedroom.
The Defendant also claimed that he had no idea why there was a box of ammunition
sitting out in one of the other rooms. The Defendant asserted that the handguns belonged
to his girlfriend because they were found in “female shoeboxes.” The Defendant also
noted that it was illegal for him to possess a handgun because he was a convicted felon.

                                              ANALYSIS

1
  Prior to the Defendant‟s testimony, it appears that the trial court conducted a hearing pursuant to
Momon v. State, 18 S.W.3d 152 (Tenn. 1999), which outlined a prophylactic procedure designed to
insure that a defendant‟s waiver of his right to testify is voluntary, knowing, and intelligent. See Mobley
v. State, 397 S.W.3d 70, 90-91 (Tenn. 2013). However, said procedure was not required prior to the
Defendant‟s testimony as our supreme court has “respectfully decline[d] to extend the reach of the
prophylactic procedure in Momon to instances in which a criminal defendant elects to testify.” Id. at 90.
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                               I. Sufficiency of the Evidence

       The Defendant contends that the evidence was insufficient to sustain his
conviction for possession of a firearm with intent to go armed during the commission of a
dangerous felony. The Defendant argues that there was no evidence connecting him to
the handguns, and he denied knowing they were in the closet. The State responds that the
evidence was sufficient to sustain his conviction.

       An appellate court‟s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the 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 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‟s verdict.” Bland, 958 S.W.2d at 659; State v.
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State‟s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant‟s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

       “It is an offense to possess a firearm with the intent to go armed during the
commission of . . . a dangerous felony.” Tenn. Code Ann. § 39-17-1324(a). Possession
of a controlled substance with the intent to sell or deliver is one of the applicable listed
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dangerous felonies. Tenn. Code Ann. § 39-17-1324(i)(1)(L). As pertinent to our review,
marijuana is a Schedule VI controlled substance. Tenn. Code Ann. § 39-17-415(a)(1).

       “Tennessee courts recognize that „possession‟ may be either actual or
constructive.” State v. Ronnie Paul Trusty, No. W2012-02445-CCA-R3-CD, 2013 WL
3488150, at *4 (Tenn. Crim. App. July 11, 2013) (quoting State v. Shaw, 37 S.W.3d 900,
903 (Tenn. 2001)) (internal quotation marks omitted). Constructive possession exists
when a person has “the power and intention at a given time to exercise dominion and
control over [the item] either directly or through others.” Id. (quoting Shaw, 37 S.W.3d
at 903). Here, it was clear that the bedroom the handguns were found in belonged to the
Defendant and that he had the ability to “exercise dominion and control” over the
handguns.

      Additionally, the fact that the handguns were loaded and “within the immediate
proximity of the contraband established the [D]efendant‟s intent to go armed and
demonstrated a nexus between the firearm[s] and the drugs.” Trusty, 2013 WL 3488150,
at *4. Accordingly, we conclude that the evidence was sufficient to sustain the
Defendant‟s conviction for possession of a firearm with intent to go armed during the
commission of a dangerous felony.

                                    II. Jury Instruction

       The Defendant also contends that the trial court erred in instructing the jury on the
applicable mental state for the unlawful possession of a firearm offense. The Defendant
argues that the applicable statute specified that he had to act intentionally to be convicted
of the offense but that the trial court instructed the jury that he could be convicted if he
acted “either intentionally, knowingly, or recklessly” thereby lowering the State‟s burden
of proof. The State responds that the instruction was not erroneous and that even if it
was, the error would be harmless.

       The trial court instructed the jury on the offense of unlawful possession of a
firearm as follows:

              Any person who possesses a firearm with the intent to go armed
       during the commission of or attempt to commit a dangerous offense is
       guilty of a crime.
              For you to find the defendant guilty of this offense, the State must
       have proven beyond a reasonable doubt the existence of the following
       essential elements:
              (1) that the defendant possessed a firearm;
                                            and

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              (2) that the possession was with the intent to go armed during the
                  commission of or attempt to commit the sell or delivery of a
                  controlled substance, to-wit: Marijuana over one-half ounce
                  (14.175 grams) or more;
                                          and
              (3) that the defendant acted either intentionally, knowingly, or
                  recklessly.

       While waiver was not raised by either of the parties, the Defendant has waived this
issue by failing to raise it in his motion for new trial. See Tenn. R. App. P. 3(e) (stating
that “no issue presented for review shall be predicated upon error in the . . . jury
instructions granted or refused . . . unless the same was specifically stated in a motion for
a new trial; otherwise such issues will be treated as waived”). As such, we are limited to
reviewing this issue for plain error.

        The doctrine of plain error applies when all five of the following factors have
been established:
       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused must not have waived the issue for tactical reasons; and
       (e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.

       Here, the record clearly established what occurred in the trial court. The
applicable statute contains only one possible mental state, that the Defendant possessed
the firearms intentionally. Tenn. Code Ann. § 39-17-1324(a); see also State v. Tasha
Briggs, No. W2014-01214-CCA-R3-CD, 2015 WL 5813664, at * 3-5 (Tenn. Crim. App.
Oct. 6, 2015) (holding that the trial court erred by instructing the jury that the defendant
could be found guilty of possession of a firearm with intent to go armed during the
commission of a dangerous felony “if the jury found that she acted knowingly or
recklessly”). Therefore, a clear and unequivocal rule of law has been breached.
Additionally, we do not believe that the Defendant waived this issue for tactical reasons.

       Finally, we conclude that a substantial right of the Defendant was adversely
affected by the error and that consideration of the error is necessary to do substantial


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justice.2 See Briggs, 2015 WL 5813664, at *5 (holding that error in instructing the jury
was not harmless because it “lessened the State‟s burden of proof”). This is especially
true in light of the fact that the jury accredited the Defendant‟s testimony that the cocaine
was for his own personal use coupled with the Defendant‟s testimony that the handguns
belonged to his girlfriend and that he was unaware of their presence in the house.
Accordingly, we conclude that the trial court committed plain error in instructing the jury
that it could convict the Defendant if he acted knowingly or recklessly with respect to the
unlawful possession of the firearms. We remand this case to the trial court for a new trial
on the unlawful possession of a firearm charge.3

                                      III. Merger of Convictions

       While not raised by either of the parties, we note that the trial court erred by
failing to merge the Defendant‟s convictions for simple possession of cocaine and his
convictions for felony possession of marijuana. Here, the Defendant‟s convictions for
simple possession of cocaine relied upon the same proof. Likewise, double jeopardy bars
convictions for possession with intent to sell and possession with intent to deliver when
the convictions are supported by the same proof. State v. Johnson, 765 S.W.2d 780, 782
(Tenn. Crim. App. 1988). The trial court‟s failure to merge the convictions constituted
plain error. See State v. Edgar Allgood, No. W2008-00870-CCA-R3-CD, 2010 WL
455000, at *8 (Tenn. Crim. App. Feb. 10, 2010).

      Accordingly, we remand this case to the trial court for merger of the Defendant‟s
two convictions for simple possession of cocaine into one conviction and merger of the

2
  Relying on State v. Clark, 452 S.W.3d 268, 298 (Tenn. 2014), the State argues that the inclusion of the
knowing and reckless mental states in the jury instruction was harmless error because “the word
„intentionally‟ occurs in close proximity to the conduct at issue, a reasonable jury would interpret this to
mean that the more specific mens rea of „intentionally‟ has to apply to that [conduct].” However, Clark
involved the offense of aggravated sexual battery where a specific mens rea applied to one element of the
offense, “intentional touching,” and “intentionally, knowingly, or recklessly” “may apply to the element
of the age of the victim.” Id. Unlike Clark, the “mens rea element for the possession offense [at issue
here] contains only one mental state.” Briggs, 2015 WL 5813664, at *4. Furthermore, the supreme court
in Clark stated that it “need not determine whether [the] instruction was erroneous because any error . . .
would be harmless beyond a reasonable doubt” due to the fact that “neither the State nor [the defendant]
presented evidence that his behavior might have been done recklessly or knowingly.” Clark, 452 S.W.3d
at 298. Here, the Defendant‟s testimony suggested that his possession of the gun might have been done
recklessly or knowingly.
3
  We also note that the trial court erred in ordering the Defendant‟s sentence for unlawful possession of a
firearm to be served concurrently with his sentence for the underlying felony. See Tenn. Code Ann. § 39-
17-1324(e)(1) (mandating consecutive sentencing for this offense and any sentence imposed “for
conviction of the underlying felony”). If the Defendant is convicted at a new trial, the trial court is
required to order his sentence to be served consecutively to his sentence for the underlying felony of
possession of marijuana with the intent to sell.
                                                    -7-
Defendant‟s conviction for possession with the intent to deliver one-half ounce or more
but less than ten pounds of marijuana into his conviction for possession with intent to sell
one-half ounce or more but less than ten pounds of marijuana. The trial court shall enter
corrected judgment forms reflecting said merger.

                                     CONCLUSION

       Upon consideration of the foregoing and the record as a whole, we conclude that
there is reversible error with respect to the Defendant‟s conviction for unlawful
possession of a firearm and remand the case to the trial court for a new trial on that
charge. Additionally, the trial court‟s failure to merge the drug convictions constituted
plain error. The case is remanded to the trial court for merger of those convictions and
entry of corrected judgment forms reflecting said merger.



                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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