         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 November 15, 2000 Session

          STATE OF TENNESSEE v. TIMOTHY TYRONE SANDERS

                  Direct Appeal from the Circuit Court for Bedford County
                          No. 14492    William Charles Lee, Judge



                   No. M2000-00603-CCA-R3-CD - Filed January 18, 2001


The Appellant, Timothy Tyrone Sanders, was convicted by a Bedford County jury of possession of
more than .5 grams of cocaine with intent to sell. The Appellant was sentenced to seventeen years
six months as a range II offender. On appeal, he raises the following issues: (1) whether the evidence
was sufficient to support the verdict; (2) whether the trial court erred by not instructing the jury on
the lesser-included offense of simple possession; and (3) whether the trial court improperly
sentenced the Appellant. After review, we conclude that the trial court erred in not instructing the
jury on simple possession. Accordingly, we reverse and remand for a new trial.

        Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and NORMA
MCGEE OGLE, JJ., joined.

John B. Nisbet, III, Cookeville, Tennessee, and Donna Orr Hargrove, Public Defender; Andrew
Jackson Dearing, III, Asst. Public Defender, Shelbyville, TN.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Marvin E.
Clements, Jr., Assistant Attorney General, William Michael McCown, District Attorney General,
and Michael D. Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

        The Appellant, Timothy Tyrone Sanders, was indicted by a Bedford County Grand Jury for
possession of more than .5 grams of cocaine with intent to sell, unlawful possession of a firearm,
driving while under the influence of an intoxicant, and violation of the open container law. A jury
trial was held on October 25, 1999. Prior to trial, the Appellant pled guilty to DUI and violation of
the open container law. Additionally, the trial court granted the Appellant’s motion for judgment
of acquittal on the unlawful possession of a weapon charge.1 After trial, the jury found the Appellant
guilty of possession of cocaine with intent to sell.

        On November 15, 1999, the trial court sentenced the Appellant as a range II, multiple
offender, to seventeen years six months for possession of cocaine with intent to sell. The Appellant
also received a concurrent sentence of eleven months twenty-nine days for driving while under the
influence of an intoxicant. On appeal, the Appellant raises the following issues for our review: (1)
whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in not
instructing the jury on the lesser-included offense of simple possession; and (3) whether the trial
court improperly sentenced the Appellant. After review, we find the trial court erred by not
instructing the jury on simple possession. As such, we reverse and remand for a new trial.


                                                    Background

        On October 30, 1998, James Wilkerson and Tony Collins, narcotics officers with the
Shelbyville Police Department, were assigned to patrol Bird Street due to “numerous complaints of
high drug activity in that area.” As the officers approached the intersection of Bird and Deery in
their unmarked S-10 Blazer, they observed a 1980 Pontiac Bonneville being driven erratically. The
officers began to follow the Pontiac vehicle. As the vehicle entered the driveway of a residence, the
officers pulled in behind the Pontiac to investigate. The driver of the Pontiac, later identified as the
Appellant, immediately got out of the vehicle and approached Detective Wilkerson. Detective
Wilkerson described the Appellant’s demeanor:

         He had a strong odor of an alcoholic beverage about his face. His eyes were very
         bloodshot and he was just shaking. He just had a real, real bad tremor all over. He
         was sweating just terribly bad . . . the way he was sweating, the tremors the body
         signals . . . I knew something was wrong but I didn’t know what.

Two other occupants remained in the car: Willie Webster, who was seated in the front passenger
side, and Makeva Sutton, Webster’s girlfriend, who was seated in the back seat.

         Sutton and Webster were removed from the vehicle. A loaded shotgun, described as a 12
gauge tactical pump Winchester, was located between the driver’s seat and the console. In the
driver’s seat, officers found a Crown Royal bag with two small plastic bags containing 3.5 grams of
crack cocaine with a street value of approximately $350.00. A search of the Appellant revealed
$95.00 in his left front shirt pocket. A search of Webster’s person produced $2,120.25 in small
denominations and a beeper. Webster also admitted that the shotgun was his and that he had recently
purchased it. Although Webster told officers at the scene that the Pontiac belonged to him, it was
later established that this vehicle, which was driven by the Appellant, was actually titled in Sutton’s


         1
           The trial court dismissed the unlawful possession of a weapo n charge at the close of the S tate’s case due to
a defect in the ind ictment.

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name. A search of Sutton’s person revealed only a pack of rolling papers in her right rear pocket.
Based upon this proof, the Appellant was convicted of felony possession of cocaine with intent to
sell.

                             I. Lesser-Included Offense Instruction

        The Appellant contends that the trial court erred in failing to instruct the jury on the offense
of simple possession as a lesser-included offense of possession with intent to sell. At the close of
the evidence, the Appellant specifically requested an instruction on the lesser offense of simple
possession, which was denied. It is important to note at this juncture, irrespective of any request for
a lesser-included jury instruction, that the statutory provisions of TENN. CODE ANN . § 40-18-110 (a),
require:

       It is the duty of all judges charging juries in cases of criminal prosecutions for any
       felony where two (2) or more grades or classes of offense may be included in the
       indictment, to charge the jury as to all of the law of each offense included in the
       indictment, without any request on the part of the defendant to do so.

Our supreme court, in the recent case of State v. Burns, 6 S.W.3d 453 (Tenn. 1999), established a
two-part test for determining whether an instruction for a lesser-included offense must be given.
First, each of the elements of the lesser offense must be a necessary element of the offense charged:

       An offense is a lesser-included offense if:

       (a) all of its statutory elements are included within the statutory elements of the
       offense charged; or

       (b) it fails to meet the definition in part (a) only in the respect that it contains a
       statutory element or elements establishing:
       (1) a different mental state indicating a lesser kind of culpability; and/or (2) a less
       serious harm or risk of harm to the same person, property or public interest; or

       (c) it consists of
       (1) facilitation of the offense charged . . . ; or
       (2) an attempt to commit the offense charged . . .; or
       (3) solicitation to commit the offense charged . . . .


Second, upon a finding that the requested lesser offense satisfies the “legal” prong of the Burns test,
the trial court must then perform the following two-step analysis within this “factual” prong:

       First, the trial court must determine whether any evidence exists that reasonable
       minds could accept as to the lesser-included offense. In making this determination,


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         the trial court must view the evidence liberally in the light most favorable to the
         existence of the lesser-included offense without making any judgments on the
         credibility of such evidence.

         Second, the trial court must determine if the evidence, viewed in this light, is legally
         sufficient to support a conviction for the lesser-included offense.

Burns, 6 S.W.3d at 469. With respect to the first or “legal” prong of the Burns test, it is undisputed
that a charge of misdemeanor possession is a lesser-included offense of felony possession with intent
to sell. This is true for two reasons: (1) It is so denominated by our legislature, TENN. CODE ANN .
§ 39-17-419; and (2) It meets the statutory elements test of Burns. We, in turn, proceed with our
examination of the second or factual prong.

        As previously noted, when deciding whether any evidence exists such that reasonable minds
could accept the lesser-included offense, the trial court “must view the evidence liberally in the light
most favorable to the existence of the lesser-included offense without making any judgments on the
credibility of such evidence.” Burns, 6 S.W.3d at 469. In order to support a conviction for
possession with intent to sell, the State must prove more than mere possession through evidence
which shows that the possessor intends to distribute rather than use the drugs. Circumstances
supporting evidence of simple possession may include, but are not limited to, situations where small
amounts of drugs are found (i.e. where the amount of the substance does not exceed the amount
needed for immediate personal use), whether the defendant is addicted to the drug found in his
possession, the resale value of the drug possessed, whether the purity level exceeded “street” purity
levels, the presence of drug paraphernalia, the absence of large amounts of cash or weapons, and
whether the substances were packaged in a manner commonly used in illegal street drug transactions.

        At trial, the State argued that the lesser-included offense of simple possession should not be
submitted to the jury because the amount of the drugs possessed were seven times greater than that
required for felony possession. In denying the requested instruction, the trial court relied primarily
upon the amount possessed, i.e. 3.5 grams.2 This reliance is misplaced. It is true that our criminal
code provides that a defendant who possesses less than .5 grams of cocaine with the intent to sell is
guilty of a class C felony and that a defendant who possesses .5 grams or more with the intent to sell
is guilty of a class B felony. TENN. CODE ANN . § 39-17-417(c)(1)(2). These assigned amounts,
however, apply only to the crime of felony possession with the intent to manufacture, deliver or sell
and not to simple possession. In response to the jury’s question in this case of where does the
“simple possession line end and the intent to sell line begin,” it is obvious that our legislature in its




         2
          The trial court noted : “Well, from the proof tha t is in the record, this is 3.5 grams, and the officer testified that
generally spe aking you ca n buy it in tenths of a g ram.”

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enactment of the crime of simple possession chose not to draw a line, leaving instead that
determination for the jury after consideration of all of the relevant facts attendant to the possession.3

         TENN. CODE ANN . § 39-17-419 provides in relevant part as follows:

         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.

This inference would have permitted the jury to find, based solely upon the Appellant’s possession
of 3.5 grams of cocaine, that he intended to sell the cocaine which he possessed.4 This does not
mean, however, that the jury is required to make this finding. In determining whether or not there
was possession with the intent to sell, the jury is required to consider all of the facts and
circumstances surrounding the drug transaction and arrest. Again, it is within the jury’s province
whether or not to draw the inference when, as in this case, a factual dispute as to intent is presented.
As recognized in Burns:

         A trial court’s failure to inform the jury of its option to find the defendant guilty of
         the lesser offense would impair the jury’s truth-ascertainment function. . . . To permit
         this would force the jury to make an ‘all or nothing’ choice between conviction of the
         crime charged or complete acquittal, thereby denying the jury the opportunity to
         decide whether the defendant is guilty of a lesser-included offense established by the
         evidence.

Burns, 6 S.W.3d at 471, 472 (citations omitted).

       In the present case, the proof, in the light most favorable to the existence of the lesser-
included offense, reveals that two small plastic bags containing crack cocaine were found in the


         3
             During jury deliberations, the jury posed the following question:

         Our question is if a person or persons had in possession 3.5 grams of crack cocaine would there be an
         automatic charge of intent to sell or at what point would there - I guess our question is when does the
         simple possession line end and the intent to sell line begin?

After a conferen ce with coun sel, the trial court f ound that a supplemental instruction of simple possession was not
warranted.

         4
           W e acknowledge that the amount possessed would have supported an affirmance of the conviction in a
sufficiency review had the jury been instructed on simple possession. We emphasize, however, the different standards
of review for sufficiency of the evidence and failure to instruct upon a lesser-included offense. In a sufficiency review
of the evidence, we are required to examine the facts in the light most favorable to the State, see State v. Har ris, 839
S.W.2 d 54, 75 (Tenn. 1 992), cert denied, 507 U.S. 954, 113 S. Ct. 1368 (1993), whereas in a lesser-included review,
the facts are examined in the light most favorable to the defendant, see Burns, 6 S.W.3d at 469.

                                                            -5-
vehicle the Appellant was driving. Neither the car, nor the gun located in the car, nor the beeper at
the scene belonged to the Appellant. Likewise, only $95 in cash was found on the Appellant while
$2,120.25 was found on passenger Webster. The State offered no testimony or evidence at trial that
the Appellant had sold or was attempting to sell the cocaine. Although the proof established that the
cocaine was packaged for distribution, the fact remains that only two small packages were involved.
Detective Wilkerson’s testimony was that the Appellant was “having tremors and sweating
feverishly,” which are recognized symptoms of substance abuse. In the light most favorable to the
existence of the lesser offense of simple possession, these facts would permit a rational jury to infer
that the Appellant acquired the cocaine from Webster and that possession was for personal use as
opposed to an intent to distribute. As such, the jury should have been given the opportunity to decide
between the lesser and greater offense. By this holding, we do not wish to imply that an instruction
on simple possession must be charged in every felony possession case. Clearly, an instruction on
simple possession is not required when a large quantity of a controlled substance is possessed or
where the relevant facts surrounding the possession are consistent only with an intent to sell or
deliver.


                                          CONCLUSION

        We conclude from our review of the evidence under the required analysis of Burns, that an
evidentiary dispute was presented with respect to the Appellant’s purpose for possession and that
such dispute requires resolution by the jury. Moreover, we conclude that under the second prong of
the Burns analysis, the evidence was legally sufficient to have supported a conviction for simple
possession.

         Finding the trial court erred in failing to instruct the jury on the lesser-included offense of
simple possession, we vacate the judgment of conviction and remand for a new trial. As such, we
find it unnecessary to address the remaining issues asserted on appeal.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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