         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE            FILED
                            APRIL SESSION, 1997           August 15, 1997

                                                      Cecil W. Crowson
STATE OF TENNESSEE,              )                  Appellate Court Clerk
                                     C.C.A. NO. 01C01-9605-CC-00216
                                 )
      Appellee,                  )
                                 )
                                 )   RUTHERFORD COUNTY
VS.                              )
                                 )   HON. JAMES K. CLAYTON, JR.
LORENE E. WEAKLEY, and           )   JUDGE
ROBERT APOLLO                    )
CANTRELL                         )
                                 )
      Appellants.                )   (Felony Drugs)


               ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF RUTHERFORD COUNTY


FOR THE APPELLANT:                   FOR THE APPELLEE:

GERALD L. MELTON                     JOHN KNOX W ALKUP
District Public Defender             Attorney General and Reporter

RUSSELL N. PERKINS                   Peter M. Coughlan
Assistant Public Defender            Assistant Attorney General
201 W est Main Street                450 James Robertson Parkway
Murfreesboro, TN 37130               Nashville, TN 37243

JOHN G. MITCHELLL, JR.               W ILLIAM W HITESELL
Third Floor, NationsBank Bldg.       District Attorney General
120 E. Main Street                   Third Floor, Judicial Building
Murfreesboro, TN 37133-1336          Murfreesboro, TN 37130



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                          OPINION

          This is an appeal as of right pursuant to Rule 3, Tennessee Rules of

Appellate Procedure. The Defendants, Lorene Evette W eakley and Robert

Apollo Cantrell, were convicted by a Rutherford County jury of possession of over

26 grams of cocaine with intent to sell or deliver and simple possession of

marijuana.1 Defendant Cantrell was convicted of possession of drug

paraphernalia, which was dismissed after a motion for new trial. Both Defendant

W eakley and Defendant Cantrell were sentenced to eight years in the

Department of Correction and each was fined two thousand dollars ($2,000) for

the cocaine convictions. They were each sentenced to concurrent terms of 11

months and 29 days with two hundred fifty dollar ($250) fines for the marijuana

convictions.         In this appeal, Defendant Cantrell presents one issue, that the

evidence was insufficient to support a verdict of guilt. Defendant Weakley argues

one issue, that because she was convicted based on criminal responsibility for

the conduct of another, she is entitled by statute to be considered for probation.

W e affirm the judgment of the trial court.



          Mem bers of the Rutherford County Sheriff’s Department received

information from a confidential informant that illegal drug sales were being

conducted at unit E-15 at the Colony Square Apartments in Smyrna, Tennessee.

Officers surveilled the apartment and observed a number of persons at different

times go into the apartment and then leave within a few minutes. A search

warrant was issued for the apartment, which was executed on October 25, 1994.



1
    Tenn . Code A nn. §§ 39-17-417(i); 39-17-418(a).

                                                       -2-
The officers knocked on the door, announced their presence, and used a

battering ram to open the door. Once inside, the officers ordered the occupants

to lie on the floor. The officers observed the Defendant, Apollo Cantrell, and

Marqulitia Odom in the living room. They did not appear to comply with the order

and thus were adm inistered pepper spray. Tony W oods and Shalonda Odom

were also in the living room and the Defendant, Lorene W eakley, was near the

kitchen. Several young children were present in a bedroom.



      The officers discovered in plain view a plastic bag containing 9.3 grams of

crack cocaine, as well as a vial on an end table that contained 18.5 grams of

crack cocaine. A small amount of marijuana was found on top of the television

set. A search of the apartment yielded one loaded .38 pistol from a shelf in a

bedroom closet and baking soda found in the kitchen. Cash in the amount of six

hundred sixty dollars ($660) was seized from Defendant Cantrell and five

hundred eleven dollars ($511) from Tony W oods. Defendant Cantrell later stated

that he was unem ployed.      Defendant Weakley rented the apartment and

Defendant Cantrell claimed the apartm ent as his home address. Cantrell’s

clothes were seen in the apartment. None of the occupants appeared overtly

under the influence of any substance and none claimed ownership of the drugs.

All of the adults were charged with possession with intent to sell.



      Marqulitia and Shalonda Odom testified at the trial for the State, at which

time their charges were dismissed. Both testified that frequent visitors would

come to the apartment where they would meet with Defendant Cantrell or Tony

W oods in a back bedroom. After a few minutes, the visitors would leave. They

both testified that they never observed a sale of cocaine.

                                       -3-
      As his sole issue on this appeal, the Defendant Apollo Cantrell asserts that

the evidence was insufficient to support a verdict of guilt for possession of

cocaine with intent to sell or deliver. When an accused challenges the sufficiency

of the convicting evidence, the standard is whether, after reviewing 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). Questions concerning the credibility of the

witnesses, the weight and value to be given the evidence, as well as all factual

issues raised by the evidence, are resolved by the trier of fact, not this court.

State v. Pappas, 754 S.W .2d 620, 623 (Tenn. Crim. App. 1987). Nor may this

court reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W .2d 832,

835 (Tenn. 1978).



      A jury verdict approved by the trial judge accredits the State’s witnesses

and resolves all conflicts in favor of the State. State v. Grace, 493 S.W .2d 474,

476 (Tenn. 1973). On appeal, the State is entitled to the strongest legitimate

view of the evidence and all inferences therefrom. Cabbage, 571 S.W .2d at 835.

Because a verdict of guilt removes the presumption of innocence and replaces

it with a presumption of guilt, the accused has the burden in this court of

illustrating why the evidence is insufficient to support the verdict returned by the

trier of fact. State v. Tuggle, 639 S.W .2d 913, 914 (Tenn. 1982); Grace, 493

S.W.2d at 476.



      The Defendant emphasizes that the testimony of the Odoms only suggests

that drug sales took place and that they did not witness any actual selling of

cocaine. Although the evidence in this case is primarily circumstantial, the jury

                                         -4-
could have found the elements of the offense beyond a reasonable doubt. To

convict the Defendant, the State was required to prove the elements of (1)

knowingly (2) possessing cocaine (3) with intent to sell. Tenn. Code Ann. §

39-17-417(a)(4). Possession of a controlled substance can be based on either

actual or constructive possession. State v. Brown, 915 S.W .2d 3, 7 (Tenn. Crim.

App. 1995); State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991).

Constructive possession may be proved by demonstrating that a defendant has

the power and intention to exercise dominion and control over the controlled

substance either directly or through others. Brown, 915 S.W .2d at 7; Brown, 823

S.W.2d at 579. Constructive possession is the ability to reduce an object to

actual possession. Brown, 915 S.W .2d at 7; Brown, 823 S.W .2d at 579.



         Here, Defendant Cantrell was observed making brief contacts with a

number of visitors in a back bedroom. Cocaine was found in plain view in the

living room of the apartment he claimed as his home address. He was seen

taking a bath there and changing his clothes. The Defendant’s personal items

were observed in the apartment. These factors are adequate to show that the

Defendant was in control of the property such that even if the drugs were not

found on his person, he exercised a knowing possession of the drugs. Cf. State

v. Transou, 928 S.W .2d 949, 956 (Tenn. Crim. App. 1996). Furthermore, his

frequent contacts and possession of six hundred sixty dollars ($660) when he

was unemployed are sufficient to show an intent to sell. This issue is without

merit.



         Defendant W eakley raises one issue in this appeal, that the trial court erred

in determining that she was not eligible for probation. The Defendant was

                                           -5-
convicted of possession with intent to sell or deliver over 26 grams of cocaine.

Tenn. Code Ann. § 39-17-417(i). She was sentenced to eight years incarceration

and the trial court denied probation. A defendant is eligible for probation “if the

sentence actually imposed . . . is eight (8) years or less; provided, that a

defendant shall not be eligible for probation under the provisions of this chapter

if he is convicted of a violation of § 39-17-417(b) or (i).” Tenn. Code Ann. § 40-

35-303 (a). The trial judge thus ruled that the Defendant was not eligible for

probation.



      The Defendant claims that, because she was convicted pursuant to the

provisions of criminal responsibility for the conduct of another under Tennessee

Code Annotated section 39-11-402(2), she should be eligible for probation and

she cites State v. Tony Click, C.C.A. No. 162, Sevier County (Tenn. Crim. App.,

Knoxville, Sept. 26, 1991). One is crim inally responsible as a party to an offense

“if the offense is committed by the person’s own conduct, by the conduct of

another for which the person is crim inally responsible, or by both.” Tenn. Code

Ann. § 39-11-401. A defendant may be convicted for the conduct of the other

based on three theories, of which the relevant section reads:


            (2) Acting with intent to promote or assist the commission of the
      offense, or to benefit in the proceeds or results of the offense, the
      person solicits, directs, aids, or attempts to aid another person to
      com mit the offense;


Tenn. Code Ann. § 39-11-402; see also State v. Stephenson 878 S.W.2d 530,

557, (Tenn. 1994); State v. Williams, 920 S.W.2d 247, 257-58 (Tenn. Crim. App.

1995); State v. Gennoe, 851 S.W .2d 833, 836 (Tenn. Crim. App. 1992); State v.

Brown, 756 S.W.2d 700, 703 (Tenn. Crim. App. 1988).


                                        -6-
      W e note that criminal responsibility for the conduct of another is not a

statutory offense, but rather a legal theory of criminal liability by which a

defendant may be convicted for an offense when there are multiple actors

involved. See Tenn. Code Ann. § 39-11-402; State v. James R. Lemacks, C.C.A.

No. 01C01-9605-CC-00227, Humphreys County (Tenn. Crim. App., June 26,

1997). The jury in the case sub judice was instructed on criminal responsibility

in conformance with the Tennessee Pattern Jury Instructions, although the trial

judge noted that it was a lesser included offense. It was erroneous to refer to

criminal responsibility as a lesser included offense because it is not an offense,

but a legal theory of criminal liability. The jury announced its verdict as finding

the Defendant guilty of criminal responsibility for the conduct of another pursuant

to section 39-11-402. However, the trial court properly entered judgment for

possession with intent to sell or deliver under 39-17-417(i). W hen a defendant is

convicted under criminal responsibility for the conduct of another, she is guilty as

a party to the offense and is convicted for the substantive offense as if she were

the principal. See State v. Gail Haneline Barnes, C.C.A. No. 01C01-9508-CC-

00274, Montgomery County (Tenn. Crim. App., Nashville, Feb. 28, 1997).

Therefore, the trial court did not err in determining that the Defendant was not

eligible for probation.



      Accordingly, we affirm the judgments of the trial court.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE


                                        -7-
CONCUR:



___________________________________
GARY R. WADE, JUDGE


___________________________________
CURWOOD W ITT, JUDGE




                              -8-
