            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                            FEBRUARY 1998 SESSION
                                                             April 7, 1998

                                                       Cecil W. Crowson
STATE OF TENNESSEE,             *                     Appellate Court Clerk
                                     C.C.A. # 01C01-9705-CC-00182

             Appellee,          *    HICKMAN COUNTY

VS.                             *    Hon. H. Denmark Bell, Judge

JASON JAMES MATTHEWS,           *    (Simple Possession of a Schedule VI Drug)

             Appellant.         *




For Appellant:                       For Appellee:

Vanessa P. Bryan                     John Knox Walkup
Assistant Public Defender            Attorney General and Reporter
407-C Main Street
P.O. Box 68                          Janis L. Turner
Franklin, TN 37065-0068              Counsel for the State
                                     Cordell Hull Building, Second Floor
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493

                                     Ronald L. Davis
                                     and
                                     Mark Puryear
                                     Assistant District Attorneys General
                                     G-6 Courthouse, P.O. Box 937
                                     Franklin, TN 37065-0937




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, JUDGE
                                      OPINION

             The defendant, Jason James Matthews, was charged with possession

of a controlled substance for resale. The jury found the defendant guilty of simple

possession of a Schedule VI controlled substance. The trial court imposed a

sentence of eleven months and twenty-nine days in the workhouse, suspended after

the service of thirty days in the county jail. The defendant was fined $1,000.00.



             In this appeal of right, the defendant claims that the evidence was

insufficient, that there was no proof of constructive possession, and that there was

no corroboration of accomplice testimony.



             We affirm the judgment of the trial court.



             On July 22, 1994, Officers Gary Luther and Joey Kimble, agents for

the Twenty-first Judicial Drug Task Force, stopped a restored 1965 Chevrolet Bel-

Air operated by Nathan Baiocco at a roadblock. The defendant was a passenger.

Officer Luther commented upon the excellent condition of the automobile and made

casual conversation before inquiring whether either of the men possessed drugs.



             Officer Luther, who had worked on more than a thousand illegal drug

cases, observed that both of the men were startled by the question. While denying

having drugs, "They looked at one another, their mouths fell open, and then they

looked back at us." The officers then asked for permission to search the vehicle

and Baiocco consented. Officer Luther searched Baiocco and found nothing except

a Crown Royal bag, which is often used by those who carry drugs to "keep ... dope,"

inside his pants. The bag was empty. The officers observed a marijuana seed in

the ashtray of the vehicle. A double-edged knife, a paper drawing of a mushroom,


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and a glass pipe containing marijuana residue were found in the glove compartment.



              When Officer Luther asked Baiocco to unlock the trunk, Baiocco

refused permission. The defendant then remarked, "Make them waste their time,

make them get a warrant." When asked, Baiocco refused to give Officer Luther the

keys. The defendant then directed Baiocco, "Make them get a warrant. Don't open

the trunk." Luther testified that Baiocco appeared to be turning to the defendant for

an answer to each of these questions. At that point, Officer Luther contacted an

assistant district attorney who advised him to continue the search of the vehicle

without a warrant. Upon inspection, Officer Luther found a neatly folded towel in

which there was a ziplock bag containing three separate bags of marijuana. Each of

the bags contained twenty-nine grams of marijuana. There are twenty-eight grams

to an ounce, a common increment of sale. Officer Luther testified that an ounce of

marijuana would produce about fifty joints.



              Baiocco, a friend to the defendant for three or four years, agreed to

testify for the state in exchange for a plea of guilt and judicial diversion. See Tenn.

Code Ann. § 40-35-313. He claimed that when he picked up the defendant at about

8:30 P.M. on the night of their arrest, the defendant was in possession of all of the

marijuana later confiscated by the officers; the defendant then placed the drug in the

trunk of the vehicle. Baiocco testified that the two intended to smoke the marijuana

as they visited various "college parties" in West Nashville during the course of the

evening. Baiocco asserted that the knife belonged to his brother but denied any

knowledge of the glass pipe or marijuana seed in the ashtray.



              On cross-examination by the defense, Baiocco acknowledged that he

had applied for and been denied pretrial diversion. He admitted that during the


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entire proceedings that had taken place in his case, he had never claimed that the

marijuana belonged to the defendant.



               Baiocco's parents, Larry and Cynthia Baiocco, testified that they had

overheard the defendant acknowledge in the presence of an attorney that the

marijuana was his. A T.B.I. forensic chemist, Glenn Everett, confirmed that the

contents of each of the three bags tested positive for marijuana.



               The defense called only one witness. Holly Matthews, the defendant's

wife, testified that Baiocco had acknowledged to her two months before the trial that

"he wanted to rat on someone because he didn't want to get in trouble and that he

didn't want a felony ...."



               The defendant argues that the evidence was insufficient to support the

conviction. In particular, he contends that the proof did not establish that he

constructively possessed the marijuana and that the testimony of his accomplice,

Baiocco, was not adequately corroborated.



               On appeal, the state is entitled to the strongest legitimate view of the

evidence and all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the evidence

are matters entrusted exclusively to the jury as the triers of fact. Byrge v. State, 575

S.W.2d 292, 295 (Tenn. Crim. App. 1978). A conviction may be set aside only when

the reviewing court finds that the evidence is insufficient to support the finding by the

trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P. 13(e). A guilty

verdict, approved by the trial judge, accredits the testimony of the witnesses for the


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state. State v. Hatchett, 560 S.W.2d 627, 630 (Tenn. 1978).



              It is an offense for a person to "knowingly ... possess ... a controlled

substance." Tenn. Code Ann. § 39-17-418(a). Marijuana is a controlled substance.

Tenn. Code Ann. § 39-17-415(1). "'Knowing' refers to a person who acts knowingly

with respect to the conduct or to circumstances ... when the person is aware of the

conduct or that circumstances exist...." Tenn. Code Ann. § 39-11-302(b).



              Certainly, the mere presence of a person in an area where drugs are

discovered is not enough, standing alone, to support a conviction of possession.

State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996). Neither does

mere association with a person who is in control of the illegal drug support such a

conviction. Id. Yet, one may constructively possess illegal drugs. Id. at 955. In

order to constructively possess, one must have "dominion and control over an

object, either directly or through others." Id. at 956; State v. Williams, 623 S.W.2d

121, 125 (Tenn. Crim. App. 1981). "'In essence, constructive possession is the

ability to reduce an object to actual possession.'" Id. (quoting United State v.

Martinez, 588 F.2d 495 (5th Cir. 1979)).



              A defendant cannot be convicted upon the uncorroborated testimony

of an accomplice. Prince v. State, 529 S.W.2d 729, 732 (Tenn. Crim. App. 1975).

Some testimony, independent of that of the accomplice, must fairly and legitimately

tend to connect the defendant with the commission of the crime charged. Marshall

v. State, 497 S.W.2d 761, 765 (Tenn. Crim. App. 1973). The issue is one for the

jury. Id. Slight circumstances may be sufficient to furnish the necessary

corroboration. Garton v. State, 332 S.W.2d 169, 175 (Tenn. 1960).




                                           5
              Baiocco and the defendant were the only occupants of an automobile

in which drug paraphernalia and a marijuana seed and residue were found. Their

trunk contained over three ounces of marijuana. According to the investigative

officer, Baiocco looked to the defendant to answer many of the questions regarding

the search of the vehicle. The defendant objected to access to the trunk and

demanded that the officers acquire a search warrant. Thus the element of

possession was established, at least constructive possession. Baiocco identified

the defendant as the owner of the marijuana who placed it in the trunk. Baiocco's

parents overheard the defendant admit to ownership and so testified. That is

sufficiently corroborative. In our view, the jury acted within its prerogative in

determining the guilt of the defendant.



              Accordingly, the judgment is affirmed.



                                           _________________________________
                                           Gary R. Wade, Judge

CONCUR:



_____________________________
William M. Barker, Judge



_____________________________
Curwood Witt, Judge




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