         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 6, 2009

            STATE OF TENNESSEE v. DELAWRENCE WILLIAMS

                    Direct Appeal from the Circuit Court for Dyer County
                           No. C03-405    R. Lee Moore, Jr., Judge



                 No. W2009-00748-CCA-R3-CD - Filed November 10, 2009


The defendant, Delawrence Williams, was convicted by a Dyer County jury of possession of .5
grams or more of cocaine with the intent to deliver or sell, a Class B felony, and assault, a Class A
misdemeanor. He was subsequently sentenced by the trial court to fourteen years for the drug
possession offense and eleven months, twenty-nine days for the assault offense, with the sentences
to be served concurrently to each other and concurrently to his sentence in a federal case but
consecutively to his sentence in another Dyer County case. The sole issue the defendant raises in
this appeal is whether the evidence was sufficient to sustain the convictions. Following our review,
we affirm the judgments of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which D. KELLY THOMAS, JR. and
CAMILLE R. MCMULLEN , JJ., joined.

Charles M. Agee, Jr., Dyersburg, Tennessee, for the appellant, Delawrence Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
and C. Phillip Bivens, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                               FACTS

         On December 8, 2003, a Dyer County Grand Jury indicted the defendant for the September
28, 2003, aggravated assault of Vivial Taylor and the possession of .5 grams or more of cocaine with
the intent to deliver or sell. The defendant stipulated at his October 2007 trial that the residence and
the bedroom in which the contraband was found was his. The State’s first witness, Vivial Taylor,
testified that on September 28, 2003, she and the defendant, who were in a relationship, got into an
argument at his house trailer, located at 440 Bean Mill Road in Dyer County. As she was leaving,
she tried to run him over with her car and then struck his car with her vehicle. She was in the
process of striking his car again when the defendant hit her windshield with a swing blade. Taylor
testified that she was frightened of the defendant during the entire episode and that both she and the
defendant were arrested as a result of the incident.

        On cross-examination, Taylor testified that the argument began when the defendant told her
in a telephone conversation that he had given money to an ex-girlfriend. She said that when the
defendant came home he asked her to leave, but she refused. She stated that their verbal altercation
escalated into a physical fight when her cell phone rang and the defendant attempted to grab it from
her. As she and the defendant wrestled over the phone, the defendant threw her into the kitchen
cabinets and she attempted to cut him with a knife. The defendant then pushed her outside the house
and onto the porch. At that point, she jumped into her car and tried to run him over, but “he kept
hopping out [of] the way, so [she] went down beside of his Cadillac with” her Honda Accord.

        Taylor testified that she had dated the defendant for approximately two or three years prior
to the incident and had regularly spent four or five nights a week with him at his home. She
acknowledged that three other men were living with the defendant at that time: “Melvin Cates,”
“Keith,” and “Powell.”

        Sergeant Kenny Gibbons of the Dyer County Sheriff’s Department testified that he was
dispatched to the defendant’s residence on September 28, 2003, in response to an unknown
disturbance call. The defendant and Taylor were present when he arrived and, after investigating,
he arrested both of them on charges of aggravated assault. During the course of his investigation,
he went into the home and saw a cigar containing suspected marijuana and a napkin with white
residue and a razor blade beside it. As a result, he contacted Investigator McCreight, who obtained
a search warrant for the residence. Sergeant Gibbons testified that two other individuals were inside
the residence at the time he entered: Marvin Cates and Constance Belk.

        Officer Lynn Waller of the Dyersburg Police Department, who was formerly employed with
the Dyer County Sheriff’s Department and participated in the search of the defendant’s residence,
identified and described photographs of various items located during the search, including: a
marijuana blunt cigar, a paper towel with what appeared to be crack cocaine, and a razor blade with
white residue, all of which were found on the dresser in the defendant’s bedroom; five clear plastic
bags with approximately one ounce of powder cocaine in each, which were found in a brown paper
bag in the pocket of a jacket hanging in the closet of the defendant’s bedroom; and several bundles
of cash, which were found in various locations in the same closet.

        Officer Waller, who stated that he had handled between 50 and 100 drug cases during his
nine years in law enforcement, estimated that the value of the powder cocaine found at the residence
was between seven and eight thousand dollars. He recalled that there were two other individuals in
the residence at the time he entered: a male named Cates and a female named Belk. On cross-
examination, he stated that Cates informed him that he had been staying for a few days in the front
room and that the defendant lived in the back part of the trailer. To Officer Waller’s knowledge, no
one else lived in the trailer with the defendant. He acknowledged, however, that in the year
preceding the defendant’s trial, two men named “Keith” and “Powell” had been arrested and charged
with drug offenses “operating out of” the same trailer.


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        Chad Barron, formerly employed as a patrol sergeant and dog handler with the Dyer County
Sheriff’s Department, testified that on September 28, 2003, he and his drug dog, “Mako,”
participated in the search of the defendant’s residence. He said that Mako led him to the defendant’s
bedroom and to the closet in which the powder cocaine and bundles of cash were discovered but
exhibited no reaction to any other rooms in the residence.

        Investigator Terry McCreight of the Dyer County Sheriff’s Department identified the
inventory of items found at the residence and described where each was found. According to his
testimony, all of the items, with the exception of the ones previously described that were found on
the dresser, were located in the closet of the defendant’s bedroom. These included: $2135 in cash
found on a top shelf; the five plastic bags of white powder, which were found in a brown paper bag
inside a jacket; $441 in cash found in the right pocket of a pair of jeans; the defendant’s driver’s
license and $680 in cash, both found in the left rear pocket of the same pair of jeans; $425 in cash
found in the left front pocket of the same pair of jeans; $900 in cash found in the inside breast pocket
of a gray jacket; and $20 in cash found in a gray and white hooded jacket. Investigator McCreight
acknowledged on cross-examination that a man named “Keith” and a man named “Powell” had both
been recently arrested for selling drugs out of the same residence. He did not know, however,
whether either of them was staying in the trailer at the time of the defendant’s 2003 arrest.

        Special Agent Forensic Scientist Dana Parmenter of the Tennessee Bureau of Investigation
Crime Laboratory, an expert in the identification of controlled substances, testified that she analyzed
the substances submitted in connection with the case and determined that they consisted of .5 grams
of cocaine base, or crack cocaine, and 130.9 grams, or 4.6 ounces, of powder cocaine.

       Vivial Taylor, recalled as a witness for the defense, repeated her earlier testimony that three
men lived with the defendant at his trailer at the time of the 2003 incident: “Keith Henning,”
“Powell,” and “Mervin [sic] Cates.”

        The defendant testified that the marijuana and the money found in the blue jeans were his,
but he denied ownership of the crack and powder cocaine and the blue jean jacket. He also denied
that he ever struck or threatened Taylor. He admitted, however, that he shoved her out his bedroom
door as he was trying to get her to leave his house. He stated that she reacted by grabbing a kitchen
knife and chasing him around the house with it, but that things had calmed down between them by
the time she left the house. Consequently, he was surprised when, as he was carrying the trash
outside, she began trying to run him down with her vehicle. The defendant testified that Taylor
drove her vehicle into his Cadillac, and was preparing to do so again, when he moved in front of the
vehicle. He explained that he did not believe she would really run him down and thought that he
could stop her from further damaging his car by standing in front of it. Taylor, however, kept
coming, and he therefore jumped on top of her car and struck her windshield with a tire tool that was
lying on the ground.

        The defendant further testified that Cates, Powell, and Keith regularly stayed at his home and
that he sometimes returned home early in the morning to find Cates asleep in his bed. In addition,
Cates kept some of his clothes in his closet. On cross-examination, the defendant testified that he
had seen cocaine before but did not know how much .5 grams of crack cocaine would cost. He

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acknowledged, however, that he had been convicted of the sale of .5 grams or more of cocaine less
than one month prior to the September 30, 2003, incident.

        Following deliberations, the jury convicted the defendant of the lesser-included offense of
simple assault and of the indicted offense of possession of .5 grams or more of cocaine with the
intent to deliver or sell.

                                             ANALYSIS

                                    Sufficiency of the Evidence

        The sole issue the defendant raises on appeal is whether the evidence was sufficient to sustain
his convictions. In considering this issue, we apply the rule that where sufficiency of the convicting
evidence is challenged, the relevant question of the reviewing court 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, 99 S. Ct. 2781, 2789 (1979); see also Tenn. R. App. P. 13(e) (“Findings of guilt in criminal
actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support
the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d
185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992). The
same standard applies whether the finding of guilt is predicated upon direct evidence, circumstantial
evidence, or a combination of direct and circumstantial evidence. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990).

        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. See State v. Pappas, 754 S.W.2d
620, 623 (Tenn. Crim. App. 1987). “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). Our supreme court stated the
rationale for this rule:

               This well-settled rule rests on a sound foundation. The trial judge and the
       jury see the witnesses face to face, hear their testimony and observe their demeanor
       on the stand. Thus the trial judge and jury are the primary instrumentality of justice
       to determine the weight and credibility to be given to the testimony of witnesses. In
       the trial forum alone is there human atmosphere and the totality of the evidence
       cannot be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)).

       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. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

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                                             A. Assault

        To sustain the conviction for assault, the State had to show beyond a reasonable doubt that
the defendant intentionally or knowingly caused Taylor to reasonably fear imminent bodily injury.
See Tenn. Code Ann. § 39-13-101(a)(2) (2003 & 2006). Taylor testified that the defendant struck
the windshield of the car she was driving with a swing blade, which caused her to feel fear. The
defendant denied that he used a swing blade but admitted that he struck the windshield of the car
with a tire tool. Viewed in the light most favorable to the State, this evidence was sufficient for the
jury to find the defendant guilty of intentionally or knowingly causing Taylor to reasonably fear
imminent bodily injury. We conclude, therefore, that the evidence was sufficient to sustain the
defendant’s conviction for assault.

                   B. Possession of .5 grams or more of Cocaine with Intent

         To sustain the conviction for possession of .5 grams or more of cocaine with the intent to
deliver or sell, the State had to show beyond a reasonable doubt that the defendant knowingly
possessed .5 grams or more of cocaine with the intent to deliver or sell it. Tenn. Code Ann. § 39-17-
417(a)(4), (b)(1) (2003 & 2006). Tennessee Code Annotated section 39-17-419 provides in pertinent
part: “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.”

         Possession of drugs and drug paraphernalia may be constructive as well as actual. State v.
Shaw, 37 S.W.3d 900, 903 (Tenn. 2001); State v. Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim.
App. 1996); State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). “Constructive
possession requires that a person knowingly have the power and the intention at a given time to
exercise dominion and control over an object, either directly or through others. In essence,
constructive possession is the ability to reduce an object to actual possession.” State v. Copeland,
677 S.W.2d 471, 476 (Tenn. Crim. App. 1984) (citation omitted). An individual’s mere presence
in an area in which drugs are found, or association with another individual in possession of drugs,
is not, alone, sufficient to establish constructive possession. Shaw, 37 S.W.3d at 903 (citing State
v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim. App. 1997); Cooper, 736 S.W.2d at 129). However,
possession of the premises in which contraband is found creates an inference that the possessor had
possession of the contraband. See Transou, 928 S.W.2d at 956; Armstrong v. State, 548 S.W.2d
334, 336 (Tenn. Crim. App. 1976).

         On appeal, the defendant argues that the circumstantial evidence was insufficient to establish
that the cocaine found in the residence was his. In support, he cites, among other things, the fact that
no drugs were found on his person and that the proof showed that he shared his home at the time
with several other men who had access to his bedroom, including two who were later arrested for
drug offenses. The jurors, however, heard the testimony with respect to the other men who shared
the home and their later arrests for drug offenses, yet nonetheless convicted the defendant of the
indicted offense. By their verdict, they obviously chose not to accredit the defendant’s denial of
ownership of the drugs. Credibility determinations are within the province of the jury, and we will
not disturb those determinations on appeal. See Pappas, 754 S.W.2d at 623. The proof at trial

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established that a large amount of powder cocaine, which had a street value of $7000 to $8000, was
found prepackaged in separate plastic bags inside a brown paper bag in a jacket hanging in the
defendant’s bedroom closet. Large amounts of cash were found in various locations in the closet,
as well as the defendant’s driver’s license. This evidence, viewed in the light most favorable to the
State, was sufficient for a jury to infer that the cocaine belonged to the defendant and that he
possessed it with the intent to deliver or sell it. We conclude, therefore, that the evidence was
sufficient to sustain the conviction.

                                         CONCLUSION

       Based on our review, we conclude that the evidence was sufficient to sustain the defendant’s
convictions for assault and possession of .5 grams or more of cocaine with the intent to deliver or
sell. Accordingly, we affirm the judgments of the trial court.


                                                      ___________________________________
                                                      ALAN E. GLENN, JUDGE




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