            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                              MARCH 1998 SESSION



STATE OF TENNESSEE,                       *      C.C.A. NO. 02C01-9710-CR-00405

              Appellee,                   *      SHELBY COUNTY

VS.                                       *      Hon. L. T. Lafferty, Judge

GEORGE ROSE,                              *      (Direct Appeal - Possession of
                                                  Controlled Substance)
              Appellant.                  *



                              CONCURRING OPINION

              I concur in the results reached by Judge Smith but write separately to

underscore why the failure to charge the jury on simple possession did not result in

reversible error. In this instance, the state's proof was that the defendant's

possession of the cocaine was incidental to the sale. The defense theory was that

the defendant did not own, possess, or sell cocaine. The defendant testified that

Edna Strickland knocked on his window and told him she was "trying to buy some

dope." He testified that she asked him where to get dope and, when he said he did

not know, she threw money in the window. He picked it up and threw it out the

window. The state's proof, of course, was that the defendant dispensed the illegal

drugs in exchange for money.



              Under these circumstances, the defendant was either guilty of the sale

of the drug or nothing at all. Neither the state nor the defendant theorized simple

possession or casual exchange. Thus, the trial court properly refused to instruct the

jury on the lesser offense. The instruction on the statutory inferences was not

mandated by the proof presented by either side.


                                          __________________________________
                                          Gary R. Wade, Judge
