         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 3, 2005

          STATE OF TENNESSEE v. PETER ALEXANDER GRAVES

                  Direct Appeal from the Circuit Court for Weakley County
                       No. CR20-2004     William B. Acree, Jr., Judge



                     No. W2004-01525-CCA-R3-CD - Filed July 19, 2005


This is a direct appeal as of right from a conviction on a jury verdict of possession of .5 grams or
more of cocaine with intent to sell or deliver, and possession of not less than one-half ounce nor
more than ten pounds of marijuana with intent to sell or deliver. The trial court sentenced the
Defendant as a Range II, multiple offender to fifteen years for the cocaine conviction and three years
for the marijuana conviction, to be served concurrently in the Tennessee Department of Correction
(TDOC). The Defendant argues two issues on appeal: 1) the evidence was insufficient to find him
guilty on both charges, and 2) the trial court erred in imposing an excessive sentence. We affirm the
judgments of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOHN
EVERETT WILLIAMS, J., joined.

Joseph P. Atnip, District Public Defender, Dresden, Tennessee, for the appellant, Peter Alexander
Graves.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION


                                              FACTS

       In October of 2003, the Defendant, Peter Graves, was arrested in Martin, Tennessee, on an
outstanding warrant for probation violation. The arresting officers discovered marijuana in the
Defendant’s automobile in a search incident to the arrest. The police also witnessed the Defendant
throw a bag of cocaine to the ground, and saw the Defendant appear to throw an object under the
automobile. When the Defendant’s car was towed away, a bag of marijuana was discovered on the
ground where the car had been parked. In January of 2004, the Defendant was indicted by a Weakley
County grand jury on two drug related charges: 1) possession of .5 grams or more of a Schedule III
controlled substance (cocaine) with intent to manufacture, deliver or sell, and 2) possession of not
less than half an ounce nor more than ten pounds of a Schedule VI controlled substance (marijuana)
with intent to sell or deliver. See Tenn. Code Ann. § 39-17-417. A jury trial was conducted in April
of 2004.

        At trial, Officer Jason Arant of the Martin Police Department testified that he and
Investigator Randall Walker were in a patrol car the afternoon of October 17, 2003, when the
Defendant drove by them. Officer Arant recognized the Defendant, and he suspected the Defendant
had an outstanding warrant. After contacting the police dispatcher, who confirmed that the
Defendant was indeed wanted for probation violation, Officer Arant and Investigator Walker began
looking for the Defendant, whom they quickly found nearby. The two officers observed what
“appeared to be the same vehicle” they witnessed the Defendant driving just minutes earlier, parked
on the side of a dead-end road, facing the wrong direction. As the officers approached the car, they
observed that the driver’s side door was open, there was a juvenile sitting in the front seat on the
passenger side, the Defendant was sitting in the middle of the front seat, and an unidentified woman
was seated near the driver’s seat either very close to the Defendant or partially on his lap.

         As Officer Arant approached the vehicle, the woman exited and walked into a nearby house.
The Defendant also exited the vehicle, but as he did he “made a gesture” in which his shoulder
dipped, which Officer Arant believed indicated the Defendant “was throwing something under the
vehicle.” As Officer Arant was attempting to place the Defendant into handcuffs, the Defendant
“put his left hand into his left pocket and brought it back out . . . and transfer[ed] [an] object from
his left hand to his right hand, and thr[ew] it down on the ground.” After the Defendant was secured,
Officer Arant retrieved the object he witnessed the Defendant drop, which he discovered to be a
plastic bag containing rocks of crack cocaine, each individually packaged in other plastic bags.

        Officer Arrant also testified that in a search incident to the Defendant’s arrest, he and
Investigator Walker found two bags of marijuana in the car, one under the front seat and one in the
glove box, and $520 on the Defendant’s person. Additionally, as the car was towed away, another
bag of marijuana was discovered on the ground where the vehicle had been parked. On cross-
examination, Officer Arant stated he believed the juvenile, who was under observation the entire
time, never had an opportunity to dispose of the marijuana found under the car, but conceded the
woman may have. Officer Arant also stated that the juvenile passenger was released after he was
questioned and searched, and the unidentified woman was never questioned.

       The vehicle the Defendant was in at the time of his arrest was not properly registered.
However, Officer Arant testified that the person whose name it was still titled under had relinquished
all ownership of the vehicle, and the new owner failed to register it. Officer Arant also testified that




                                                  -2-
the Defendant told him he had paid $100 for the car. The license plate on the vehicle was registered
to the Defendant’s brother, Chet Graves. No one had claimed the vehicle as of the date of the trial.

         Investigator Randall Walker testified that he also saw the Defendant drive by in the same
vehicle in which he was eventually found, and that the unidentified woman who was sitting in his
lap left the car and walked into a house when he arrived at the scene. Jessica Webb of the Tennessee
Bureau of Investigation Forensic Chemistry Section was certified by the trial court as an expert
witness in the area of forensic science. Ms. Webb testified that the illegal substances submitted to
her lab were determined to be 1.1 grams of cocaine and 43.1 grams of marijuana.

         The Defendant’s testimony at trial varied from the testimony of the police officers on several
key points.1 The Defendant denied that he drove by the officers in a car before his arrest. He
testified that the vehicle he was in at the time of his arrest did not belong to him. The Defendant
claimed that the cash found in his pocket was from his girlfriend and was for their rent. He denied
that he threw anything on the ground. The Defendant also stated that the woman, whom he did not
know, did not walk into a house, but rather drove off in a car with other people. The Defendant also
insisted there were “six police cars” at the scene when he was arrested,2 and that officer Arant lied
when he testified that he saw the Defendant throw the cocaine on the ground. According to the
Defendant’s testimony, he was in his mother’s boyfriend’s house when the unidentified woman asked
him to come sit by her in the car. He did not know whose vehicle it was, or who had been driving
it because it was parked when he came out of the house. The Defendant stated he had just sat down
in the car when the police arrived. The Defendant further testified that he believed the woman must
have dropped the drugs found on the ground. At the conclusion of the trial, the jury returned a verdict
of guilty as charged on both counts.

        A sentencing hearing was conducted in May of 2004, at which the Defendant testified that
there were no weapons or any violence involved in the crime, but admitted he had several prior drug
convictions. The trial court determined that the Defendant was a Range II, multiple offender and
sentenced him to fifteen years for the Class B felony cocaine possession conviction and three years
for the Class E felony marijuana possession conviction, to be served concurrently. The Defendant
filed a motion for a new trial, which was denied following an evidentiary hearing in June of 2004.
The Defendant timely filed a notice of appeal.

                                            ANALYSIS
       The Defendant now argues that there was insufficient evidence to convict him of the crimes
of possession with intent to sell cocaine and marijuana, and requests that this Court reverse and
dismiss, or remand the case for a new trial. However, should the convictions stand, the Defendant



         1
          The Defendant had originally elected not to testify, but during the Momon examination changed his mind and,
against the advice of his counsel, took the stand.

         2
             Officer Arant testified that there were no more than two police cars at the scene of the arrest.

                                                              -3-
also argues that the trial court imposed excessive sentences for his two convictions, and requests his
sentence be reduced to twelve years.

I. Insufficient Evidence
         The Defendant’s first issue on appeal is whether there was sufficient evidence for any rational
trier of fact to find beyond a reasonable doubt that he was guilty of the two drug related crimes for
which he was convicted. The Defendant agues that he was not found in direct possession of any
controlled substance, and his mere “proximity” to the drugs found on the ground or in a car that did
not belong to him is insufficient to find he had constructive possession.

        A. Standard of Review
        Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings 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.” A convicted criminal defendant
who challenges the sufficiency of the evidence on appeal bears the burden of demonstrating why the
evidence is insufficient to support the verdict, because a verdict of guilt destroys the presumption of
innocence and imposes a presumption of guilt. See State v. Evans, 108 S.W.3d 231, 237 (Tenn.
2003); State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). This Court must reject a convicted criminal defendant’s challenge to the
sufficiency of the evidence if, after considering the evidence in a light most favorable to the
prosecution, we determine that any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v.
Hall, 8 S.W.3d 593, 599 (Tenn. 1999).

         On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35 S.W.3d at
558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the testimony of the State’s
witnesses and resolves all conflicts in the evidence in favor of the prosecution’s theory. See State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions about the credibility of witnesses, the weight
and value of the evidence, as well as all factual issues raised by the evidence are resolved by the trier
of fact, and this Court will not re-weigh or re-evaluate the evidence. See Evans, 108 S.W.3d at 236;
Bland, 958 S.W.2d at 659. Nor will this Court substitute its own inferences drawn from
circumstantial evidence for those drawn by the trier of fact. See Evans, 108 S.W.3d at 236-37;
Carruthers, 35 S.W.3d at 557.

         B. Possession with Intent
         In order to convict the Defendant of the Class B felony cocaine charge, the State was required
to prove beyond a reasonable doubt that the Defendant: 1) knowingly possessed a substance
containing cocaine, 2) with the intent to sell or deliver, and 3) the amount was .5 grams or more. See
Tenn. Code Ann. § 39-17-417(a)(4) and (c)(1). For the Class E felony marijuana conviction, the State
bore the burden of proving the Defendant: 1) knowingly possessed marijuana, 2) with intent to sell
or distribute, and 3) the amount of marijuana was not less than one-half once (14.175 grams) nor more
than ten pounds (4,535 grams). See Tenn. Code Ann. § 39-17-417(a)(4) and (g)(1). The Defendant


                                                  -4-
has not challenged whether the substances found were cocaine and marijuana, nor whether the weight
of the illegal substances met the elements of the crimes for which he was charged. It is unclear
whether the Defendant challenges the jury’s conclusion that the drugs were possessed with the intent
to sell or distribute. The only issue clearly challenged in the Defendant’s appellate brief is whether
there was sufficient evidence to conclude the Defendant possessed the illegal substances discovered
at the scene of his arrest.

        Tennessee courts have recognized that possession may be actual or constructive. State v.
Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing State v. Patterson 966 S.W.2d 435, 444-45 (Tenn.
Crim. App. 1997)). Constructive possession is essentially “the ability to reduce an object to actual
possession.” State v. Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Constructive
possession occurs when a person has “the power and intention at a given time to exercise dominion
and control over [the drugs] either directly or through others.” Shaw, 37 S.W.3d at 903 (quoting
Patterson, 966 S.W.2d at 445). However, “[o]ne’s mere presence in an area where drugs are
discovered, or one’s mere association with a person who is in possession of drugs, is not alone
sufficient to support a finding of constructive possession.” Shaw, 37 S.W.3d at 903 (citing Patterson,
966 S.W.2d at 445; Cooper, 736 S.W.2d at 129); see also State v. Bigsby, 40 S.W.3d 87, 90 (Tenn.
Crim. App. 2000).

         Additionally, “circumstantial evidence alone may be sufficient to support a conviction.”
Bigsby, 40 S.W.3d at 90. However, for a conviction based solely on circumstantial evidence to stand,
such evidence “must be not only consistent with the guilt of the accused but it must also be
inconsistent with innocence and must exclude every other reasonable theory or hypothesis except that
of guilt.” Id. Furthermore, “‘it must establish such a certainty of guilt of the accused as to convince
the mind beyond a reasonable doubt that [the defendant] is the one who committed the crime.’” Id.
(quoting Pruitt v. State, 460 S.W.2d 385, 390 (Tenn. Crim. App. 1970)).

        In determining whether the possession of a controlled substance was intended for sale, this
Court looks to the entirety of the circumstances surrounding the arrest. We have previously
determined that a large amount of cash found in conjunction with cocaine amounted to sufficient
evidence of intent to sell. See State v. Logan, 973 S.W.2d 279, 281 (Tenn. Crim. App. 1998). We
have also found that possession of a large amount of drugs and the absence of any drug paraphernalia
or apparatus indicative of personal use is sufficient to convict for possession of a controlled substance
with intent to sell or deliver. See State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999)
(holding that 1.7 grams of crack cocaine was a sufficiently large amount to infer intent to sell).
Moreover, the law expressly allows a jury to infer intent to sell based on the amount of the controlled
substance possessed and the “relevant facts” surrounding the arrest. See Tenn. Code Ann. § 39-17-
419.3



         3
          “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.” Tenn. Code Ann. § 39-17-419.

                                                         -5-
        In our view, the evidence presented at trial, viewed in the light most favorable to the State,
was legally sufficient to support the Defendant’s convictions for both possession of cocaine and
possession of marijuana with intent to deliver. Officer Arant testified that he saw the Defendant drive
by in a vehicle, and minutes later found the Defendant in “what appeared to be the same vehicle.”
Officer Arant witnessed the Defendant throw a bag on the ground, which was later determined to
contain a total of 1.1 grams of cocaine further wrapped in individual packages. Officer Arant also
testified that he observed the Defendant appear to throw something under the car, and a bag
containing marijuana was later found on the ground where the car was parked. Also, Officer Arant
and Investigator Walker testified that two other packages of marijuana were found in the car. While
the car was not properly registered, the Defendant was seen driving the car moments before he was
found by police sitting in the same car. The Defendant made a statement to Officer Arant that he had
paid $100 for the car at some point, and the license plate affixed to the car was registered to a relative
of the Defendant.

        Based on this evidence a jury could have rationally concluded that the car in which marijuana
was discovered belonged to the Defendant. A jury could have further concluded from the testimony
presented that the Defendant had direct possession of the cocaine he pulled from his pocket and
dropped on the ground, and constructive possession of the marijuana found in and under the car. The
jury could further rationally conclude, based on the cash found on the Defendant, the amount of the
drugs, and the fact that the drugs were individually packaged, that the Defendant intended to sell or
distribute the illegal substances. Accordingly, we find the evidence presented to the jury was
sufficient to support both of the Defendant’s convictions. This issue has no merit.

II. Sentencing
        The Defendant also argues that he received an excessive sentence. Specifically, the Defendant
argues that the trial court erroneously applied one enhancement factor in violation of his Sixth
Amendment right to trial by jury, and failed to apply one mitigation factor. Therefore, the Defendant
asserts, his effective sentence of fifteen years was excessive, and should be reduced to twelve years.

        In calculating a sentence for a Class B or E felony conviction, the “presumptive sentence . .
. shall be the minimum sentence in the range if there are no enhancement or mitigating factors.”
Tenn. Code Ann. § 40-35-210(c). If there are enhancement, but no mitigating factors, the trial court
may set the sentence above the minimum, but still within the range. See Tenn. Code Ann. § 40-35-
210(d). A sentence involving both enhancement and mitigating factors for a Class B or E felony
requires the court to start at the minimum, next assign the proper weight for any applicable
enhancement factor(s), and finally apply a reduction within the range as appropriate for any mitigating
factor(s). See Tenn. Code Ann. § 40-35-210(e). The sentence for a Class B felony as a Range II,
multiple offender is “not less than twelve (12) nor more than twenty (20) years.” Tenn. Code Ann.
§ 40-35-112(b)(2). The sentence for a Class E felony in the same range is “not less than two (2) nor
more than four (4) years.” Tenn. Code Ann. § 40-35-112(b)(5). Therefore, the Defendant’s
presumptive sentence for his Class B felony conviction for possession of cocaine with intent is the
minimum in the range, or twelve years, and the Defendant’s presumptive sentence for his Class E



                                                   -6-
felony conviction for possession of marijuana with intent is also the minimum in the range, or two
years.

        A. Standard of Review
        Before a trial court imposes a sentence upon a convicted criminal defendant, it must consider
(a) the evidence adduced at the trial and the sentencing hearing; (b) the presentence report; (c) the
principles of sentencing and arguments as to sentencing alternatives; (d) the nature and characteristics
of the criminal conduct involved; (e) evidence and information offered by the parties on the
enhancement and mitigating factors set forth in Tennessee Code Annotated sections 40-35-113 and
40-35-114; and (f) any statement the defendant wishes to make in the defendant’s own behalf about
sentencing. See Tenn. Code Ann. § 40-35-210(b); State v. Imfeld, 70 S.W.3d 698, 704 (Tenn. 2002).
To facilitate appellate review, the trial court is required to place on the record its reasons for imposing
the specific sentence, including the identification of the mitigating and enhancement factors found,
the specific facts supporting each enhancement factor found, and the method by which the mitigating
and enhancement factors have been evaluated and balanced in determining the sentence. See State
v. Samuels, 44 S.W.3d 489, 492 (Tenn. 2001).

         Upon a challenge to the sentence imposed, this court has a duty to conduct a de novo review
of the sentence with a presumption that the determinations made by the trial court are correct. See
Tenn. Code Ann. § 40-35-401(d). However, this presumption “is conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If our review reflects that
the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence
after having given due consideration and proper weight to the factors and principles set out under the
sentencing law, and that the trial court’s findings of fact are adequately supported by the record, then
the presumption is applicable, and we may not modify the sentence even if we would have preferred
a different result. See State v.Fletcher, 805 S.W. 2d 785, 789 (Tenn. Crim. App. 1991). We will
uphold the sentence imposed by the trial court if (1) the sentence complies with the purposes and
principles of the 1989 Sentencing Act, and (2) the trial court’s findings are adequately supported by
the record. See State v. Arnett, 49 S.W.3d 250, 257 (Tenn. 2001). The burden of showing that a
sentence is improper is upon the appealing party. See Tenn. Code Ann. § 40-35-401, Sentencing
Commission Comments; Arnett, 49 S.W.3d at 257.

        B. Blakely Violation
        The Defendant first argues that the trial court erred by enhancing his sentence based upon its
finding of fact that he had “a previous history of unwillingness to comply with the conditions of a
sentence involving release in the community.” Tenn. Code Ann. § 40-35-114(9). The Defendant
argues that his Sixth Amendment right to a trial by jury was impugned when the trial court made
determinations of fact for sentence enhancement purposes that were not submitted to a jury or
admitted by him, citing Blakely v. Washington, 124. S.Ct. 2531 (2004). However, our supreme court
has recently held that the enhancement component of Tennessee’s sentencing structure does not
violate a defendant’s Sixth Amendment right to a trial by jury. See State v. Gomez, ___ S.W.3d ___,
No. M2002-01209-SC-R11-CD, 2005 WL 856848 (Tenn., Nashville, April 15, 2005). Therefore, the


                                                   -7-
Defendant’s claim of a Sixth Amendment right violation based on the trial court’s enhancement of
his sentence is without merit.4

        C. Mitigation Factor
        In the Defendant’s final issue, he argues that the trial court erred by adopting a “blanket
policy” of not applying mitigation factor number one, that the Defendant’s “criminal conduct neither
caused nor threatened serious bodily injury,” to his drug conviction sentences. Tenn. Code Ann. 40-
35-113(1). While it is true that a trial court cannot refuse per se to consider mitigation factor one in
cases involving a conviction for possession of cocaine, see State v. Ross, 49 S.W.3d 833, 848-49
(Tenn. 2001), neither is this mitigation factor afforded special significance in such cases. See id. at
849.

        The Ross case is further distinguishable in that in the case at hand, the trial court did not adopt
a per se exclusion of the mitigation factor; the Defendant’s cocaine possession conviction was based
on actual possession, not constructive possession; and the evidence in this case, unlike that in Ross,
clearly indicates the Defendant intended to sell the cocaine. Therefore, mitigation factor one is
entitled to little weight, and the trial court did not err in electing not to reduce the Defendant’s
sentence based on this factor. See State v. Jeremy Sheron Hall, No. E2003-02946-CCA-R3-CD, 2005
WL 428292, at *12-13 (Tenn. Crim. App., Knoxville, Feb. 24, 2005); State v. Michael Andrae
Holman, No. M2002-01471-CCA-R3-CD, 2003 WL 21713422, *6-7 (Tenn. Crim. App., Nashville,
July 23, 2003). Furthermore, we note that even if the trial court’s refusal to apply mitigation factor
one was error, we would find it harmless error. The Defendant’s prior criminal history as well as his
record of unwillingness to comply with conditions of a sentence involving community release
sufficiently support his effective fifteen year sentence. Accordingly, this issue is without merit.

                                         CONCLUSION
        Based on the foregoing reasoning and authorities, we affirm the judgments of the trial court
as to both the Defendant’s convictions and sentences.



                                                                  ___________________________________
                                                                  DAVID H. WELLES, JUDGE




        4
             W e note that the Defendant does not otherwise challenge the applicability of the enhancement factor to his
sentences.

                                                            -8-
