             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                 Assigned on Briefs January 14, 2004

              STATE OF TENNESSEE v. WILLIAM F. CARTWRIGHT

                          Appeal from the Criminal Court for Putnam County
                                No. 01-0641   Lillie Ann Sells, Judge



                          No. M2003-00483-CCA-R3-CD - Filed May 10, 2004


The defendant, William F. Cartwright, appeals as of right from his convictions by a jury in the
Putnam County Criminal Court for possession with intent to deliver one-half gram or more of
cocaine, a Class B felony, and simple possession of cocaine, a Class A misdemeanor.1 The trial
court sentenced him as a standard offender to concurrent sentences of nine years for possession of
one-half gram or more of cocaine with intent to deliver and eleven months, twenty-nine days for
simple possession of cocaine. However, the trial court ordered these convictions merged. The
petitioner contends (1) that the evidence is insufficient to support his conviction for possession with
intent to deliver one-half gram or more of cocaine, (2) that the trial court erred in not requiring the
state to elect which offense it was prosecuting, and (3) that his convictions for possession with intent
to deliver one-half gram or more of cocaine and for simple possession of cocaine violate double
jeopardy. We hold that the evidence is sufficient and that the trial court did not err by not requiring
the state to elect between offenses with regard to his cocaine convictions. We also hold that
although the trial court ordered the cocaine convictions to be merged, it should have entered only
one judgment of conviction and noted the merger of the counts in that judgment. We vacate the
judgments and remand the case for entry of a single judgment of conviction.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Vacated;
                                      Case Remanded

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
JOHN EVERETT WILLIAMS, JJ., joined.

Edwin G. Sadler, Cookeville, Tennessee, for the appellant, William F. Cartwright.




         1
           The defendant was also convicted of evading arrest and driving on a suspended license. Given the fact that
the notice of appeal does not mention multiple judgments and the issues ra ised relate solely to the cocaine offenses, we
assume no appea l has been taken regarding these convictions.
Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Senior Counsel, Office of the
Attorney General; William Edward Gibson, District Attorney General; and David Alan Patterson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        Officer Ronald Franklin of the Cookeville City Police Department testified that on April 11,
2001, he saw the defendant stopped at a stop sign in a 1986 gray Oldsmobile. He said he was aware
that the defendant did not have a valid driver’s license. He said he turned his car around, activated
his blue lights and siren, and pursued the defendant through a construction site. He said the
defendant accelerated and stopped only when construction work prevented him from continuing.
He said the defendant pulled into a driveway and waited for him. He said he approached the
defendant and told the defendant that he knew he did not have a driver’s license. He said he told the
defendant to walk with him to his patrol car in order to issue the defendant a citation.

       Officer Franklin testified that the defendant began to walk toward his patrol car and then
went back to his own car, stating that he needed to retrieve something. He said that he saw the
defendant reach for something in the passenger’s seat and that he drew his gun in response to the
defendant. He said he saw the defendant holding a plastic bag containing a white substance that was
approximately the size of a golf ball. He said that although he had ordered the defendant to stop, the
defendant ran away. He said he pursued the defendant but lost sight of him for about thirty seconds.
He said that when he found the defendant, he again ordered him to stop, which he did. Officer
Franklin said, though, that the defendant did not have the white substance after he apprehended him.
He said he searched the defendant’s car and found seventy dollars. He said that later, Officer Mitch
Harrington’s dog, Speedy, found a white substance buried in a flower bed along the route the
defendant had taken when he ran from Officer Franklin.

        On cross-examination, Officer Franklin testified that they weighed the white substance and
found that it was thirty-two grams. He acknowledged that when he sent it to the Tennessee Bureau
of Investigation’s (TBI) Crime Lab, their report indicated that the white substance was cocaine but
that it weighed only 25.5 grams. He said that when he mailed the cocaine to the TBI lab, he
accidentally wrote the wrong name on the package. He also acknowledged that the cocaine he
received back from the TBI had a brownish color. He said the cocaine that Speedy found was
actually crack cocaine. He said an “eight ball” of crack cocaine is about 3.5 grams and is usually
shared by two or three people in a day. On redirect-examination, Officer Franklin testified that the
cocaine that they recovered was more cocaine than he had seen before. He said that no drug
paraphernalia was found on the defendant or in his car and that people who use small amounts of
cocaine usually have drug paraphernalia with them.

        Jack Loyd Payne testified that he is employed by Highways, Inc. and was working as a
“flagman” for them on April 11, 2001, when the defendant drove past him. He said he was holding
a stop sign and warning drivers to drive slowly through the construction area. He said he heard the
defendant’s car drive past him quickly and then heard the police in pursuit. He said that he first saw


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the defendant and the policeman when they were parked in a driveway and that he saw the defendant
run from the policeman. He said he told the defendant to stop in order to avoid being shot by the
police. He said the defendant stopped and was apprehended by the police. He said that a couple
hours later, a man resembling the defendant returned to the area where the chase occurred and
appeared to be looking for something. He said he believed this man was the defendant. On cross-
examination, he acknowledged that he was not certain that the defendant was the person who
returned and appeared to be looking for something. He said that the man who returned harassed him
but that he refused to talk to the man.

        Officer Mitch Harrington, a K-9 officer with the Cookeville City Police Department, testified
that he and his dog, Speedy, were called to search for drugs after the defendant was arrested on April
11, 2001. He said Speedy had tied for first place in a finding “lost articles” competition in which
over two thousand dogs had competed. He said he took Speedy to the defendant’s car in order to
allow Speedy to catch the defendant’s scent. He said Speedy followed the defendant’s escape route
and later began digging in a flower bed. He said that Speedy found cocaine in the flower bed but that
no drug paraphernalia was found.

       Special Agent William Stanton, Jr., a forensic scientist for the TBI, testified that the white
substance sent to him by Officer Franklin was cocaine and weighed 25.5 grams. He said that he
weighed the cocaine without the plastic baggie that was sent to him and that if he weighed the
cocaine in the baggie, it may have weighed three to four more grams.

        Officer Scott Winfree of the Cookeville City Police Department testified that he used to work
undercover in the Drug Task Force, buying crack cocaine from drug dealers. He said an eight ball
of crack cocaine weighed about 3.5 grams and sold for $250 to $300 dollars. He said that one dose
of crack cocaine was about one-half gram and that people might smoke several times in one day.
He said he had never purchased twenty-five grams of crack cocaine because even dealers usually did
not have that large of a supply and because the Drug Task Force did not have enough money to
purchase twenty-five grams of crack cocaine. He said that people buying cocaine on the street
usually had drug paraphernalia. On cross-examination, Officer Winfree testified that if a person
smokes an eight ball of crack cocaine every day, 25.5 grams would be an eight-day supply. He
acknowledged that a drug dealer will often carry scales and extra plastic bags and may drive a nice
car. He said that in his experience, someone who has twenty-five grams of cocaine was going to
break the cocaine into smaller portions and sell it. Upon questioning by the trial court, Officer
Winfree testified that the cocaine found by Speedy would cost between $1600 and $2500.

                            I. SUFFICIENCY OF THE EVIDENCE

       The defendant contends that the evidence is insufficient to support his conviction for
possession of one-half gram or more of cocaine with intent to deliver because no evidence was
presented at trial showing that he intended to deliver the cocaine to anyone. The state contends the
evidence is sufficient. We agree with the state.



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        Our standard of review when the defendant questions the sufficiency of the evidence on
appeal 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). We do not reweigh
the evidence but presume that the jury has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the state. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions about
witness credibility were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

        Tennessee law prohibits a person from knowingly possessing cocaine with an intent to
deliver it. T.C.A. § 39-17-417(a)(4). With regard to the defendant’s insufficiency claim, T.C.A. §
39-17-419 provides the following:

               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.
               It may be inferred from circumstances indicating a casual exchange
               among individuals of a small amount of a controlled substance or
               substances that the controlled substance or substances so exchanged
               were possessed not with the purpose of selling or otherwise
               dispensing in violation of the provisions of § 39-17-417(a). Such
               inferences shall be transmitted to the jury by the trial judge’s charge,
               and the jury will consider such inferences along with the nature of the
               substance possessed when affixing the penalty.

Viewing the evidence in the light most favorable to the state, the evidence shows that the defendant
had a large amount of cocaine and intended to deliver it to others. Officer Franklin testified that
when he stopped the defendant, the defendant ran from him after retrieving the cocaine from his car.
He said that when he apprehended the defendant, the cocaine was missing. He said he did not find
any drug paraphernalia on the defendant or in his car. Jack Payne testified that a man he believed
was the defendant returned to the area where the defendant had run from Officer Franklin and was
looking for something. Special Agent Stanton testified that the cocaine weighed 25.5 grams. Officer
Winfree testified that one dose of crack cocaine was about one-half gram and that 25.5 grams of
cocaine was more than he had been able to buy during his time as an undercover agent. He said that
in his experience, anyone with that much cocaine intended to break it up and sell it to others. He
also said that people buying cocaine for personal use usually had drug paraphernalia with them. He
said that the cocaine confiscated from the defendant would cost between $1600 and $2500 dollars.

       The testimony reflects that 25.5 grams of crack cocaine is a large amount and unlikely to be
used by just one person. Moreover, the defendant’s actions on April 11, 2001, do not reflect that he
was under the influence of crack cocaine. In addition, no drug paraphernalia was found on the
defendant or in his car. See State v. Chearis, 995 S.W.2d 641, 645 (Tenn. Crim. App. 1999)


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(holding that 1.7 grams of crack cocaine, no drug paraphernalia, and baking soda was sufficient
evidence for a jury to find sufficiency for an intent to deliver). We conclude that in the light most
favorable to the state, the circumstances of this case, including the volume of crack cocaine found
in the flower bed and the officers’ testimony, support the defendant’s conviction for possession with
intent to deliver one-half gram or more of cocaine.

                                  II. ELECTION OF OFFENSES

        Although the defendant does not present it as a separate issue, he contends that the trial court
erred in not requiring the state to elect between the offenses of possession of cocaine with intent to
sell and possession of cocaine with intent to deliver. The state does not specifically respond to this
contention.

        When the state charges a defendant with one offense but produces evidence of multiple
offenses, the doctrine of election requires the state to elect the particular offense for which it seeks
a conviction. State v. Brown, 992 S.W.2d 389, 391 (Tenn. 1999). The doctrine enables the
defendant to prepare for a specific charge, protects the defendant against double jeopardy, and, most
importantly, ensures that jurors deliberate over and render a verdict based upon the same offense.
Id. In the present case, however, allowing the state to prosecute the defendant for possession of
cocaine with the intent to sell and the intent to deliver did not risk different jurors basing their
individual determinations on different sets of facts. “When the evidence does not establish that
multiple offenses have been committed . . . the need to make an election never arises.” State v.
Adams, 24 S.W.3d 289, 294 (Tenn. 2000). The cocaine charges in the present case stem only from
the incident involving Officer Franklin and the defendant. The jury was not required to make
findings from multiple criminal acts to determine if the defendant was guilty of the sale or the
delivery of cocaine. We conclude that the trial court did not err by failing to require the state to elect
as to whether the defendant possessed cocaine with the intent to sell or with the intent to deliver.

                                    III. DOUBLE JEOPARDY

        The defendant asserts that his convictions for simple possession of cocaine and possession
with intent to deliver one-half gram or more of cocaine violate the double jeopardy clauses of the
United States Constitution and the Tennessee Constitution and that we should order an acquittal for
the cocaine convictions. The defendant was indicted in separate counts for possession of cocaine
with the intent to sell and possession of cocaine with the intent to deliver. Relative to the possession
with intent to sell cocaine, the jury convicted the defendant of the lesser included offense of
possession of cocaine. He contends that because both charges stem from the same evidence, his
convictions for simple possession and possession with intent to deliver are unconstitutional. The
state contends that the trial court gave the defendant the appropriate relief when it merged the two
convictions. We agree with the state in part, but we believe that the record incorrectly retains
separate judgments of conviction for the cocaine counts.




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        The double jeopardy clauses of both the United States and Tennessee Constitutions state that
no person shall be twice put in jeopardy of life or limb for the same offense. U.S. Const. amend. V;
Tenn. Const. art. I, § 10. The clause has been interpreted to include the following protections: “It
protects against a second prosecution for the same offense after acquittal. It protects against a second
prosecution for the same offense after conviction. And it protects against multiple punishments for
the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969); State
v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996). It is the last protection that is of interest in this case.

        The state concedes that the defendant’s convictions for both simple possession of cocaine
and possession with intent to deliver cocaine are based on the same evidence and, therefore, violate
double jeopardy. The state argues, however, that the proper remedy is merger. We agree that under
the circumstances of this case, double jeopardy principles prohibit convictions for both simple
possession and possession with intent to deliver. We also agree with the state that this does not
require us to follow the defendant’s request to order an acquittal of the cocaine convictions.

        A dismissal is not the only legitimate option available when double jeopardy principles are
violated. In State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997), this court stated that:

                there is no need to “dismiss,” “vacate,” or “strike,” a particular
                “conviction” if what is meant by the term “conviction” is the return
                of the jury verdict of guilt. Rather, the jury verdict stands as a
                legitimate finding of fact and law which the trial court should
                preserve by merging the same offense counts into one judgment of
                conviction . . . that notes the merger of counts with each other. . . .
                Such a merger and imposition of a single judgment of conviction
                protects against double jeopardy and preserves the validity of the jury
                verdicts for future avoidance of problems related to unnecessarily
                dismissed “charges” or “convictions.” See, e.g., State v. Davis, 613
                S.W.2d 218, 221 (Tenn. 1981).

In the present case, the trial court intended to merge the convictions, stating that only the defendant’s
conviction for possession with the intent to deliver one-half gram or more of cocaine would remain.
A merger avoids a double jeopardy problem while protecting the jury’s findings. See State v.
Howard, 30 S.W.3d 271, 275 (Tenn. 2000). However, the trial court incorrectly entered separate
judgments of conviction including separate sentences. The mergers should result in only one
judgment of conviction with only one sentence.

      Based upon the foregoing and the record as a whole, we affirm the convictions but vacate the
judgments of conviction and remand the case for entry of a single judgment of conviction.


                                                                _______________________________
                                                                JOSEPH M. TIPTON, JUDGE


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