         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                       July 2000 Session

        STATE OF TENNESSEE v. MARGARET REE SOMERVILLE

                       Appeal from the Circuit Court for Henry County
                            No. 12904    Julian P. Guinn, Judge



                   No. W1999-01333-CCA-R3-CD - Filed October 11, 2000


Defendant Margaret Ree Somerville was convicted by a jury of one count of possession of cocaine
with intent to sell or deliver, a Class B felony, and one count of possession of drug paraphernalia,
a Class A misdemeanor. Following a sentencing hearing, the trial court imposed a sentence of
twelve (12) years on the felony offense and eleven (11) months, twenty-nine (29) days on the
misdemeanor offense. The sentences were run concurrent to one another. Defendant challenges her
convictions, asserting that (1) she was denied her right to the timely appointment of counsel; (2) the
indictments against her were defective and should be quashed; and (3) the search warrant executed
in this case was defective. The judgment of the trial court is affirmed.

                T.R.A.P. 3 APPEAL; Judgment of the Circuit Court Affirmed.

CORNEL IA A. CLARK, SP . J., delivered the opinion of the court, in which DAVID H. WELLES, J. and
ALAN E. GLENN, J, joined.

Rosella M. Shackelford, for the appellant, Margaret Ree Somerville.

Paul G. Summers, Attorney General & Reporter, Kim R. Helper, Assistant Attorney General, Robert
“Gus” Radford, District Attorney General, Steve Garrett, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                             OPINION

       On March 16, 1999, two detectives from the Paris Police Department executed a search
warrant at the home jointly occupied by defendant Margaret Ree Somerville and Ben Phillip Ray.
When they arrived at the home they observed Ron Allen, a known drug runner, sitting on the front
porch.

        The detectives knocked, announced their presence, and entered the home. They encountered
the defendant in a bedroom. When she saw the detectives she appeared nervous. In a night stand
near the defendant the detectives located a spray can of Glade air freshener. Two packets of crack
cocaine were hidden under the cap. At trial Special Agent Sandra Romanek of the Tennessee Bureau
of Investigation testified that the substance recovered from the can contained a cocaine base and
weighed 1.0 grams.

        The defendant was indicted for possession of a Schedule II substance with intent to sell or
deliver, and possession of drug paraphernalia. At trial Ben Phillip Ray testified that the crack
cocaine in the Glade can was his, and that the defendant knew nothing about it. On cross-
examination he acknowledged that both he and defendant from time to time purchased multiple cans
of Glade spray, and that several were in the house at the time the search warrant was executed. He
also acknowledged that he had been convicted previously of possession of a controlled substance
with intent to sell or deliver. He finally admitted that since the date of the search he had been
arrested and convicted of an additional cocaine charge.

        The defendant was convicted of both charges against her. She raises three issues in her
appeal: (1) she was denied her right to the timely appointment of counsel; (2) the indictments
against her were defective and should be quashed; and (3) the search warrant executed in this case
was defective. However, defendant failed to file a motion for new trial. This failure constitutes a
waiver of any issues that could have been presented in the motion. T. R .A .P. 3(e); State v. Martin,
940 S.W.2d 567, 569 (Tenn. 1997). Accordingly, this court may review the record only for issues
which would result in outright dismissal of the case, such as sufficiency of the evidence. See State
v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). This court may also address any plain
errors which have affected defendant’s substantial rights. Tenn. R. Crim. P. 52(b).

        We first consider the sufficiency of the convicting evidence. The standard is whether, after
reviewing 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, 61 L.Ed.2d 560 (1979). Questions concerning the credibility of the
witnesses, the weight and value to be given the evidence, as well as all factual issues raised by the
evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. App. 1987). Nor may this court reweigh or reevaluate the evidence. State v. Cabbage,
571 S.W.2d 832, 835 (Tenn. 1978). A verdict of guilty by the jury, approved by the trial judge,
accredits the testimony of the state’s witnesses and resolves all conflicts in the testimony in favor
of the state. See State v. Cazes, 875 S.W. 2d 253, 259 (Tenn. 1994).

        The evidence in this case is sufficient to support the defendant’s conviction of possession of
0.5 or more grams of cocaine with intent to sell or deliver and possession of drug paraphernalia. At
the time the Paris police officers arrived at the defendant’s home to execute a search warrant, she
was the only person present. The Glade air freshener can containing crack cocaine was found in a
night stand in the bedroom in which the defendant was located at the time the officers arrived at the
home. There is no dispute that the items seized were taken from the home, or that the crack cocaine
weighed in excess of 0.5 grams. Therefore, it was within the jury’s province to determine whether
this defendant was in actual or constructive possession of the items in question with the requisite
intent. The evidence is sufficient to support her convictions.


                                                 -2-
       Defendant appears to argue that the trial court’s actions did also affect her substantial rights.
However, even if defendant had not waived her right to raise these issues, other deficiencies still
prevent their consideration.

        Defendant’s first substantive claim is that she was denied her constitutional right to the
assistance of counsel in the preparation and presentation of her defense because counsel was not
appointed until six (6) weeks prior to trial. Tenn. Code Ann. §40-14-202(a) provides that an indigent
defendant in a felony case is entitled to appointed counsel, and requires further that proceedings not
be had “until the attorney so appointed has had sufficient opportunity to prepare the case”. This
means a reasonable time under the facts and circumstances of the case. Brown v. State, 553 S.W.2d
94 (Tenn. Crim. App. 1977). In this case defendant was arrested on March 16, 1999. She was
indicted on July 6, 1999. She was arraigned on July 12, 1999. Under the scheduling order entered
that day all motions in her case should have been filed by July 22, 1999, and the final settlement date
was set for September 21, 1999. Counsel was not appointed until September 28, 1999. The case
was tried to a jury on November 12, 1999, about six weeks later.

        However, Tenn. Code Ann. §40-14-202(b) requires an accused to make an affirmative
request for appointment of counsel if she cannot afford counsel. Defendant did not assert to the
court that she was indigent until long after arraignment. She was out on bond from the time of her
arrest until trial. The trial court cannot be faulted for not appointing counsel until September 28,
1999, when no prior request was made.

        Further, nothing in the record reflects that counsel, after appointment, sought a continuance
of the trial date or the opportunity to file motions beyond the originally-scheduled time frame. In
the absence of such a request and denial, we cannot conclude that any due process violation has
occurred. See State v. Charles and Larry Bryant, No. 97, Monroe County (Tenn. Crim. App.,
October 17, 1986).

        Defendant next contends that the failure to appoint counsel in a timely manner prevented her
from filing an otherwise-valid motion to dismiss the indictment based on a defect or a discrepancy
in the date of the search warrant, which she claims issued on February 26, 1999, and the arrest date
reflected in the indictment, March 16, 1999. Defendant has not included in the record a copy of
either of the two search warrants referenced during the trial testimony. It is the duty of the appellant
to prepare a record that conveys a fair, accurate, and complete account of what transpired in a trial
court with respect to the issues that form the basis for appeal. Tenn. R. App. P. 24(b); State v.
Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Because defendant has not complied with
Tenn. R. App. P. 24, we are bound by the rule that where the record is incomplete and there is no
error apparent, we will conclusively presume the findings and judgment of the trial court to be
correct. State v. Ivy, 868 S.W.2d 724, 728 (Tenn. Crim. App. 1993). Furthermore, it appears that
defendant simply misunderstands the trial testimony. According to Detective Bass, an earlier search
warrant had been executed for the same location in February 1999. The earlier warrant was




                                                  -3-
mentioned in the affidavit submitted to secure the later, March 16, warrant.1 However, Detective
Blackwell testified that the search warrant they executed on March 16, 1999, was issued within a
short time of its execution.

        Defendant finally contends more specifically that the affidavit supporting the search warrant
was insufficient, and that the warrant itself would have been suppressed if a timely motion had been
filed. For the reasons discussed above, her failure to include a copy of the search warrant in the
record precludes consideration of this issue. Additionally, nothing in the record reflects that
defendant ever filed any motion to suppress, timely or otherwise. Tenn. Code Ann. §40-30-210(f)
provides in part that “there is a rebuttable presumption that a ground for relief not raised before a
court of competent jurisdiction in which the ground could have been presented is waived”. Since
there is no evidence in this record about this issue, it is waived.

         For the reasons set forth above, the judgment of the trial court is affirmed in all respects.



                                                                   ____________________________________
                                                                   CORNELIA A. CLARK, SPECIAL JUDGE




         1
           At trial defense counsel first asked Detective Bass to read aloud the statement contained in the March 16
warran t. Later, how ever, she o bjected to h is completing the reading of the statement, and did not intr oduce the warra nt.



                                                             -4-
