State of Tennessee v. Keith Latrell Jackson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 25, 2005 Session

STATE OF TENNESSEE v. KEITH LATRELL JACKSON

Direct Appeal from the Criminal Court for Davidson County

No. 2001-D-2175 Seth Norman, Judge

No. M2004-00562-CCA-R3-CD - Filed April 12, 2005

A Davidson County jury found the Defendant, Keith Latrell Jackson, guilty of possession with the

intent to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-Free School

Zone and of possession of a firearm with the intent to employ it in the commission of or escape from

an offense. The trial court sentenced the Defendant to an effective sentence of thirty-six years in

prison. On appeal, the Defendant contends that: (1) the trial court erred when it denied his motion

to suppress; (2) the evidence is insufficient to support his convictions; (3) the trial court erred in

admitting the testimony of a surveyor pertaining to the use of GPS in determining the distance

between the location of the offense and the real property that comprises Wharton School; and (4) the

trial court erred when it sentenced him. After thoroughly reviewing the record and the applicable

authorities, we reverse the Defendant’s conviction and sentence for possession of a firearm with the

intent to employ it in the commission of or escape from an offense, and we affirm the Defendant’s

conviction and sentence for possession with the intent to sell twenty-six (26) grams or more of a

substance containing cocaine in a Drug-Free School Zone.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part

and Reversed in Part

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and

JERRY L. SMITH , JJ., joined.

Kenneth Quillen, Nashville, Tennessee, for the Appellant, Keith Jackson.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney

General; Victor S. (Torry) Johnson, III, District Attorney General; and John Zimmerman and

Christina Goodson, Assistant District Attorneys General, for the Appellee, State of Tennessee.

OPINION

I. Facts

In October of 2001, a Davidson County Grand Jury indicted the Defendant for possession

with the intent to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-

Free School Zone and possession of a firearm with the intent to employ it in the commission of or

escape from an offense. A Davidson County Jury convicted the Defendant of both of these charges.

The trial court sentenced the Defendant to thirty-six years, at 100%, for the possession with the intent

to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-Free School Zone

and to three years, at 35%, for the possession of a firearm with the intent to employ it in the

commission of or escape from an offense. The trial court ordered that the sentences be served

concurrently.

The following evidence was presented at the Defendant’s trial: J.D. Jones, a lieutenant with

the Metropolitan Police Department, testified that, on September 28, 2001, he and other officers

executed a search warrant for an apartment, located in an apartment complex, at 1612 16th Avenue,

Nashville. The officer said that he was wearing a vest and a raid jacket that identified him as a

police officer, and he and the other officers announced their presence by yelling that they were

executing a search warrant. Lieutenant Jones testified that, as he was approaching the apartment,

he noticed four men, who appeared to be gambling, on the stoop of an apartment located in front of

the apartment that the officers were searching. As the other officers went to search the back

apartment, he attempted to control the four men who were on the stoop. As he did so, the men

walked away, while placing objects in their pockets. The lieutenant requested that another officer

assist him control these men, and, at that time, the Defendant ran away from the officer. Lieutenant

Jones drew his gun and told the Defendant to get on the ground, and, after the Defendant ran

approximately fifty yards, the Defendant returned to the apartment.

Lieutenant Jones testified that Officer Johnson came outside to assist him and Officer

Johnson searched the Defendant. The lieutenant noticed a Monte Carlo, that had a temporary tag,

parked near his police car, and he asked if anyone had the keys to that car. He testified that none of

the men said that they knew anything about the vehicle. Lieutenant Jones later discovered that the

temporary tag was issued to the Defendant’s mother. The lieutenant attempted to unlock the Monte

Carlo using keys found on the Defendant, and, after he determined that the keys successfully

unlocked the car, he re-locked the car and called for a K-9 unit to search the car for the presence of

narcotics.

Lieutenant Jones testified that he was present for the K-9 search of the Monte Carlo. He said

that the police dog alerted for the presence of narcotics by scratching on the passenger side door.

Lieutenant Jones testified that he and the other officers opened the vehicle and found approximately

$38,000 in the right passenger seat. He said that the dog also alerted the officers to the console

inside the vehicle, and the officers found a bag that contained between fifty and sixty grams of

cocaine. Lieutenant Jones testified that he also discovered a gun between the console and the

driver’s seat, and electronic scales that had cocaine residue were recovered from the console. He

testified that, under the seats of the vehicle, he found dryer sheets, which are typically used to mask

the scent of drugs. The lieutenant said that the Defendant did not tell him where the Defendant had

acquired $38,000, and the Defendant said that he was unemployed.

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Lieutenant Jones testified that he also recovered several papers and a Sprint cell phone box

with a bill from the car. He said that the Sprint cell phone bill was for an account held in the

Defendant’s name. The lieutenant found three cell phones either on the Defendant’s person or in the

car. Lieutenant Jones stated that, based on his experience, people involved in drug trafficking use

multiple cell phones to avoid detection. Lieutenant Jones testified that there was a receipt in the car

for its purchase. He said that the receipt was from an auto sales store, and it described the vehicle

as a black Chevrolet Monte Carlo that was purchased for $5900 in cash and paid for by the

Defendant. The receipt was signed by Donna Jackson, the Defendant’s mother.

On cross-examination, Lieutenant Jones testified that the search warrant was for apartment

C, the unit that was the farthest away from the street. He said that he believed the Defendant had two

cell phones on his person and one in the vehicle, but he admitted that there may have been only one

on the Defendant. He testified that there were several keys on the key chain he obtained from the

Defendant, and there could have been keys to three different cars.

Samuel Johnson, an officer with the Metro Police Drug Task Force, testified that he was one

of the officers that executed a search warrant at 1612 16th Avenue North, apartment C, on September

28, 2001. He said that apartment C was located in a building that contained several apartments. The

officer said that, when he arrived at the apartment building, he saw four men on the front porch of

another, nearby apartment. He testified that he wore a police uniform, and it was his responsibility

to enter and secure apartment C for the other officers. Officer Johnson testified that, while he went

to apartment C, Lieutenant Jones approached the four men on the nearby porch. Later, he assisted

Lieutenant Jones by searching the Defendant, to ensure officer safety, and he noticed a bulge in the

Defendant’s pocket of his pants. Officer Johnson testified that the Defendant told him that the bulge

was money, and the Defendant gave the officer permission to remove the money. The officer

explained that he removed two bunches of money totaling $5921, $2000 of which was wrapped in

a white grocery bag secured by rubber bands. He testified that the Defendant also had keys and a

driver’s license in his pocket, and he removed all of these items and placed them on the sidewalk.

Officer Johnson testified that he was present when Lieutenant Jones inquired about the Monte Carlo,

and no one responded.

Officer Johnson testified that the K-9 officer and dog arrived to examine two vehicles, one

in front of the apartment and the black Monte Carlo located on the street. He said that the dog gave

a positive alert to the presence of the odor of narcotics. He said that the dog scratched the door of

the Monte Carlo, and Lieutenant Jones opened the door with the Defendant’s keys. The dog again

alerted positively to the presence of narcotics in the console area, where they found a bag containing

approximately 59 grams of cocaine. The officer also found in the car drug scales, a .9 millimeter

handgun, a bag containing about $36,000, dryer sheets, some baggies, and paperwork on the vehicle.

He testified that the money seized totaled $43,886. Officer Johnson testified that the Defendant did

not live at the address where he executed the search warrant.

On cross-examination, Officer Johnson testified that his notes indicated that only one cell

phone was taken from the Defendant. He agreed that, when he arrived at the location, the Defendant

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was two doors down from apartment C, on the corner stoop. He said that he did not find any drugs

on the Defendant’s person.

Ken Spencer, a sergeant with the Metro Police Department, testified that he was the K-9

handler in this case, and he assisted in the execution of the search warrant at 1612 16th Avenue. He

said that he and his drug K-9, named Rocky, were trained through the United States Police K-9

Association. He explained that he and Rocky had to be re-certified every year as a K-9 handler team,

and he said that they were certified on September 28, 2001. He said that he was called to the 16th

Avenue location to perform a vehicle search on a black Monte Carlo. He testified that the dog

alerted him to the passenger’s side door, by scratching, which informed him that the dog detected

an odor of narcotics coming from the vehicle. Sergeant Spencer testified that he opened the

passenger side door of the Monte Carlo, and the dog immediately went to the rear passenger side

floorboard and indicated again on a sack, which contained a large amount of money. He said the dog

also alerted him to the center console of the vehicle, where he found a bag of white powder that later

tested positive for cocaine. Sergeant Spencer said that it is common for money to get contaminated

with the scent of narcotics, which was why the dog alerted him to the money. He testified that he

also found dryer sheets in the car, which drug dealers believe mask the scent of the narcotics.

Donna Flowers testified, as an expert in forensic chemistry, that she works at the Tennessee

Bureau of Investigations (“TBI”) Crime Laboratory and she analyzes substances that various law

enforcement agencies submit for the presence of controlled substances or drugs. Flowers said that

she analyzed the white powder in this case, and she concluded that the powder was cocaine, a

schedule two controlled substance, and it weighed 59.2 grams.

Scott Cherry, a land surveyor, testified that he owns his own business and one of the primary

functions of that business is to conduct engineering surveys. He identified a map from the Metro

Planning Commissioner and said that it is normal procedure to rely on such a map. He testified that

a police officer took him to the location of the search warrant, 1612 16th Avenue, and he measured

the distance from the Wharton School to that location. Cherry testified that he determined the

property lines of the school, and he used a Global Positioning System (“GPS”) to measure from two

corners of the school property line to the location at 1612 16th Avenue. He admitted that he does

not have specialized training in the use of GPS but an employee at his business received such

training and that employee taught him how to use the GPS system. He said that he uses this

equipment about three or four times per week. Cherry testified that, based on his two measurements

of the shortest distance and the distance from the corner of the school property, the distances were

939 feet and 947 feet from the location at 1612 16th Avenue1. He said that the measurements were

accurate to within about one inch. On cross-examination, Cherry testified that the Wharton School

is not visible from the location on 16th Avenue. He agreed that between the 16th Avenue location

and the school property there is 17th Avenue, 18th Avenue, two alleys, and four rows of houses.

1

Tennessee Code Annotated section 39-17-432 provides for enhanced punishment for drug offenses that occur

on the grounds or facilities of any school or within one thousand feet (1,000') of the real property that comprises a public

or private elementary school, middle school, or secondary school.

-4-

Based upon this evidence the jury found the Defendant guilty of possession with the intent

to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-Free School Zone

and of possession of a firearm with the intent to employ it in the commission of or escape from an

offense. The trial court sentenced the Defendant to thirty-six years, at 100%, for the possession with

the intent to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-Free

School Zone and three years, at 35%, for the possession of a firearm with the intent to employ it in

the commission of or escape from an offense, and ordered that the sentences run concurrently.

II. Analysis

On appeal, the Defendant contends that: (1) the trial court erred by denying the Defendant’s

motion to suppress; (2) the evidence is insufficient to support the Defendant’s convictions; (3) the

trial court erred in admitting the testimony of a surveyor pertaining to the use of GPS in determining

the distance between the location of the offense and the real property that comprises Wharton

School; and (4) the trial court erred when it sentenced him.

A. Motion to Suppress

Pretrial, the Defendant filed a motion to suppress the weapon found in the Defendant’s

vehicle. As grounds, the Defendant alleged: (1) the law enforcement officers lacked any authority

to search the Defendant; and (2) the law enforcement officers entered the vehicle without authority

and without a warrant. Specifically, the Defendant argues that the search conducted of him and the

subsequent search of the vehicle was warrantless, nonconsensual, and did not fall within any of the

recognized exceptions to the Fourth Amendment protection against unreasonable searches and

seizures and, as such, that all evidence derived from that search is inadmissible. The trial court

conducted an evidentiary hearing and denied the motion. The trial court held:

My recollection . . . is that once an individual denies any interest in the automobile,

they have the right to search and to use anything, even though he might come along

later and prove that it was his automobile or that he had interest in the automobile.

....

And the proof right now before me is that everybody out there denied

anything to do with the automobile. That’s the proof before me.

....

[T]wo officers have testified that everybody said they didn’t have anything

to do with that vehicle, whose automobile is that? I don’t know, is what they said.

Then later on this gentleman says, after the search, this gentleman says it’s my

mother’s automobile. That’s where we are as far as the automobile is concerned.

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The findings of fact made by the trial court at the hearing on a motion to suppress are binding

upon this court unless the evidence contained in the record preponderates against them. State v.

Ross, 49 S.W.3d 833, 839 (Tenn. 2001). The trial court, as the trier of fact, is able to assess the

credibility of the witnesses, determine the weight and value to be afforded the evidence and resolve

any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The prevailing party

is entitled to the strongest legitimate view of the evidence and all reasonable inferences drawn from

that evidence. State v. Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). However, this Court is not bound

by the trial court’s conclusions of law. State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998). The

application of the law to the facts found by the trial court are questions of law that this Court reviews

de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000). The defendant has the burden of

establishing that the evidence contained in the record preponderates against the findings of fact made

by the trial court. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

The Fourth Amendment to the United States Constitution, made applicable to the states by

the Fourteenth Amendment, provides:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath or affirmation, and

particularly describing the place to be searched, and the person or things to be seized.

Article I § 7 of the Tennessee Constitution provides that:

[P]eople shall be secure in their persons, houses, papers and possessions, from

unreasonable searches and seizures; and that general warrants, whereby an officer

may be commanded to search suspected places, without evidence of the fact

committed, or to seize any person or persons not named, whose offences are not

particularly described and supported by evidence, are dangerous to liberty and ought

not to be granted.

Both of these constitutional provisions are intended to “‘safeguard the privacy and security of

individuals against arbitrary invasions of government officials.’” State v. Randolph, 74 S.W.3d 330,

334 (Tenn. 2002) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)).

1. Stop of the Defendant

Under both federal and state constitutions, a warrantless search or seizure is presumed

unreasonable, and evidence obtained from such a seizure should be suppressed unless the State

demonstrates by a preponderance of the evidence that the search or seizure was conducted pursuant

to one of the narrowly-defined exceptions to the warrant requirement. See State v. Yeargan, 958

S.W.2d 626, 629 (Tenn. 1997) (citing Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)).

However, should the search or seizure fall into one of these narrow exceptions, the fruits of that

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search and seizure may be properly admitted into evidence. State v. Shaw, 603 S.W.2d 741, 743

(Tenn. Crim. App. 1980). One such exception is the “stop-and-frisk situation,” Terry v. Ohio, 392

U.S. 1, 19 (1968), whereby an officer may make an investigatory stop when the officer has a

reasonable suspicion, supported by specific and articulable facts, that a criminal offense has been or

is about to be committed. Id.; State v. Watkins, 827 S.W.2d 293, 294 (Tenn. 1992).

We must first determine whether the detention of the Defendant by the police officer

amounted to a seizure. If so, we must then determine whether the officer possessed an articulable

reasonable suspicion for an investigatory stop under Terry and its progeny. “Only when the officer,

by means of physical force or show of authority, has in some way restrained the liberty of a citizen

may we conclude that a ‘seizure’ has occurred.” Terry, 392 U.S. at 19 n.16; State v. Hord, 106

S.W.3d 68, 70 (Tenn. Crim. App. 2003). The Supreme Court stated that “a person has been ‘seized’

within the meaning of the Fourth Amendment only if, in view of all of the circumstances

surrounding the incident, a reasonable person would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980); Hord, 106 S.W.3d at 71. In the case under

submission, it is clear that the Defendant was “seized” within the meaning of the State and Federal

Constitutions. Officer Jones testified that he ordered the Defendant to return to the apartment, made

the Defendant lay on the ground, and handcuffed the Defendant. Therefore, it is clear that the

Defendant was “seized” within the meaning of the Terry decision. Thus, for the seizure and

subsequent search of the Defendant to be constitutionally permissible, the officer must have had

reasonable suspicion, supported by articulable facts, that the Defendant had committed, or was about

to commit a criminal offense.

Initially, we must acknowledge the less demanding standard of “reasonable suspicion,” as

compared with “probable cause.” Reasonable suspicion “can be established with information that

is different in quantity or content than that required to establish probable cause [and] . . . can arise

from information that is less reliable than that required to show probable cause.” Alabama v. White,

496 U.S. 325, 330 (1990); see also Yeargan, 958 S.W.2d at 632. In evaluating whether a police

officer’s reasonable suspicion is supported by specific and articulable facts, a court must consider

the totality of the circumstances. United States v. Cortez, 449 U.S. 411, 417 (1981); Watkins, 827

S.W.2d at 294. “This [may] include . . . but is not limited to, objective observations, information

obtained from other police officers or agencies, information obtained from citizens, and the pattern

of operation of certain offenders.” Watkins, 827 S.W.2d at 294; see also Cortez, 449 U.S. at 418.

Also, a court must consider “the rational inferences and deductions that a trained officer could draw

from the facts and circumstances known to him [or her].” Watkins, 827 S.W.2d at 294; see also

Terry, 392 U.S. at 27 n.23.

In our view, under this totality of the circumstances test, Lieutenant Jones’s warrantless

seizure and search of the Defendant was permissible as a “stop and frisk” exception to the warrant

requirement. When Lieutenant Jones arrived at the apartment building where a search warrant was

to be executed, he observed the Defendant and three other men on the stoop of another apartment

in the building, gambling with dice. It was the lieutenant’s responsibility to control these four men

while the other officers searched apartment C. Controlling these men was necessary to ensure the

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other officers’ safety. As Lieutenant Jones approached these men to control them, the Defendant

began to put something in his pockets and walk away from the lieutenant. The Defendant then began

to run down the street, and the lieutenant drew his gun and ordered the Defendant to get on the

ground. The Defendant went about fifty yards, then stopped, and returned to the apartment. The

Defendant’s behavior established a reasonable suspicion that the Defendant was engaged in unlawful

conduct, therefore, Lieutenant Jones was justified in ordering the Defendant to return to the

apartment. Further, Officer Johnson testified that he “did a pat down” search of the Defendant for

officer safety, and he noticed a bulge in the Defendant’s pants. The officer removed the bulge which

was $5921 in currency, and $2000 of that amount was wrapped in a white bag with rubber bands

around it. We conclude, therefore that the search of the Defendant was permissible based on the

“stop-and-frisk” exception to the warrant requirement. Accordingly, we must next determine

whether the subsequent search of the Defendant’s vehicle was also permissible.

2. Search of the Vehicle

The Defendant further contends that the police officers had no authority or basis to conduct

a search of his car. Our Supreme Court has previously held that “a canine sweep around the

perimeter of a vehicle which has been legally detained does not constitute a search, and thus, does

not require probable cause or reasonable suspicion . . . .” State v. England, 19 S.W.3d 762, 764

(Tenn. 2000); see also Timothy Rathers v. State, No. W2000-02177-CCA-R3-PC, 2002 WL

1549771, at *6 (Tenn. Crim. App., at Jackson, Jan. 18, 2002), no perm. app. filed. In order to find

that an officer had probable cause to search a vehicle based upon a positive alert by a trained drug

detection dog, the dog’s reliability must be established. Id. at 768; see also State v. John David

Smith, No. W2003-01200-CCA-R3-CD, 2004 WL 737532, at *4 (Tenn. Crim. App., at Jackson,

April 6, 2004), perm. app. denied (Tenn. 2004). This includes consideration of the dog’s training,

the officer’s training and experience with the dog, and the record of false negative and false positive

alerts. Id.

At trial, Officer Johnson testified that he was present when Lieutenant Jones inquired about

the vehicle parked out front, and Officer Johnson said that there was no answer from any of the men

about the vehicle. Based on their findings from the initial search of the Defendant, including a key

that fit the vehicle, the officers subsequently contacted the K-9 unit to perform a sweep on the

vehicle. At trial, Officer Spencer testified about Rocky’s training and his own training as a handler

of K-9 dogs. The officer stated that Rocky was assigned to him in 2001, and he and Rocky are

recertified every year as a K-9 handler team by the United States Police K-9 Association. We

conclude that, since training and reliability were established, the police had probable cause to search

the vehicle upon the canine’s alert on the passenger’s door. Id. at 768-69. This issue is without

merit.

B. Sufficiency of the Evidence

The Defendant contends that the evidence was insufficient to support his convictions for

possession with the intent to sell twenty-six (26) grams or more of a substance containing cocaine

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in a Drug-Free School Zone and of possession of a firearm with the intent to employ it in the

commission of or escape from an offense. Specifically, the Defendant contends that the evidence

is insufficient to support a finding of constructive possession of the automobile or its contents

because no one saw the Defendant in or near the vehicle and there is no evidence that the Defendant

attempted to exercise control over the automobile.

When an accused challenges the sufficiency of the evidence, an appellate court’s standard

of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324 (1979); State v. Carter, 121

S.W.3d 579, 588 (Tenn. 2003); State v. Smith, 24 S.W.3d 274, 278 (Tenn. 2000). This rule applies

to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both

direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.

1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions

concerning the credibility of the 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. Liakas, 286 S.W.2d at 859.

This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Because a verdict of guilt against a defendant

removes the presumption of innocence and raises a presumption of guilt, the convicted criminal

defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty

verdict. Id.; see State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).

1. Possession with the Intent to Sell Twenty-six (26) Grams or More of a Substance

Containing Cocaine in a Drug-Free School Zone

To convict the Defendant of the offense of possession with the intent to sell twenty-six (26)

grams or more of a substance containing cocaine in a Drug-Free School Zone, the State was required

to prove that the Defendant: (1) knowingly possessed a substance containing cocaine within one

thousand (1000) feet of real property that comprised a public or private school; (2) with the intent

to sell; and (3) the amount of the substance containing cocaine possessed equaled or exceeded

twenty-six grams. Tenn. Code Ann. §§ 39-17-417 (i)(5), -432 (b).

We must first determine whether the State established beyond a reasonable doubt that the

Defendant knowingly possessed a substance containing cocaine within 1000 feet of a school zone.

Tennessee Code Annotated section 39-17-418(a), prohibiting possession of a controlled substance,

“is not restricted to proof of actual possession, and evidence of either constructive possession or

other control over the substance is sufficient to establish this element.” State v. Ross, 49 S.W.3d

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833, 845 (Tenn. 2001). Constructive possession of a drug is based upon the power and intention to

exercise dominion and control over the drug, either directly or through others. Id. “In other words,

‘constructive possession is the ability to reduce an object to actual possession.’” Id. at 845 (quoting

State v. Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996) (citations omitted)). “As such,

although a defendant’s mere presence at a place where controlled substances are found will not

support an inference of possession, a person in possession of the premises where controlled

substances are found may also be presumed to possess the controlled substances themselves.” Id.

(citation omitted).

Viewing the evidence in the light most favorable to the State, the evidence proves that the

Defendant had constructive possession of the substance containing cocaine that was found in the

Monte Carlo. See State v. Lonnie Walter Hurd, No. E2002-00832-CCA-R3-CD, 2003 WL

22303083, at *4 (Tenn. Crim. App., at Knoxville, Oct. 8, 2003), no perm. app. filed; see also State

v Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995) (holding that “[k]nowledge may be inferred

from control over the vehicle in which the contraband is secreted”). After conducting a legal search

of the Defendant, officers found a key to the Monte Carlo in his pocket. After a K-9 dog alerted to

the presence of drugs in the Monte Carlo, the officers then conducted a legal search of the vehicle

using the Defendant’s key. When the officers searched the interior of the vehicle, they found a

Sprint cell phone bill addressed to the Defendant. The Monte Carlo sales receipt was also found in

the vehicle and was signed by the Defendant’s mother, who was not present at the time these events

occurred. The officers found a large quantity of money and a bag containing cocaine in the car.

From this evidence, we conclude that a rational trier of fact could have found that the Defendant was

in constructive possession of the Monte Carlo and its contents. Further, Scott Cherry testified that,

according to his two GPS measurements, the distance to the school from the property was between

939 feet and 947 feet. Therefore, we conclude that there was sufficient evidence that the Defendant

knowingly possessed cocaine within a Drug-Free School Zone.

Next, we must determine whether the State established beyond a reasonable doubt that the

Defendant had the intent to sell the cocaine. When the police officers searched the Defendant’s

vehicle, they found a bag containing between fifty and sixty grams of cocaine, approximately

$38,000 in cash, three cell phones, drug scales, baggies, paperwork on the vehicle, and dryer sheets.

Lieutenant Jones and Officer Johnson testified that these items are consistent with common

characteristics of people who possess drugs to sell. “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; see also State v. Samuel L.

Giddens, No. M2002-00163-CCA-R3-CD, 2004 WL 2636715, at * 4 (Tenn. Crim. App., at

Nashville, Nov. 15, 2004), no perm. app. filed. We conclude that this evidence is sufficient for the

jury to conclude beyond a reasonable doubt that the Defendant possessed the cocaine with the intent

to sell it.

Finally, we must determine whether the State showed beyond a reasonable doubt that the

substance containing cocaine possessed by the Defendant equaled or exceeded twenty-six grams.

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Lieutenant Jones and Officer Johnson both testified that they recovered between fifty and sixty grams

of cocaine from the Defendant’s car. Flowers testified that she analyzed the substance in this case

and concluded that it was cocaine and it weighed 59.2 grams. The evidence clearly shows that the

amount of cocaine possessed by the Defendant exceeded twenty-six grams.

We conclude that the evidence is sufficient to prove that the Defendant possessed more than

twenty-six grams of a substance containing cocaine within 1000 feet of a Drug-Free School Zone.

Accordingly, this issue is without merit.

2. Possession of a Firearm with the Intent to Employ it in the Commission of or Escape

from an Offense

A person commits the crime of possession of a firearm in the commission of or escape from

an offense when the person “possesses any deadly weapon with intent to employ it in the

commission of or escape from an offense.” Tenn. Code Ann. § 39-17-1307(c)(1) (2003)2.

Therefore, in order for the State to convict the Defendant of this crime, it had to prove beyond a

reasonable doubt that the Defendant possessed a deadly weapon, and the Defendant possessed the

deadly weapon with the intent to employ it in the commission of or escape from an offense.

Additionally, this Court has stated that “[p]ossession may be actual or constructive.” State v. Steven

D. Pittman, No. M1999-00320-CCA-R3-CD, 2000 WL 374755, at *3 (Tenn. Crim. App., at

Nashville, Apr. 7, 2000), perm. app. dismissed (Tenn. July 31, 2000). Constructive possession is

essentially the ability to reduce an object to actual possession. Id.

In State v. Brentol Calvin James, No. M1999-02533-CCA-R3-CD, 2000 WL 1763686 (Tenn.

Crim. App., at Nashville, Nov. 30, 2000), no perm. app. filed, this Court examined what is required

to sustain a conviction of possession of a weapon during the commission of an offense. James, 2000

WL 1763686, at *3-4. This Court found that, for a conviction, “the State additionally had to prove

that the appellant possessed the weapon with the intent to employ it in the commission of, or escape

from, an offense.” Id. at *4. This Court determined that the only evidence of the appellant’s “intent

to employ” was an officer’s testimony that the appellant’s co-defendant was leaning into the

appellant’s car when police approached. Id. This Court concluded that “the State failed to prove that

the appellant possessed the pistol with the intent to employ it during the commission of or escape

from an offense.” Id.

Similarly, in the case under submission, the State proved that the Defendant constructively

possessed the deadly weapon. The Defendant possessed the key to the car in which the handgun was

located, and the Defendant could have obtained actual possession of the handgun at any time. In

order to convict the Defendant, the State additionally had to prove that the Defendant possessed the

2

Although the offense occurred in 2001, we note that the 2003 statute is identical to the statute in effect at the

time of the offense.

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weapon with the intent to employ it in the commission of, or escape from, an offense. Based on this

record, there was no evidence of the Defendant’s “intent to employ” the weapon. The weapon was

not found in the initial search of the vehicle but was subsequently found between the driver’s seat

and the center console of the vehicle. There is no evidence that the Defendant attempted to obtain

or use the weapon. We conclude that the evidence is insufficient to sustain the Defendant’s

conviction for possession of a weapon with the intent to employ it during the commission of or

escape from an offense, and, therefore, we reverse the Defendant’s conviction for this offense.

C. Admission of Testimony

The Defendant contends that the trial court erred when it allowed a surveyor to testify about

the distance between the location where the Defendant possessed cocaine and the real property that

comprises Wharton School. Specifically, the Defendant contends that the testimony of Scott Cherry

that the Defendant was within 1000 feet of the real property that comprises Wharton School when

he was in possession of cocaine is inadmissible because Cherry was not an expert on GPS devices,

and such testimony requires a scientific foundation. The State contends that the foundation for the

admission of this evidence was properly laid, and the evidence is admissible. At trial, the following

exchange took place between defense counsel and the trial court about Cherry’s testimony:

THE COURT: [Counsel], as in the situation with DUI’s, the Court has said time and

time again that it is not necessary for the operator of a drug testing unit to have the

underlying expertise as to the system. He must only be an operator and this man has

testified that he is qualified to operate this system.

[COUNSEL]: Your Honor, I respectfully would distinguish those cases, I mean, they

did think Sensing and others introduced reliability about particular instruments. And

I don’t think there was a question about the underlying science. Here there is a

question about the underlying - -

THE COURT: There has always been a question about the underlying science on

breath meters. As long as I can remember, as long as they have been in use, there

have been questions about the underlying science. And the Court’s have said that it

is not necessary for the operator to know the underlying science of the meter.

Questions regarding the admissibility, qualifications, relevancy and competency of expert

testimony are left to the discretion of the trial court. McDaniel v. CSX Transportation, Inc., 955

S.W.2d 257, 263-64 (Tenn. 1997). Pursuant to Rule 702, Tennessee Rules of Evidence, “[i]f

scientific, technical, or other specialized knowledge will substantially assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion or

otherwise.” Rule 703, Tennessee Rules of Evidence, requires the expert’s opinion to be supported

by trustworthy facts or data “of a type reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject.” The trial court may apply, in its discretion, the

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following factors to determine reliability: (1) whether the evidence about which the expert is

testifying has been tested and the methodology with which it has been tested; (2) whether the

evidence has been subjected to peer review or publication; (3) whether a potential rate of error is

known; (4) whether the evidence is generally accepted in the community involved in the body of

specialized knowledge; and (5) whether the expert’s research in the field has been conducted

independent of litigation. McDaniel, 955 S.W.2d 257 at 265; see also State v. Stevens, 78 S.W.3d

817, 834 (Tenn. 2002). The determining factor is “whether the witness’s qualifications authorize

him or her to give an informed opinion on the subject in issue.” Stevens, 78 S.W.3d at 834. A trial

court’s ruling on the admissibility of such evidence may be overturned on appeal only if the

discretion is exercised arbitrarily or abused. Id. at 832.

The record reflects that Cherry has been a licensed surveyor for sixteen years, and he passed

a sixteen hour test that covered all aspects of surveying. He has also taken courses in surveying and

civil engineering. He owned his own surveying business for twelve years, and his business did

engineering surveys for new roads, sewers, subdivisions, and stores. Cherry used a Tremble 4000

GPS device to measure the distance between 1612 16th Avenue North and the Wharton School.

Cherry testified that GPS was developed by the Department of Defense and is based on twenty-four

satellites that orbit and result in very precise measurements. He said that one of his employees

received a forty-hour specialized training course to use the equipment, and that employee taught him

how to use the equipment. Cherry said that he had used the system for seven years, and it is accurate

to within one and a half inches in three miles. Based on the record, the testimony of this witness was

thorough and sufficient to qualify him to testify in the field of surveying and measuring distances,

even though he is not an expert on GPS. We conclude that the trial court did not abuse its discretion

in allowing the testimony of this witness to prove that the offense occurred within one thousand feet

of the real property that comprises Wharton School. This issue is without merit.

D. Sentencing

The Defendant, relying on Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004),

contends that the trial court erred when it enhanced his sentence above the presumptive minimum.

The State contends that the Defendant has waived this issue. Additionally, the State contends that

the Defendant has admitted all of the enhancement factors applied by the trial court, and, therefore,

Blakely has no effect on the Defendant’s sentence. The record reflects that the trial court found, and

the parties agreed, that the Defendant was a Range II multiple offender. Additionally, the trial court

enhanced the Defendant’s convictions based upon three enhancement factors. First, the trial court

found that the Defendant has a previous history of criminal convictions or criminal behavior in

addition to those necessary to establish the appropriate range. See Tenn. Code Ann. § 40-35-114(2)

(2003). The trial court also found that the Defendant has a previous history of unwillingness to

comply with the conditions of a sentence involving release in the community. See Tenn. Code Ann.

§ 40-35-114(9). Further, the trial court found that the felony was committed while the Defendant

was on probation from a prior felony conviction. See Tenn. Code Ann. § 40-35-114(14). The trial

court determined that no mitigating factors applied. The trial court sentenced the Defendant to

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thirty-six years, at 100%, for possession with the intent to sell twenty-six (26) grams or more of a

substance containing cocaine in a Drug-Free School Zone.3

When a defendant challenges the length or manner of service of a sentence, it is the duty of

this Court to conduct a de novo review of the record with a presumption that “the determinations

made by the court from which the appeal is taken are correct.” Tenn. Code Ann. § 40-35-401(d)

(2003). 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. Ross,

49 S.W.3d 833, 847 (Tenn. 2001) (quoting State v. Pettus, 986 S.W.2d 540, 543 (Tenn. 1999)); State

v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). The presumption does not apply to the legal

conclusions reached by the trial court in sentencing a defendant or to the determinations made by the

trial court which are predicated upon uncontroverted facts. State v. Dean, 76 S.W.3d 352, 377

(Tenn. Crim. App. 2001); State v. Butler, 900 S.W.2d 305, 311 (Tenn. Crim. App. 1994); State v.

Smith 891 S.W.2d 922, 929 (Tenn. Crim. App. 1994). In conducting a de novo review of a sentence,

we must consider: (a) any evidence received at the trial and/or sentencing hearing; (b) the

presentence report; (c) the principles of sentencing; (d) the arguments of counsel relative to

sentencing alternatives; (e) the nature and characteristics of the offense; (f) any mitigating or

statutory enhancement factors; (g) any statements made by the defendant on his or her own behalf;

and (h) the defendant’s potential or lack of potential for rehabilitation or treatment. Tenn. Code Ann.

§ 40-35-210 (2003); State v. Taylor, 63 S.W.3d 400, 411 (Tenn. Crim. App. 2001). The party

challenging a sentence imposed by the trial court has the burden of establishing that the sentence is

erroneous. Tenn. Code Ann. § 40-35-401(d), Sentencing Comm’n Cmts.

In the case under submission, the Defendant was convicted of a Class A felony. The sentence

range for a Class A felony, Range II offender, is twenty-five to forty years. Tenn. Code Ann. § 40-

35-112(b)(1) (2003). In calculating the sentence for a Class A felony, the presumptive sentence is

the midpoint of the range, in the absence of enhancement and mitigating factors. Tenn. Code Ann.

§ 40-35-210 (c) (2003). If there are enhancement factors but no mitigating factors, the sentence must

be set at or above the midpoint of the range. Tenn. Code Ann. § 40-35-210(d). If there are

mitigating factors but no enhancement factors, the trial court must set a sentence at or below the

midpoint of the range. Tenn. Code Ann. § 40-35-210(d). If there are both mitigating and

enhancement factors, the trial court must adjust the sentence based on the weight it assigns to each

factor. Tenn. Code Ann. § 40-35-210(d).

In the case under submission, we conclude that there is ample evidence that the trial court

considered the sentencing principles and all relevant facts and circumstances. Therefore, we review

its decision de novo with a presumption of correctness. Accordingly, so long as the trial court

complied with the purposes and procedures of the 1989 Sentencing Act and its findings are

supported by the factual record, this Court may not disturb this sentence even if we would have

3

Because we have reversed the conviction for possession of a weapon with the intent to employ it during the

commission of, or escape from, an offense, we refrain from discussing the appropriateness of the sentence imposed for

that offense.

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preferred a different result. See Tenn. Code Ann. § 40-35-210, Sentencing Comm’n Cmts; State v.

Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). We note that the defendant bears the

burden of showing that the sentence is improper. Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Cmts.; Ashby, 823 S.W.2d at 169.

The United States Supreme Court’s recent opinion in Blakely calls into question the

continuing validity of our current sentencing scheme. In that case, the Court, applying the rule in

Apprendi v. New Jersey, 566 U.S. 466, 490 (2000), struck down a provision of the Washington

sentencing guidelines that permitted a trial judge to impose an “exceptional sentence” upon the

finding of certain statutorily enumerated enhancement factors. 124 S. Ct. at 2537. The Court

observed that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge

may impose solely on the basis of the facts reflected in the jury verdict or admitted by the

defendant.” Id. Finally, the Court concluded that “every defendant has a right to insist that the

prosecutor prove to a jury [beyond a reasonable doubt] all facts legally essential to the punishment.”

Id. at 2539. This Court has held that Blakely violations are subject to a Constitutional harmless error

analysis. State v. Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004 WL 2726034, at

*24 (Tenn. Crim. App., at Nashville, Nov. 30, 2004), no perm. app. filed. “While it is true that

Blakely concerns the inviolate right to a jury trial, the cornerstone upon which our criminal justice

system was constructed, we cannot say that a jury’s failure to determine an enhancement factor

‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining

guilt or innocence.’” Id. (quoting Needer v. United States, 527 U.S. 1, 9 (1999)). Thus, before we

modify a defendant’s sentence, we will “review the Blakely errors to determine whether they were

harmless beyond a reasonable doubt.” Id.; see Chapman v. California, 386 U.S. 18, 24 (1967).

First, we note that the Defendant has not waived this issue. We have held that, because

Blakely announced a new rule, any defendant whose case was still on direct appeal could raise this

issue. Walters, 2004 WL 2726034, at *19. We explained that, although Blakely was the Supreme

Court’s explanation of its prior decision in Apprendi, the Tennessee Supreme Court had previously

announced that the rule in Apprendi did not affect our State’s sentencing scheme. Id. As a result,

the mandate of Blakely created a new rule in Tennessee. Id. Furthermore, in Walters, this Court

held that Blakely could be raised in all cases on direct appeal, because a violation of this mandate

was plain error arising from the deprivation of the Constitutional right to a jury trial. Id.; see also

State v. Charles Benson, No. M2003-02127-CCA-R3-CD, 2004 WL 2266801, at *7–10 (Tenn.

Crim. App., at Nashville, Oct. 8, 2004), no perm. app. filed. Thus, because the Defendant did not

waive this issue, the question becomes whether the sentence imposed by the trial court violates the

United States Supreme Court mandate in Blakely.

The trial court applied enhancement factor (2) based on the Defendant’s admission in the

presentence report of previous criminal behavior, specifically, that he had used marijuana on several

occasions. We note that this Court has held that there is a distinction for Blakely purposes between

previous criminal convictions and a previous history of criminal behavior. State v. Michael Paul

Mondell, No. E2003-02791-CCA-R3-CD, 2005 WL 378978, at *4 (Tenn. Crim. App., at Knoxville,

Feb. 17, 2005), no perm. app. filed. In that case, we held the trial court improperly applied this

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enhancement factor based upon the Defendant’s previous history of criminal behavior when the

Defendant had no prior record of criminal convictions. Accordingly, in the case under submission,

the trial court could not properly apply this enhancement factor based upon the Defendant’s previous

marijuana use unless this enhancement factor was admitted by the Defendant or submitted to a jury.

The record reflects that because the Defendant’s two prior convictions were used to establish

that he was a Range II multiple offender, the court’s application of factor (2) was necessarily based

upon the Defendant’s statement to the presentence report officer that he used marijuana on multiple

occasions. We conclude that the trial court erred in its application of enhancement factor (2) because

the Defendant’s admission to prior drug use in the pre-sentence report does not contain “sufficient

guarantees of trustworthiness . . . without offending Blakely.” State v. Abel Torres, No. M2004-

00559-CCA-R3-CD, 2005 WL 292431, at *8 (Tenn. Crim. App., at Nashville, Feb. 4, 2005), no

perm. app. filed. Therefore, the trial court’s application of this enhancement factor was error, and

we have concluded that the error was not harmless beyond a reasonable doubt.

The trial court also applied enhancement factor (9), that the Defendant “has a previous history

of unwillingness to comply with the conditions of a sentence involving release in the community,”

the trial court applied this factor because the Defendant committed this crime less than two years

after he was previously convicted of possession of cocaine, and “he was back on the street doing the

same thing [a]s what he was doing on some form of release . . . .” We conclude that this factor was

not admitted by the Defendant or found by a jury. Furthermore, as it is subject to Blakely, we

conclude that the trial court erred when it applied this enhancement factor. This error, however, was

harmless beyond a reasonable doubt. The Defendant’s presentence report, which was admitted as

an exhibit without objection during the sentencing hearing, indicates that the Defendant has had his

probation revoked on one occasion. The Defendant was convicted of selling drugs and was

sentenced to eight years on probation on July 16, 1998. This Defendant was found guilty of a

probation violation, and he was ordered to serve the sentence in prison. Further, the Defendant was

also convicted of possession of cocaine on May 17, 1999 and was sentenced to twelve years.

Accordingly, we conclude that the trial court’s application of this factor was harmless beyond a

reasonable doubt.

Similarly, we conclude that the trial court erred when it applied enhancement factor (14).

Although the Defendant’s brief concedes that he was on probation, there is no evidence in the record

that the Defendant admitted this factor during his trial or sentencing hearing. We conclude,

therefore, that this factor was not admitted by the Defendant or found by a jury. We therefore

conclude that the trial court erred when it applied this enhancement factor. This error, however, was

harmless beyond a reasonable doubt because the Defendant’s presentence report, which, as stated

above, was admitted as an exhibit without objection during the sentencing hearing, indicates that the

Defendant was on probation for selling drugs at the time this offense occurred. Accordingly, we

conclude that the trial court’s erroneous application of this factor was harmless beyond a reasonable

doubt.

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The trial court’s erroneous application of two enhancement factors were harmless beyond a

reasonable doubt, and, therefore, we conclude that the Defendant’s sentence need not be modified.

This issue is without merit.

III. Conclusion

In accordance with the foregoing authorities and reasoning, we reverse the Defendant’s

conviction and sentence for possession of a firearm with the intent to employ it in the commission

of or escape from an offense, and we affirm the Defendant’s conviction and sentence for possession

with the intent to sell twenty-six (26) grams or more of a substance containing cocaine in a Drug-

Free School Zone.

________________________________

ROBERT W. WEDEMEYER, JUDGE

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