State of Tennessee v. Larenzo DeShawn Harris

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 9, 2002 Session

STATE OF TENNESSEE v. LARENZO DESHAWN HARRIS1

Direct Appeal from the Circuit Court for Carroll County

No. 01CR-1682 C. Creed McGinley, Judge

No. W2001-02626-CCA-R3-CD - Filed August 30, 2002

The defendant was convicted of possession of a Schedule II controlled substance with the intent to

manufacture, deliver, or sell, a Class B felony; possession of a Schedule VI controlled substance with

the intent to manufacture, deliver, or sell, a Class E felony; and possession of drug paraphernalia,

a Class A misdemeanor. Following the denial of his motion for a new trial, he filed a timely appeal

to this court, challenging the sufficiency of the evidence in support of his convictions. We affirm

the defendant’s convictions. However, because the jury assessed, and the trial court imposed, a fine

for possession of a Schedule VI controlled substance that exceeds the statutory maximum, we

remand the case to the trial court for a new jury to be impaneled to assess an appropriate fine in

Count 2 and for entry of a corrected judgment as to the possession of drug paraphernalia conviction

in Count 3.

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

Remanded

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE , JJ., joined.

Stephen D. Jackson, Jackson, Tennessee, for the appellant, Larenzo Deshawn Harris.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Michael

W. Catalano, Associate Solicitor General; G. Robert Radford, District Attorney General; and Eleanor

Cahill, Assistant District Attorney General, for the appellee, State of Tennessee.

1

W e note that the defendant’s first name appears in the record as both “Larenzo” and “Lorenzo.” It is the policy

of this court, how ever, to spell the defendant’s name as it app ears on the indictment.

OPINION

On January 11, 2001, Huntingdon police officers, acting on a tip from a confidential

informant that the defendant, Larenzo Deshawn Harris, was selling cocaine and marijuana from his

residence, executed a search warrant at 199 Sixth Avenue in Huntingdon. Among other items the

officers uncovered in the search were 3.1 grams of cocaine, 37.2 grams of marijuana, $375 in cash,

plastic zip-lock sandwich bags, and a set of hand scales. The defendant was arrested at the scene,

and subsequently indicted on one count of possession of a Schedule II controlled substance (cocaine)

with the intent to manufacture, deliver, or sell, a Class B felony; one count of possession of a

Schedule VI controlled substance (marijuana) with the intent to manufacture, deliver, or sell, a Class

E felony; and one count of possession of drug paraphernalia with the intent to use, a Class A

misdemeanor.

Sergeant Johnny Hill of the Huntingdon Police Department testified at the defendant’s

September 7, 2001, trial that he was a criminal investigator with years of experience and training in

the detection of drugs. He said that he obtained the search warrant for the defendant’s residence

based on the tip from the confidential informant, who had provided reliable information in the past,

and on the observations of police officers, who had watched the house for several days and seen a

large amount of traffic coming and going from the front door. He and fellow officers arrived to

execute the warrant at approximately 10:30 p.m. on January 11, 2001, pulling their vehicle into the

front yard of the residence and stepping from it directly onto the porch.

The defendant met the officers at the front door, and was directed to sit on a living room

couch. Another individual who was present in the house when the officers entered ran toward the

back, and an officer followed her. Sergeant Hill remained in the living room, keeping his eyes on

the defendant. As the defendant sat down, Sergeant Hill noticed him bend down and reach under

the couch with one hand, in a motion that Sergeant Hill interpreted as placing an item under the

couch. When Sergeant Hill looked in the area where the defendant had reached, he found “two . .

. small plastic bags rolled up with some crack cocaine in them.” Sergeant Hill said that the total

weight of the cocaine, which was packaged separately, was 3.1 grams, which is about the size of

what is commonly referred to as an “8 ball of cocaine.” He explained that the usual practice is for

smaller sized rocks, often about one-twentieth of a gram, to be broken off a larger eight-ball for

individual sale. He estimated that the total street value of the drug was “12 hundred dollars or

more.”

In addition to the cocaine, Sergeant Hill also found fourteen small sandwich bags of

marijuana, packaged in the typical manner for individual sale, together inside a larger plastic bag that

was underneath the cushion on which the defendant was sitting. He said that the total value of the

marijuana, at $20 per bag, was approximately $280. Officers also seized $375 in cash from the

defendant’s person. Sergeant Hill testified that he had known the defendant for some time, and that,

to his knowledge, he had never had a job. Other items uncovered in the search were a partially

smoked “blunt,” (i.e., marijuana rolled up into a piece of tobacco), several empty plastic zip-lock

bags similar to the ones in which the marijuana was packaged, a set of hand scales used to weigh

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marijuana, and a small two-way radio. Sergeant Hill testified that police officers were increasingly

finding two-way radios used in the drug trade as a method for “lookouts” to radio warnings to drug

dealers about the presence and activities of police officers. He said that the hand scales and some

of the plastic zip-lock bags were discovered in a bedroom that contained a man’s clothing and a jail

property bag with the defendant’s name on it. Other plastic bags were discovered in the kitchen, and

the partially smoked blunt was discovered inside a small box that was in another bedroom. The only

other individuals present in the home when the search was conducted were the defendant’s mother,

Stephanie Harris, and the defendant’s sister. Neither had gone near the couch where the cocaine and

marijuana were found. The defendant’s mother was charged as a codefendant in the case, and

subsequently pled guilty to lesser charges.

Sergeant Hill testified on cross-examination that the house was rented to the defendant’s

aunt, an elderly lady who was not present when the search was executed. To his knowledge and

based upon his observations of the house over the previous few days, the defendant was the only

adult male living in the home. He did not observe anything in the defendant’s hand, either when the

defendant met the officers at the door, or when he sat down on the couch. Nor did he see the

defendant reach into his pockets before he made the gesture that led Sergeant Hill to believe he had

placed something under the couch. Sergeant Hill agreed he probably would have seen the large bag

of marijuana in the defendant’s hand had the defendant placed it under the cushion after the officers

entered the house. He acknowledged that none of the items recovered in the search were

fingerprinted. He said that the defendant’s mother was charged as a codefendant approximately one

week later due to her knowledge of, and participation in, the defendant’s drug selling activities in

the home.

Brian Lee Eaton, a forensic scientist with the Tennessee Bureau of Investigation Crime

Laboratory in Jackson, testified that he received two different substances to analyze in connection

with the case: a plant material, which he determined to be marijuana, and a rock-like substance,

which he determined to be 3.1 grams of cocaine. He identified the substances, which were admitted

as exhibits. He acknowledged on cross-examination that he had not been asked to conduct

fingerprint analyses of the substances.

The defendant elected not to testify, and no witnesses were presented on his behalf. After

deliberating, the jury found him guilty of each count of the indictment, setting fines of $65,000 for

the possession of a Schedule II controlled substance conviction, $50,000 for the possession of a

Schedule VI controlled substance conviction, and $500 for the possession of drug paraphernalia

conviction. Following a sentencing hearing, the trial court sentenced the defendant to concurrent

terms of eleven years in the Department of Correction for possession of a Schedule II controlled

substance, two years in the Department of Correction for possession of a Schedule VI controlled

substance, and eleven months, twenty-nine days in the county jail for possession of drug

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paraphernalia.2 The trial court noted that the defendant had committed the instant offenses while on

probation for a prior conviction for sale of a Schedule II controlled substance. Consequently, the

trial court ordered that the sentences be served consecutively to the defendant’s sentence on the prior

drug conviction.

ANALYSIS

Sufficiency of the Evidence

The sole issue the defendant raises on appeal is whether the evidence was sufficient to

support his convictions. When the sufficiency of the convicting evidence is challenged, the relevant

question of the reviewing court 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

charged beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,

61 L. Ed. 2d 560 (1979); see also State v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v.

Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings 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.”). This rule is

applicable to findings of guilt based on circumstantial, as well as direct, evidence. See State v.

Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961).

In determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978); State v. Hatchett, 560 S.W.2d 627,

630 (Tenn. 1978). Neither does this court substitute its inferences for those of the trier of fact in

circumstantial evidence cases. Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956); Farmer v. State,

574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). To the contrary, we are required to give the State the

strongest legitimate view of the evidence contained in the record, as well as all reasonable inferences

that can be drawn from it in support of the convictions. Cabbage, 571 S.W.2d at 835.

All questions involving the credibility of witnesses, the weight and value to be given the

evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas, 754 S.W.2d

620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by the trial judge,

accredits the testimony of the witnesses for the State and resolves all conflicts in favor of the theory

of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the

presumption of innocence with which a defendant is initially cloaked and replaces it with one of

guilt, so that on appeal, a convicted defendant has the burden of demonstrating that the evidence is

insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

2

Although the defendant was convicted of possession of drug paraphernalia in Count 3 of the indictment, the

judgment form erroneously shows both that the defendant was convicted of this offense and that the charge was

dismissed. Accordingly, although affirming the conviction for this offense, we remand for entry of a corre cted judgm ent.

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The defendant contends that the evidence was insufficient to prove beyond a reasonable

doubt his actual or constructive possession of the drugs and drug paraphernalia found in the home.

He asserts that the proof was not sufficient to show that he placed the cocaine underneath the couch

or possessed or even knew of the marijuana under the cushion. He further asserts that the jail

property bag and male clothing found in the bedroom were not sufficient to establish he was a

permanent resident of the home. He points out that his mother pled guilty to possessing the drugs

and paraphernalia found in the home, and argues that neither his mere presence at the scene, nor

association with his mother, is sufficient to show that he possessed the cocaine, marijuana, and drug

paraphernalia at issue in the case. The State responds that the evidence was sufficient for the jury

to infer the defendant’s constructive and joint possession of the drugs and drug paraphernalia found

in the home.

In order to convict the defendant of possession of a Schedule II controlled substance with the

intent to manufacture, deliver, or sell, a Class B felony, the State had to prove that the defendant

knowingly possessed more than .5 grams of cocaine with the intent to manufacture, deliver, or sell

it. See Tenn. Code Ann. § 39-17-417(a)(4), (c)(1) (1997). To convict the defendant of possession

of a Schedule VI controlled substance with the intent to manufacture, deliver, or sell, a Class E

felony, the State had to show that he knowingly possessed not less than one-half ounce nor more than

ten pounds of marijuana with the intent to manufacture, deliver, or sell it. See Tenn. Code Ann. §

39-17-417(a)(4), (g)(1) (1997). Finally, to convict him of possession of drug paraphernalia, a Class

A misdemeanor, the State had to show that he used or possessed with the intent to use drug

paraphernalia to “plant, propagate, cultivate, grow, harvest, manufacture, compound, convert,

produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale,

or otherwise introduce into the human body a controlled substance[.]” Tenn. Code Ann. § 39-17-

425(a)(1) (1997).

Possession of drugs and drug paraphernalia may occur either alone or jointly with others.

See State v. Copeland, 677 S.W.2d 471, 476 (Tenn. Crim. App. 1984). Possession may also be

constructive as well as actual. See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001); State v.

Transou, 928 S.W.2d 949, 955-56 (Tenn. Crim. App. 1996); State v. Cooper, 736 S.W.2d 125, 129

(Tenn. Crim. App. 1987). “Constructive possession requires that a person knowingly have the power

and the intention at a given time to exercise dominion and control over an object, either directly or

through others. In essence, constructive possession is the ability to reduce an object to actual

possession.” Copeland, 677 S.W.2d at 476 (citation omitted).

An individual’s mere presence in an area in which drugs are found, or association with

another individual in possession of drugs, is not, alone, sufficient to establish constructive

possession. Shaw, 37 S.W.3d at 903 (citing State v. Patterson, 966 S.W.2d 435, 445 (Tenn. Crim.

App. 1997); Cooper, 736 S.W.2d at 129). In this case, however, there was evidence to show that the

defendant was more than the uninformed and unaware visitor to the home he claims to have been.

The defendant was home when the officers arrived to execute the search warrant and met them at

the door. Men’s clothing and a jail property bag bearing the defendant’s name were found in one

of the bedrooms of the house. Having watched the house for several days, Sergeant Hill was not

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aware that any other man lived at the home. The hand scales used to weigh marijuana and plastic

bags similar to those in which the marijuana was packaged were found in the bedroom which, from

every indication, was that of the defendant. Possession of premises in which contraband is found

creates an inference that the possessor had possession of the contraband. See Transou, 928 S.W.2d

at 956; Armstrong v. State, 548 S.W.2d 334, 336 (Tenn. Crim. App. 1976). The cocaine was found

underneath the couch on which the defendant was sitting, in the exact spot where Sergeant Hill had

observed him reaching, and the marijuana was found almost directly underneath the defendant’s

body, under the cushion on which he was sitting. This evidence was sufficient for a rational trier of

fact to infer the defendant’s constructive, joint possession with his mother of the drugs and drug

paraphernalia found in the home.

Moreover, a rational trier of fact could have reasonably concluded from the evidence that the

defendant’s possession of the drugs and drug paraphernalia was for the purpose of drug-selling

activities he was conducting from the home. We, therefore, conclude that the evidence was

sufficient to convict the defendant of possession of cocaine with the intent to manufacture, deliver,

or sell; possession of marijuana with the intent to manufacture, deliver, or sell; and possession of

drug paraphernalia. See State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001) (registration for and

payment for hotel room, plus finding of defendant’s items in the room, and his possession of a room

key, resulted in inference that he possessed drugs in room); Patterson, 966 S.W.2d at 445 (defendants

on the premises and in same areas where cocaine and drug paraphernalia were found constructively

possessed both).

The State has noted that the $50,000 fine imposed for the defendant’s conviction for

possession of a Schedule VI controlled substance exceeds the maximum fine of $5000 authorized

by Tennessee Code Annotated section 39-17-417(g)(1). Because the Tennessee Constitution

provides every citizen the right to have a jury of his peers assess any fine in excess of $50, see Tenn.

Const. art. VI, § 14, this court may not reduce the fine that was erroneously approved and imposed

by the trial court. See State v. Martin, 940 S.W.2d 567, 570-71 (Tenn. 1997). “However, it is

permissible to remand the case for a determination on the issue of the fine alone, so that defendant

may have a jury assess a fine within the statutory limits.” State v. John William Kuhlman, No.

01C01-9702-CC-00059, 1998 Tenn. Crim. App. LEXIS 452, at *9 (Tenn. Crim. App. Apr. 13,

1998), perm. to appeal denied (Tenn. Jan. 19, 1999). Accordingly, we affirm the defendant’s

convictions, but remand the case to the trial court to impanel a jury to fix an appropriate fine in

Count 2 and for entry of a corrected judgment as to the possession of drug paraphernalia conviction

in Count 3.

___________________________________

ALAN E. GLENN, JUDGE

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