The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE June 22, 1999
Cecil Crowson, Jr.
APRIL SESSION, 1999 Appellate C ourt
Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9808-CR-00273
)
Appellee, )
)
) KNOX COUNTY
VS. )
) HON. RAY L. JENKINS
DAYNELLE M. KYLE, ) JUDGE
)
Appe llant. ) (Direct Appeal - Possession of a
) Controlled Substance with Intent to
) Sell)
FOR THE APPELLANT: FOR THE APPELLEE:
DARRYL W. HUMPHREY JOHN KNOX WALKUP
P. O. Box 6655 Attorney General and Reporter
Knoxville, TN 31914
ERIK W. DAAB
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
RANDALL E. NICHOLS
District Attorney General
PAULA GENTRY
Assistant District Attorney
City-County Building
Knoxville, TN 37902
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE
OPINION
On Novem ber 1, 1995, the Knox Co unty Grand Jury indicted Appellant
Dayn elle M. Kyle for one count of posse ssion of .5 grams or more of cocain e with
intent to sell, and one co unt of posses sion of .5 grams or m ore of cocain e with
intent to deliver. After a jury trial on October 27, 1997, Appellant was convicted
of one count of possession of .5 grams or more of cocaine with intent to sell.
After a sentencing hearing on December 11, 1997, the trial court sentenced
Appellant as a Ra nge I stan dard offe nder to a term of tw elve years in the
Tennessee Department of Correction. Appellant challenges his conviction,
raising the following issue: whether the evidence was s ufficien t to sup port his
conviction. After a review of the record, we affirm the judgm ent of the tria l court.
FACTS
Officer Donn a Myn att of the Knox ville Police Department testified that on
May 23, 199 5, she an d som e other o fficers were condu cting su rveillance of a
suspected crack hous e. Myn att and the oth er office rs saw severa l peop le go into
the crack house and when the people came out, the officers stopped them. Most
of the people who came out of the crack house had approximately .25 grams of
cocaine and vario us items conside red to be drug pa raphern alia.
Mynatt testified that at approximately 12:45 a.m., Appellant and two other
individuals came out of the crack house and began drinking beer. Mynatt then
approached the three individuals and stated, “Hey, I w ant to talk to y ou just a
-2-
secon d.” The three individuals then began running in different d irections. M ynatt
then radioed for b ackup as Office r Jame s Quick began pursuit of A ppellant.
W hile Quick was running after Appellant, Mynatt saw Quick point to a telephone
pole past wh ich he ha d ran. Sh ortly therea fter, Appe llant stopped running and
laid down on the groun d. Qu ick the n put h andc uffs on Appe llant. Q uick to ld
Mynatt that Appellant had thrown some cocaine on the ground near the
telephone pole. Q uick se arche d App ellant a nd dis covered ap proxim ately
$500.0 0 in cash .
Mynatt testified that after she and Quick put Appellant in a patrol car, they
returned to the telephone pole. The officers found sixteen small baggies of
cocaine in a larger bag of cocaine. Mynatt estimated that the cocaine had a street
value of $1,000.00.
Mynatt testified that based on her training and experience, the cocaine
found by the telephone pole was unquestionably packaged for resale. Mynatt
based this opinion on the amount of cash Appellant was carrying, the amount of
cocaine, the way that the cocaine was packaged, that Appellant did not have any
drug paraphernalia that he could use to ingest the cocaine himself, and that
Appellant had no “track marks” on his arms that would indicate that he used
drugs on a regular basis.1
Officer Jame s Quick of the Kn oxville Police Depa rtment te stified that during
the surveillance on May 23, 1995, he heard Mynatt yell over the radio that she
1
We note with some irony that Appellant’s innocence of paraphenalia and personal use charges
serve to incriminate him of more serious drug charges.
-3-
was in pursuit of a suspect. Quick saw Mynatt chasing Appellant and Quick
joined the pursuit. Quick then saw Appellant drop what appeared to be a plastic
bagg ie on the ground by a telephone pole in a “well-lit” area. The officer was
never further than twenty feet away from Appellant during the chase and he never
lost sight of A ppellant.
Quick testified that he subsequently found sixteen small baggies of cocaine
and one larger bag of cocaine that were all in a larger ba g. Quick testified that
there was no doubt in his mind that the cocaine was the object that he had seen
Appellant drop. Q uick estim ated that the cocaine had a street value of
$1,600 .00.
Quick testified that in h is opinion, the cocaine was packaged for resale or
delivery. Quick b ased th is opinion on the amount of the cocaine and the
packaging of the cocaine. Quick testified that the amount an d packag ing were
consiste nt with wh at had b een do ne by dru g deale rs in the pa st.
Celeste White of the Tennessee Bureau of Investigation testified that the
materia l in the seve nteen b aggies was 13 .3 gram s of coca ine.
Appellant testified that he had never been in the suspected crack house.
Appellant testified that he was merely in the area when he saw two black men
running, so he decided to run for his own protection. Appellant denied ever
having possession of the cocaine and he stated that the cash he had in his
possession was obtained by gam bling. Appellant admitted that he had never had
any regu lar emp loymen t.
-4-
ANALY SIS
Appellant contends that the evidence was insufficient to support his
conviction. We must disagree.
When an appellant challenges the sufficie ncy of th e evide nce, th is Court
is obliged to review that challenge according to certain well-settled principles. A
verdict of guilty by the jury, approved by the trial judge, accredits the testimony
of the State’s w itnesses and res olves all co nflicts in the testimony in favor of the
State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994). Although an accused
is originally cloaked with a p resump tion of innocenc e, a jury verdict remo ves this
presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913,
914 (Tenn. 1982). Hence, on appeal, the burden of proof re sts with Ap pellant to
demo nstrate the insufficie ncy of the convicting evidenc e. Id. On appeal, “the
[S]tate is entitled to th e strong est legitimate view of th e evide nce a s well a s all
reaso nable and legitimate inferences that m ay be drawn therefrom.” Id. Wh ere
the sufficiency of the evidence is contested on appeal, the relevant question for
the reviewing court is whether any ra tional trier of fact could have found the
accused guilty of every element of the offens e beyon d a reas onable doubt.
Jackson v. Virgin ia, 443 U.S . 307, 319 , 99 S. C t. 2781, 2 789, 61 L. Ed. 2d 560
(1979). In conducting o ur evaluation of the c onvicting evidence, this Cour t is
precluded from reweighing or reconsidering the evide nce. State v. Morgan, 929
S.W.2d 380, 38 3 (Ten n. Crim. A pp. 1996). More over, this Court may not
substitute its own infe rences “for those d rawn by the trier of fact from
circumstantial evidence.” State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Finally, Rule 13(e) of the Tennessee Rules of Appellate Pro cedure
-5-
provides, “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 beyo nd a rea sonab le doub t.”
In this case, Appellant was convicted of possession of .5 grams or more
of cocaine with intent to sell. At the time of the events at issue in this case,
Tenn essee Code Annota ted sectio n 39-17 -417 pro vided, in rele vant part:
(a) It is an offense for a de fendant to kno wingly:
....
(4) Posse ss a con trolled sub stance w ith intent to manufacture,
deliver or sell such controlled substance.
....
(c) A violation of subsection (a) with respect to:
(1) Coca ine is a C lass B felony if th e am ount in volved is point five
(.5) grams or more of any s ubsta nce c ontain ing co caine and, in
addition thereto, may b e fined not m ore than one hundred thousand
dollars ($100,000); and
Tenn. Code Ann. § 39-17-417 (1995). In addition, Tennessee Code Annotated
section 39-17-419 provided:
It may be inferred from the amount of a controlled substance or
substances possessed by an offender, along w ith other rele vant facts
surrounding the arres t, that the controlled su bstance or su bstances w ere
possessed with the purpose of selling or otherwise dispensing. It may be
inferred from circumstances indicating a casual exchange among
individu als 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 ju dge’s charg e, and the jury w ill consider such inferences
along with the nature of the substance possessed when affixing the
penalty.
Tenn. C ode Ann . § 39-17-419 (1995).
First, Appellant contends that the evidence was insufficient to establish that
he ever possessed any cocaine on the night in question. However, Officer Quick
stated that when he was ch asing A ppellant, h e was n ever furthe r than twe nty feet
-6-
away from him and he never los t sight of him . Quick testified that when Appellant
was in a “well-lit” area, he saw Appellant throw w hat ap peare d to be a plas tic
baggie on the ground near a telephone pole. Quick testified that shortly
thereafter, he and Mynatt returned to the telephone pole and found the cocaine.
Finally, Quick testified that there was no doubt in his mind that Appellant was the
person who droppe d the coc aine by th e telepho ne pole . Wh en this eviden ce is
viewed in the light most favorable to the State, as it mus t be, it is clearly sufficient
for a rational jury to conclude beyond a reasonable doubt that Appe llant had
possessed the cocaine.
Second, Appella nt conten ds that ev en if the evid ence w as sufficient to
show that he possessed cocaine, the evidence was still insufficient to establish
that he po sses sed th e coc aine w ith inten t to sell it. W e aga in disagree.
Esse ntially Appella nt argue s that the evidence wa s insufficient becau se there
was no proof that he ever actually sold any cocaine. However, under the express
terms of Tennessee Code Annota ted sectio n 39-17 -419, the State is not required
to introduce any proof of an actual sale in order to prove possession with intent
to sell. Rather, the jury is permitted to in fer that a defen dant h ad inte nt to se ll
based on the am ount of the controlled substance and the surrounding
circum stance s. Tenn . Code Ann. § 3 9-17-41 9 (1995 ).
The evidence in this case showed that Appellant fled from police after he
came out of a suspected crack house. The evidence also showed that Appellant
had been in possession of 13.3 grams of cocaine that was divided into seventeen
separa te amounts that had a combined street value of between $1,000.00 and
$1,600.00. Despite that fact tha t Appellant had never had any regular
-7-
employment, he had approximately $500.00 in cash in his possession when he
was arrested. In addition, Mynatt testified that based on her training and
experience, she knew “without a doubt that th[e] cocaine was packaged for
resale.” Mynatt testified that the amount of cocaine involved was much greater
than the amount ordinarily possessed by a typical drug abuser. She stated that
unlike most drug abusers, Appellant did not have any drug parap herna lia in his
possession with which he could ingest the cocaine himself. Further, Appellant
did not have any “tra ck m arks” o n his arms that are indicative of drug abuse. The
amount of cash App ellant had in his pos session an d the way that the cocaine
was packaged were consistent with selling cocaine. In addition, Quick testified
that based on his training and experience, the cocaine was possesse d for sa le
or delivery. He testified that both the amount of cocaine involved and the fact that
it was packaged in small baggies was consistent with the way drug dealers
operate. Quick also testified that there was nothing about Appellant’s person that
would indicate that he was a drug user. When this evidence is viewed in the light
most favorable to the Sta te, it is clearly sufficie nt for a ration al jury to conclude
beyond a reasonable doubt that Appellant possessed the cocaine with intent to
sell it.2
In this case, Appellant essentially asks us to reconsider the evidence and
substitute a verdict of not guilty in place of the ve rdict fou nd by th e jury. T hat is
not our function. Instead, we conclude that a rational jury could have found
2
We note that this case is similar to State v. Brown, 915 S.W .2d 3 (Te nn. C rim . App . 199 5), in
which this Court held that the evidence was sufficient to support an inference that the defendant
possessed 5.06 grams of cocaine with intent to sell because: the defendant was in an area known for drug
transactions, the amount of the cocaine and the fact that it was packaged in two small plastic bags
indica ted th at it wa s for resa le, the defe nda nt did not h ave a ny dru g par aph erna lia, an d the defe nda nt did
not appe ar to have recently inge sted dru gs. Id. at 8.
-8-
beyond a reasonable doubt that Appellant was guilty of the offense of possessing
.5 or more grams of cocaine with intent to sell. This issue is meritless.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________
JERRY L. SMITH, JUDGE
CONCUR:
___________________________________
JOE G. RILEY, JUDGE
___________________________________
NORMA MCGEE OGLE, JUDGE
-9-