State of Tennessee v. Elvis Louis Marsh

02/01/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 15, 2018

STATE OF TENNESSEE v. ELVIS LOUIS MARSH

Appeal from the Circuit Court for Marshall County

No. 16-CR-68 Franklin L. Russell, Judge

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No. M2017-02360-CCA-R3-CD

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The Defendant, Elvis Louis Marsh, was convicted of the sale of less than 0.5 grams of

methamphetamine, delivery of less than 0.5 grams of methamphetamine, conspiracy to

sell or deliver less than 0.5 grams of methamphetamine, possession of 0.5 grams or more

of methamphetamine with the intent to sell or deliver, and possession of drug

paraphernalia. He received an effective sentence of thirty years. On appeal, the

Defendant argues that the evidence presented at trial is insufficient to support his

convictions. Upon reviewing the record and applicable law, we affirm the trial court’s

judgments.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which NORMA

MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Jonathan C. Brown, Fayetteville, Tennessee, for the appellant, Elvis Louis Marsh.

Herbert H. Slatery III, Attorney General and Reporter; Garrett Ward, Assistant Attorney

General; Robert J. Carter, District Attorney General; and Andrew L. Wright and William

B. Bottoms, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

FACTS AND PROCEDURAL HISTORY

The Defendant’s convictions were the result of a controlled drug transaction and a

subsequent search which uncovered drugs and drug paraphernalia. The Seventeenth

Judicial District Drug Task Force (“Task Force”) utilized a confidential informant, Ms.

Tara Rowe, to arrange a controlled buy from the co-defendant, Ms. Crystal Alexander.

Ms. Rowe contacted Lieutenant Timothy Miller, then Assistant Director of the Task

Force, and informed him that she believed she could purchase methamphetamine from

Ms. Alexander. On September 30, 2015, Ms. Rowe sent a series of text messages to Ms.

Alexander and made arrangements to purchase crystal methamphetamine. They agreed

that Ms. Rowe would go to Ms. Alexander’s house to pick up the methamphetamine that

afternoon. Detective Jose Ramirez, an investigator for the Task Force, drove Ms. Rowe

to Ms. Alexander’s house that day. Detective Ramirez posed as Ms. Rowe’s “sugar

daddy.” This transaction was the first time that Detective Ramirez worked with Ms.

Rowe. Detective Ramirez placed a recording device on Ms. Rowe prior to her entering

Ms. Alexander’s house. The recording device could not transmit the recordings

instantaneously.

Detective Ramirez waited in the car while Ms. Rowe was inside Ms. Alexander’s

house. While Ms. Rowe was in the house, Detective Ramirez was in contact with other

members of the Task Force, including Lieutenant Miller and Director Timothy Lane.

Ms. Rowe testified that upon entering Ms. Alexander’s house, she saw the

Defendant sitting on the couch in the living room with methamphetamine and scales on

the couch beside him. Ms. Alexander, her father, and four children were also at the

house. Ms. Rowe testified that the transaction took place between her and the Defendant

in the living room. Ms. Rowe said she paid the Defendant one hundred dollars, using

bills with recorded serial numbers. She testified that the Defendant weighed the

methamphetamine on the scales during the transaction and that she retrieved it from the

couch.

At trial, the State played a recording of the transaction. On the recording, Ms.

Rowe talked to the Defendant, Ms. Alexander, and Ms. Alexander’s father. Ms. Rowe

and Ms. Alexander discussed selling a couch at the beginning of the transaction. Ms.

Rowe talked about someone having their own scales there. Ms. Rowe and one of the

males on the tape, either the Defendant or Ms. Alexander’s father, discussed trying to

find “nerve pills.” Ms. Alexander told Ms. Rowe that she “put another bag around it

because the other bag is real thin and you don’t want to lose it.” Ms. Rowe then engaged

in small talk about selling a sound system. Ms. Rowe told the Defendant that she had

access to other drugs that she could pick up from the pharmacy that afternoon and that if

he was interested, Ms. Alexander had her number and he could call her. As Ms. Rowe

was leaving she asked, “Are we good?” and the Defendant replied “yeah.”

After the transaction was completed, Ms. Rowe immediately got back into

Detective Ramirez’s car, where she gave him a clear plastic bag that contained the

methamphetamine she had just purchased. After they drove to a predetermined meeting

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location, Detective Ramirez weighed the methamphetamine, which weighed less than the

one gram that Ms. Rowe thought she had purchased. At the direction of the drug task

force agents, Ms. Rowe called Ms. Alexander’s cell phone to let her know that the

methamphetamine was less than a gram. The State played recordings of three phone calls

made by Ms. Rowe to Ms. Alexander’s cell phone. The Defendant answered the cell

phone each time. During the first call, Ms. Rowe told the Defendant that she weighed the

drugs on her scales and that it only weighed 0.6 grams. She told him that he should

check his scales. Conversation during the second call was again focused on the

Defendant needing to check his scales because Ms. Rowe did not receive a full gram of

drugs. During the final call, Ms. Rowe and the Defendant again discussed the scales, and

Ms. Rowe said that she “deals with” Ms. Alexander and not with him. At 3:08 p.m., Ms.

Rowe sent a text message to Ms. Alexander’s cell phone stating “[I’]m stoned now.” Ms.

Rowe reiterated that she wished to conduct future transactions with Ms. Alexander in a

text message sent at 3:11 p.m. which stated, “And id rather deal with her not u cuz u

always trying to get over on me.”

On cross-examination, trial counsel spent a great deal of time impeaching Ms.

Rowe’s ability to recollect information as well as her character for truthfulness. Ms.

Rowe admitted she did not remember things “because I do a lot of drugs.” She testified

that she had seizures and bipolar disorder and overdosed twice in 2017. She said that at

no point was she patted down by a female officer prior to or after making the controlled

buy. Each member of the Task Force who testified agreed that on the day of the

controlled buy, Ms. Rowe was lucid and did not appear to be under the influence of any

narcotics or alcohol.

The members of the Task Force who testified each described the protocol used in

controlled buys. Detective Ramirez testified that he prerecorded the bills by taking a

photograph of the serial numbers on each bill and that he searched Ms. Rowe both before

and after she entered Ms. Alexander’s house. He admitted that he did not do a cavity

search of Ms. Rowe before or after the controlled buy and that there were no female

officers present to conduct the cavity search.

After the controlled buy, Lieutenant Miller applied for a search warrant. The Task

Force returned to Ms. Alexander’s house several hours later with the search warrant. The

Defendant, Ms. Alexander, Ms. Alexander’s father, and four children were present when

the house was searched. Lieutenant Miller testified that Ms. Alexander was in the master

bedroom during the search. The Task Force found 1.18 grams of methamphetamine,

$807 in cash, pipes used to smoke methamphetamine, a small amount of marijuana, and

unknown crushed pills in two Crown Royal bags in the master bedroom. Four of the

prerecorded $20 bills used by Ms. Rowe in the earlier transaction were found on the bed,

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and one was found on the floor of the bedroom. The only contraband found outside the

master bedroom was a set of electronic scales found on the couch in the living room.

Lieutenant Miller testified that after the search, he spoke with the Defendant and

Ms. Alexander about where they purchased the methamphetamine. According to

Lieutenant Miller, the Defendant and Ms. Alexander would meet a man named Jeff to

purchase approximately three-and-a-half grams of methamphetamine multiple times a

week. Lieutenant Miller claimed that both the Defendant and Ms. Alexander “admitted

that they had about five or 10 regular customers that came to them. That Crystal sold to

some of them, and Elvis sold to some of them[.]” Director Lane testified that in Ms.

Alexander’s statement she stated that “on the majority of the sales, that Elvis would be

the person that would actually make the sale happen.”

Special Agent Cassandra Franklin-Beavers with the Tennessee Bureau of

Investigation (“TBI”) testified that the substances seized from Ms. Alexander’s house

tested positive for methamphetamine. She testified that the methamphetamine purchased

by Ms. Rowe weighed 0.34 grams and that the methamphetamine found in Ms.

Alexander’s master bedroom weighed 1.18 grams.

Ms. Alexander testified on behalf of the Defendant. The Defendant is the father of

Ms. Alexander’s two children. She said the Defendant would come to her house three

times a week to care for their children while she was at work. Ms. Alexander testified

that on September 30, 2015, Ms. Rowe came to her house to purchase methamphetamine.

The transaction took place in Ms. Alexander’s living room. She claimed that after Ms.

Rowe paid the Defendant, he gave Ms. Alexander the money. Ms. Alexander then placed

the money into a Crown Royal bag.

When officers returned a few hours later, Ms. Alexander was in her bedroom. She

testified that the methamphetamine, marijuana, money, and pipes found during the search

of the bedroom belonged to her. After law enforcement searched Ms. Alexander’s house,

she gave a statement to the officers. She admitted to law enforcement that she and the

Defendant sold methamphetamine together approximately ten times per week. On cross-

examination, Ms. Alexander admitted that the Defendant had been in the master bedroom

earlier that day.

The jury found the Defendant guilty of the sale of less than 0.5 grams of

methamphetamine, delivery of less than 0.5 grams of methamphetamine, conspiracy to

sell or deliver less than 0.5 grams of methamphetamine; possession of 0.5 grams or more

of methamphetamine with the intent to sell or deliver; and possession of drug

paraphernalia. The trial court merged the sale, delivery, and conspiracy convictions and

imposed an effective sentence of thirty years to be served in confinement. The Defendant

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filed a motion for a new trial arguing that the evidence presented at trial was insufficient

to sustain each of his convictions. The trial court denied the motion, finding that, “[t]he

evidence was not only sufficient, but frankly pretty overwhelming, when taken as a

whole.” This appeal follows.

ANALYSIS

The Defendant maintains that the evidence presented at trial was insufficient to

support each of his convictions. Specifically, he asserts that his presence at Ms.

Alexander’s house during the transaction and the search is insufficient to establish that he

participated in the transaction with Ms. Rowe or that he possessed any of the drugs and

paraphernalia found during the search.

The standard for appellate review in determining the sufficiency of the evidence is

“‘whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have the essential elements of the crime beyond a reasonable

doubt.’” State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). A defendant “must demonstrate that no reasonable trier of

fact could have found the essential elements of the offense beyond a reasonable doubt” in

order to obtain relief on a claim for insufficient evidence. State v. Perrier, 536 S.W.3d

388, 408 (Tenn. 2017). Further, because a jury conviction removes a defendant’s

presumption of innocence and “replaces it with one of guilt at the appellate level, the

burden of proof shifts from the State to the convicted defendant,” who must demonstrate

that the evidence is insufficient support the jury’s verdict. Id.

A conviction can be supported exclusively by circumstantial evidence. State v.

Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). “‘Circumstantial evidence … is

intrinsically no different from testimonial evidence.’” Id. (quoting Holland v. United

States, 348 U.S. 121, 140 (1954)). Whether the evidence is direct or circumstantial, “‘a

jury is asked to weigh the chances that the evidence correctly points to guilt against the

possibility of inaccuracy or ambiguous interference.’” Id. (quoting Holland, 348 U.S. at

140). The jury determines the weight given to circumstantial evidence. Id. (citing State

v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)).

This court “will not substitute our own inferences drawn from the evidence for

those drawn by the jury, nor will we reweigh or re-evaluate the evidence.” Perrier, 536

S.W.3d at 408 (citing Dorantes, 331 S.W.3d at 379). “‘The credibility of witnesses, the

weight to be given their testimony, and the reconciliation of conflicts in the proof are

matters entrusted to the jury as the trier of fact.’” Dorantes, 331 S.W.3d at 379 (quoting

State v. Campbell, 245 S.W.3d 331, 335 (Tenn. 2008)).

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A. Sale and Delivery of a Controlled Substance

The jury convicted the Defendant for the sale and delivery of less than 0.5 grams

of methamphetamine, a Schedule II controlled substance, for selling Ms. Rowe 0.34

grams of methamphetamine in violation of Tennessee Code Annotated section 39-17-

417(a). Tennessee Code Annotated section 39-17-417 states: “(a) It is an offense for a

defendant to knowingly: (1) Manufacture a controlled substance; (2) Deliver a controlled

substance; (3) Sell a controlled substance; or (4) Possess a controlled substance with the

intent to manufacture, deliver or sell the controlled substance.” Methamphetamine is a

Schedule II controlled substance. T.C.A. § 39-17-408. A sale occurs when there is a

bargained-for offer and acceptance and an actual or constructive transfer or delivery of

the controlled substance. See State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App.

2002). Delivery of a controlled substance occurs when there is either an actual,

constructive, or attempted transfer from one person to another of a controlled substance.

T.C.A. § 39-17-402(6). It is a Class C felony to deliver or sell less than 0.5 grams of a

Schedule II controlled substance. See T.C.A. 39-17-417(c)(2)(A).

The Defendant argues that the State failed to meet its burden and relies on Ms.

Rowe’s testimony that she picked up the methamphetamine off of the couch herself. The

evidence presented at trial established that Ms. Rowe and the Defendant engaged in a

transaction where she paid him one hundred dollars in exchange for methamphetamine.

Although the Defendant argues on appeal that Ms. Rowe’s testimony is not credible, her

testimony and determinations of her credibility are issues to be considered by the jury.

See State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014) (concluding that the trier of fact is

entrusted with determinations concerning witness credibility, factual findings, and the

weight given to evidence). “This Court affords the State the strongest legitimate view of

the evidence presented at trial and the reasonable and legitimate inferences that may be

drawn from the evidence.” State v. Wagner, 382 SW.3d 289, 297 (Tenn. 2012). Based

on the evidence presented at trial, we conclude that there was adequate evidence to prove

that the Defendant engaged in a sale of methamphetamine with Ms. Rowe and that he

delivered the methamphetamine to her.

B. Conspiracy to Sell a Controlled Substance

The Defendant maintains that the evidence was insufficient to support his

conviction of conspiracy to sell methamphetamine. As it relates to this case, Tennessee

Code Annotated section 39-12-103 provides:

(a) The offense of conspiracy is committed if two (2) or more people, each

having the culpable mental state required for the offense that is the object of

the conspiracy, and each acting for the purpose of promoting or facilitating

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commission of an offense, agree that one (1) or more of them will engage

in conduct that constitutes the offense.

….

(c) If a person conspires to commit a number of offenses, the person is

guilty of only one (1) conspiracy, so long as the multiple offenses are the

object of the same agreement or continuous conspiratorial relationship.

(d) No person may be convicted of conspiracy to commit an offense, unless

an overt act in pursuance of the conspiracy is alleged and proved to have

been done by the person or by another with whom the person conspired.

A conspiracy can be shown by a “‘mutual implied understanding’” between the parties.

State v. Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993) (quoting Randolph v.

State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978)). The State is not required to prove

that the parties had an official agreement, and the agreement may be established by

circumstantial evidence. Id. “Conspiracy connotes harmonization of design, not coequal

participation in the minutia of every criminal offense.” State v. William Henry Smith, Jr.,

No. M2016-01475-CCA-R3-CD, 2017 WL 127863, at *6 (Tenn. Crim. App. Jan. 13,

2017) (citing Shropshire, 874 S.W.2d at 641).

The Defendant argues that he was merely present at Ms. Alexander’s house when

the transaction occurred. He points out that Ms. Rowe sent text messages to Ms.

Alexander’s cell phone and did not communicate with him about the transaction prior to

its occurrence. The State responds by arguing that Ms. Alexander stated to law

enforcement that she would arrange the sales, but the Defendant would ordinarily handle

the actual transaction and that this is sufficient to show a conspiracy existed. There is an

abundance of evidence establishing that the Defendant was engaged in a conspiracy with

Ms. Alexander to sell methamphetamine to Ms. Rowe. This evidence includes the

recorded phone calls between the Defendant and Ms. Rowe during which the Defendant

and Ms. Rowe discussed the weight of the methamphetamine that she just purchased

from him, Ms. Rowe’s testimony that he weighed the methamphetamine, and Ms.

Alexander’s statement to police that she and the Defendant often sold methamphetamine

at least ten times a week.

The jury could reasonably find that the Defendant satisfied the overt act

requirement when he weighed the methamphetamine, received the money, and gave the

money to Ms. Alexander. In this case, the evidence viewed in a light most favorable to

the State establishes that the Defendant conspired with Ms. Alexander to sell Ms. Rowe

methamphetamine.

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C. Possession of Schedule II Controlled Substance and Drug Paraphernalia

In order to prove possession of a controlled substance, the State was required to

prove at trial that the Defendant knowingly “[p]ossess[ed] a controlled substance with the

intent to manufacture, deliver or sell the controlled substance.” T.C.A. § 39-17-

417(a)(4). On appeal, the Defendant argues that he did not have actual or constructive

possession of the methamphetamine found during the Task Force’s search of Ms.

Alexander’s house, and, thus, there was not sufficient evidence to support his conviction.

Specifically, the Defendant asserts that “his mere association and presence in the co-

defendant’s living room was not adequate proof that he had knowledge of the contraband

in the co-defendant’s master bedroom or that he participated in any arranged drug buy

between the co-defendant and the Confidential Informant.” See State v. Cooper, 736

S.W.2d 125, 129 (Tenn. Crim. App. 1991) (“[M]ere association with a person who does

in fact control the drugs or property where the drugs are discovered is insufficient to

support a finding that the person possessed the drugs.”).

A conviction for possession of a controlled substance may be based on either

actual or constructive possession. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001).

However, before a defendant can be found to constructively possess contraband, it must

appear that he had the “power and intention at any given time to exercise dominion and

control over the drugs either directly or through others.” State v. Bigsby, 40 S.W.3d 87,

90 (Tenn. Crim. App. 2000).

The evidence presented at trial established that the Defendant was not merely

present in Ms. Alexander’s house. Although the methamphetamine weighing over 0.5

grams was found in Ms. Alexander’s bedroom, the Defendant had access to the bedroom,

and Ms. Alexander acknowledged that the Defendant had been in her bedroom on the day

of the offenses. Further, the jury could infer that the Defendant had the ability to exercise

control over the contraband found in Ms. Alexander’s bedroom based on the transaction

with Ms. Rowe that took place mere hours earlier in which he had possession of the

methamphetamine, placed an amount of it onto his scales, weighed it, and accepted Ms.

Rowe’s money in exchange for it. Although Ms. Alexander testified that the

methamphetamine found in the bedroom belonged to her and not the Defendant, the jury

is not obligated to accept her testimony. However, Ms. Alexander also gave a statement

that she and the Defendant regularly participated in drug transactions. The jury is “‘the

primary instrumentality of justice to determine the weight and credibility to be given to

the testimony of witnesses.’” State v. Matthew Reynolds, No. M2017-00169-CCA-R3-

CD, 2018 WL 6253829, at *7 (Tenn. Crim. App. Nov. 28, 2018) (quoting Bolin v. State,

405 S.W. 768, 771 (Tenn. 1966)). Accordingly, the evidence was sufficient to show that

the Defendant had constructive possession of the methamphetamine located in the

bedroom.

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We also conclude that the evidence presented at trial was sufficient to support the

Defendant’s conviction for possession of drug paraphernalia. The State was required to

prove that: (1) the Defendant possessed an object; (2) that object was classified as drug

paraphernalia; and (3) that the Defendant intended to use that object for an illicit purpose.

T.C.A. § 39-17-425(a)(1); see also State v. Ross, 49 S.W.3d 833, 846 (Tenn. 2001).

Here, the evidence presented at trial showed that the Defendant had constructive

possession of the scales in the living room and the pipes found in the bedroom. The

testimony from both Ms. Alexander and Ms. Rowe confirmed that the Defendant had

control over the scales. He used the scales to weigh the methamphetamine that he sold to

Ms. Rowe. The Defendant also had constructive possession of the pipes found in the

bedroom for the same reasons articulated above. The scales were being used for an illicit

purpose, weighing methamphetamine prior to selling it. Accordingly, we conclude that

the evidence presented at trial was sufficient to support all of the Defendant’s

convictions.

CONCLUSION

Based on the foregoing, we affirm the judgments of the trial court.

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JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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