State of Tennessee v. Emmanuel Bibb Houston ( 2015 )


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  •        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs August 12, 2015
    STATE OF TENNESSEE v. EMMANUEL BIBB HOUSTON
    Appeal from the Circuit Court for Bedford County
    No. 17455   F. Lee Russell, Judge
    No. M2014-00202-CCA-R3-CD – Filed December 11, 2015
    Following a jury trial, the Defendant-Appellant, Emmanuel Bibb Houston, was convicted
    as charged in count 1 of possession of a Schedule VI drug with intent to sell, a Class E
    felony; in count 2 of possession of a Schedule VI drug with intent to deliver, a Class E
    felony; in count 3 of possession of a firearm with the intent to go armed during the
    commission of or attempt to commit a dangerous felony, a Class D felony; and in count 4
    of possession of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-
    417(a), -1324(a), -425(a)(1). The trial court merged count 2 with count 1 and imposed an
    effective sentence of six years. Houston‟s sole issue on appeal is that the evidence is
    insufficient to sustain his felony convictions. Upon our review, we affirm the judgments
    of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
    OGLE and ROBERT W. WEDEMEYER, JJ., joined.
    Christopher P. Westmoreland, Shelbyville, Tennessee, for the Defendant-Appellant,
    Emmanuel Bibb Houston.
    Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
    Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles
    and Richard A. Cawley, Assistant District Attorneys General, for the Appellee, State of
    Tennessee.
    OPINION
    Initially, we must address the State‟s claim that this appeal should be dismissed
    because Houston did not file a timely notice of appeal within thirty days of the trial
    court‟s order denying his motion for new trial. However, a careful review of the record
    shows that Houston sought and obtained a waiver of the thirty-day deadline to file the
    notice of appeal but did not file his notice of appeal within the fifteen-day deadline set by
    this court in its order. In order to determine whether the interest of justice mandates
    waiver of this fifteen-day deadline, we must briefly summarize the procedural history of
    this case.
    On September 20, 2013, the trial court sentenced Houston and entered judgments
    of conviction. That same day, Houston orally moved for a new trial, and the trial court,
    after hearing arguments, denied the motion for new trial and entered an order to that
    effect on September 24, 2013. The order denying the motion for new trial appointed
    defense counsel to represent Houston on appeal; ordered the court reporter to transcribe
    the trial, sentencing hearing, and motion for new trial hearing within ninety days of the
    notice of appeal; and ordered defense counsel to notify the court reporter of Houston‟s
    appeal by mailing the court reporter a copy of the notice of appeal after it had been filed.
    On October 1, 2013, Houston filed a motion for new trial that reduced to writing the
    arguments he had made at the motion for new trial hearing.
    On January 31, 2014, Houston, through defense counsel, filed a Motion to Allow
    Late Filing of Notice of Appeal, stating only that he did not timely file the notice of
    appeal and that the Attorney General‟s office had no objection to the motion.1 On
    February 21, 2014, the Tennessee Court of Criminal Appeals entered an order waiving
    the thirty-day deadline for filing the notice of appeal and giving Houston fifteen days
    from the date of the order to file a notice of appeal in the trial court. The record shows
    that while two notice of appeal documents were filed in the trial court, they were not filed
    until July 3, 2014, approximately four months after the deadline set by this court. The
    first of these notice of appeal documents was filed on July 3, 2014, although it was dated
    January 29, 2014, and the certificate of service showed that the document had been
    forwarded to the State on January 29, 2014. The second notice of appeal document,
    which varied in form from the first, was also filed in the trial court on July 3, 2014, but
    was not stamped “Received” by the Clerk of the Appellate Courts until July 18, 2014.
    On December 1, 2014, the Clerk of the Appellate Courts sent a notice to the
    Bedford County Circuit Court Clerk stating that the time for filing the record in
    Houston‟s case had expired and requesting that the Clerk file the record or notify the
    Tennessee Court of Criminal Appeals of the status of this appeal within twenty days of
    the date of the notice. On December 8, 2014, the Bedford County Circuit Court Clerk
    forwarded a letter to the Clerk of the Appellate Courts requesting additional time to file
    the record on appeal in Houston‟s case because of a “[c]lerical error in filing notice of
    1
    On February 6, 2014, the trial court entered an order requiring defense counsel to “secure the
    services of a court reporter to transcribe the Trial, Sentencing hearing and hearing upon Defendant‟s
    Motion for a New Trial that took place in Bedford County Circuit Court[.]”
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    appeal[.]” On December 9, 2014, the Tennessee Court of Criminal Appeals entered an
    order granting the clerk thirty days from the date of the order to transmit the record on
    appeal.
    On January 2, 2015, the Bedford County Circuit Court Clerk forwarded a letter to
    the Clerk of the Appellate Courts, stating that after talking with defense counsel and the
    court reporter, she learned that the order for transcript had not been filed with the court
    reporter and that the court reporter would need an additional sixty days to complete the
    trial transcript because of a heavy caseload. On January 7, 2015, Houston filed a motion
    asking this court to allow the late filing of Appellant‟s Brief because the record had not
    been filed and asking for an additional sixty days in order to complete the filing of this
    record. In this motion, Houston asserted that “[t]he transcript of the trial has not been
    completed as a more specific Order from the court was necessary, and a change in the
    Clerk‟s office delayed the discovery of this issue.” On January 13, 2015, the Tennessee
    Court of Criminal Appeals entered an order wherein it noted that the notice of appeal had
    been filed on July 3, 2014, and gave defense counsel until February 27, 2015, to file the
    transcript of evidence with the trial court clerk. On January 16, 2015, the trial court
    entered an order requiring the court reporter to transcribe all trial proceedings, sentencing
    proceedings, and proceedings related to the motion for new trial so that they might be
    made a part of the record incident to Houston‟s appeal.
    Tennessee Rule of Appellate Procedure 4(a) states that “the notice of appeal
    required by Rule 3 shall be filed with and received by the clerk of the trial court within 30
    days after the date of entry of the judgment appealed from . . . .” Upon the filing of a
    motion for new trial, “the time for appeal for all parties shall run from the entry of the
    order denying a new trial[.]” Tenn. R. App. P. 4(c). However, this rule also states that
    “in all criminal cases the „notice of appeal‟ document is not jurisdictional and the filing
    of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “„In
    determining whether waiver is appropriate, this court will consider the nature of the
    issues presented for review, the reasons for and the length of the delay in seeking relief,
    and any other relevant factors presented in the particular case.‟” State v. Rockwell, 
    280 S.W.3d 212
    , 214 (Tenn. Crim. App. 2007) (quoting State v. Markettus L. Broyld, No.
    M2005-00299-CCA-R3-CO, 
    2005 WL 3543415
    , at *1 (Tenn. Crim. App. Dec. 27,
    2005)). “Waiver is not automatic and should only occur when „the interest of justice‟
    mandates waiver.” 
    Id. (citing Michelle
    Pierre Hill v. State, No. 01C01-9506-CC-00175,
    
    1996 WL 63950
    , at *1 (Tenn. Crim. App., at Nashville, Feb. 13, 1996)).
    Here, Houston filed a notice of appeal on July 3, 2014, approximately four months
    after the deadline set by this court in the order allowing him to file a late notice of appeal.
    As we previously noted, this court has the authority to waive “in the interest of justice”
    the timely filing of the Houston‟s notice of appeal. See Tenn. R. App. P. 4(a). Although
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    Houston sought and obtained a waiver of the thirty-day deadline to file a notice of appeal,
    curiously, he has not explained why he did not file his notice of appeal within the fifteen-
    day deadline set by this court in its order or how waiving this deadline serves the interest
    of justice. Nevertheless, because it is not entirely clear from the record whether the
    delayed filing was the result of clerical error, we will waive the timely filing of the notice
    of appeal in the interest of justice.
    The evidence adduced at Houston‟s June 3, 2013 trial was as follows: Assistant
    Director Timothy Joe Miller and Lieutenant Shane Daugherty with the 17th Judicial Drug
    Task Force testified that Houston and lot 99, Bridlewood Trailer Park in Shelbyville,
    Tennessee, his girlfriend‟s trailer-home, had been under investigation for over a year
    prior to the instant offense. Assistant Director Miller explained that he knew Houston
    prior to the instant offense and that Houston knew him in his capacity as a law
    enforcement officer. Lieutenant Daugherty knew Houston prior to the instant offense
    because they played on the same basketball courts together. Given their prior
    relationship, the officers explained that their encounter with Houston on March 1, 2011,
    the day of the offense, was cordial. On the day of the offense, the officers had the trailer-
    home under surveillance for illegal activity. They conducted a traffic stop on an
    individual who had just left the trailer-home. Assistant Director Miller recovered a $20
    bag of marijuana in the car. The driver told him that he purchased the drugs at the trailer-
    home from “E,” which was Houston‟s nickname. Shortly thereafter, they conducted a
    knock and talk at the trailer-home, where they encountered Houston. They were dressed
    in plain clothes, had badges hanging around their necks, guns displayed, and flashlights
    in hand. The interior door was glass and open. The officers could see inside the trailer-
    home and announced their presence. Houston, his girlfriend, and another individual were
    present in the trailer-home. Houston told the officers to “Come in.”
    Upon entry, the officers were overwhelmed by the smell of burnt marijuana. They
    asked Houston if they could speak with him privately. Houston led them down a hallway
    toward the rear of the trailer-home and into a bedroom. They encountered Houston‟s
    girlfriend in the hallway, who followed them to the bedroom. Assistant Director Miller
    explained that they were investigating marijuana distribution and asked for their
    cooperation and consent to search. At this point, Houston told his girlfriend to “[j]ust
    hand them that stuff.” She then reached into the top drawer of a nightstand and removed
    several bags of marijuana and a set of digital scales. Houston was advised of his Miranda
    rights, which he said he understood and waived. Before his girlfriend left the room,
    Houston said, “She don‟t [sic] have anything to do with this. This is my stuff.” Houston
    was asked about additional drugs or guns in the trailer-home. In response, he pulled out
    more marijuana from a men‟s basketball shoe underneath the bed and identified the
    location of a gun. The officers retrieved a .40 caliber semi-automatic pistol loaded with a
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    magazine with six rounds of ammunition from a computer bag approximately six feet
    from the nightstand where the drugs were found.
    The bedroom where the gun and drugs were found had men‟s basketball shoes
    underneath the bed and men‟s clothing strewn about. Lieutenant Daugherty said there
    was “definitely a male living there or staying in the room on a frequent occasion.” They
    agreed that Houston‟s girlfriend paid the rent for the trailer-home and that none of the
    clothes in the bedroom were identified as belonging to Houston. They further explained
    that Houston was cooperative the entire encounter. In regard to whether the drugs or gun
    belonged to anyone else in the trailer-home, Assistant Director Miller said that Houston
    “was straight up about who it belonged to and the fact that he didn‟t want anyone else to
    have to . . . be in any trouble about it.” Houston “took responsibility for everything
    seized from the home.”
    The officers characterized Houston as a street-level drug dealer due to the number
    of people he would deal with and the small amount of drugs sold. Assistant Director
    Miller described his job as “climbing the ladder” and asked Houston to work with him in
    targeting his supplier in the drug trade. Houston explained that he would regularly go to
    Murfreesboro, Tennessee, meet with another male whom he only knew as “Devin,” and
    purchase approximately a quarter pound of marijuana. He would return to Bedford
    County and break the marijuana down into smaller quantities for resale “to make ends
    meet.” The officers gave Houston the opportunity to participate in a controlled buy, for
    which he would be given “consideration.” If Houston assisted the officers, then they
    would pass that information along to the District Attorney‟s Office. Houston was
    undecided whether he wanted to participate in a controlled buy at the time, and the
    officers gave him two weeks to consider it. Although Houston initiated several follow-up
    telephone conversations, he ultimately “fell off conversations” with Assistant Director
    Miller.
    A forensic scientist with the Tennessee Bureau of Investigation conducted testing
    on five of the sixteen bags of a leafy substance recovered in connection with this case.
    She confirmed that the substance was marijuana and that the total cumulative weight was
    16.1 grams. The remaining eleven bags weighed 45.3 grams and visually appeared to be
    marijuana.
    The jury convicted Houston of possession of marijuana in an amount weighing not
    less than one-half ounce nor more than ten pounds for resale and delivery and possession
    of a firearm with the intent to go armed during the commission of a dangerous felony.
    After merging the drug convictions, the trial court sentenced Houston to two years‟
    incarceration for possession of marijuana for resale and four years‟ incarceration for the
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    possession of a firearm during the commission of a dangerous felony, to be served
    consecutively.2
    ANALYSIS
    The sole issue raised by Houston with respect to the sufficiency of his drug and
    firearm related convictions is whether the State adequately proved that he possessed the
    contraband.3 Based on the cases cited in his brief, he argues that possession was not
    established because (1) there were other people present where the drugs were found, (2)
    he was not in the same room as the drugs or the firearm when initially approached by law
    enforcement, (3) that he was not the owner of the premises where the drugs and firearm
    were found, and (4) no evidence of his personal property was found in the trailer. In
    response, the State points out that Houston claimed responsibility for the drugs, admitted
    buying and selling the drugs to make extra money, and was in close proximity to the
    drugs and firearm at the time of the search. We agree with the State.
    “Because a verdict of guilt removes the presumption of innocence and raises a
    presumption of guilt, the criminal defendant bears the burden on appeal of showing that
    the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 
    279 S.W.3d 265
    , 275 (Tenn. 2009) (citing State v. Evans, 
    838 S.W.2d 185
    , 191 (Tenn.
    1992)). When this court evaluates the sufficiency of the evidence on appeal, the State is
    entitled to the strongest legitimate view of the evidence and all reasonable inferences that
    may be drawn from that evidence. State v. Davis, 
    354 S.W.3d 718
    , 729 (Tenn. 2011)
    (citing State v. Majors, 
    318 S.W.3d 850
    , 857 (Tenn. 2010)). When a defendant
    challenges the sufficiency of the evidence, the standard of review applied by this court is
    “whether „any rational trier of fact could have found the essential elements of the crime
    beyond a reasonable doubt.‟” State v. Parker, 
    350 S.W.3d 883
    , 903 (Tenn. 2011)
    (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979)). Similarly, Rule 13(e) of the
    Tennessee Rules of Appellate Procedure states, “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 finding by the trier of fact of guilt beyond a reasonable doubt.”
    Guilt may be found beyond a reasonable doubt where there is direct evidence,
    circumstantial evidence, or a combination of the two. State v. Sutton, 
    166 S.W.3d 686
    ,
    691 (Tenn. 2005); State v. Hall, 
    976 S.W.2d 121
    , 140 (Tenn. 1998). The standard of
    review for sufficiency of the evidence “„is the same whether the conviction is based upon
    direct or circumstantial evidence.‟” State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn. 2011)
    2
    Pursuant to Tenn. Code Annotated section 39-17-1324(e), the trial court ordered the first three
    years of Houston‟s firearm conviction to be served at 100 percent less allowable credits.
    3
    We have combined issues one and two of Houston‟s brief for clarity.
    -6-
    (quoting State v. Hanson, 
    279 S.W.3d 265
    , 275 (Tenn. 2009)). The jury as the trier of
    fact must evaluate the credibility of the witnesses, determine the weight given to
    witnesses‟ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 
    245 S.W.3d 331
    , 335 (Tenn. 2008) (citing Byrge v. State, 
    575 S.W.2d 292
    , 295 (Tenn. Crim.
    App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
    evidence and the inferences to be drawn from this evidence, and the extent to which the
    circumstances are consistent with guilt and inconsistent with innocence are questions
    primarily for the jury. 
    Dorantes, 331 S.W.3d at 379
    (citing State v. Rice, 
    184 S.W.3d 646
    , 662 (Tenn. 2006)). When considering the sufficiency of the evidence, this court
    shall not substitute its inferences for those drawn by the trier of fact. 
    Id. In order
    to sustain the drug convictions in this case, the State was required to
    prove that Houston knowingly sold or possessed marijuana in an amount less than one
    half ounce but not more than ten pounds. T.C.A. § 39-17-417(a). To sustain the firearm
    conviction, the State was required to prove that Houston “possess[ed] a firearm with the
    intent to go armed during the commission of or attempt to commit a dangerous felony.”
    
    Id. § 39-17-1324(a).
    This offense is comprised of three separate elements: (1) that the
    defendant possessed a firearm; (2) that the possession was with the “intent to go armed”;
    and (3) that the first two elements occurred during the commission or attempted
    commission of a “dangerous felony.” State v. Fayne, 
    451 S.W.3d 362
    , 369 (Tenn. 2014).
    In Tennessee, possession may be either actual or constructive. State v. Shaw, 
    37 S.W.3d 900
    , 903 (Tenn. 2001). A person constructively possesses a controlled substance
    when he or she has “the power and intention at a given time to exercise dominion and
    control over [the contraband] either directly or through others.” 
    Id. at 903
    (quoting State
    v. Patterson, 
    966 S.W.2d 435
    , 445 (Tenn. Crim. App. 1997)). Said differently,
    constructive possession is the “ability to reduce an object to actual possession.” State v.
    Cooper, 
    736 S.W.2d 125
    , 129 (Tenn. Crim. App. 1987). However, “[t]he mere presence
    of a person in an area where drugs are discovered is not, alone, sufficient.” State v.
    Bigsby, 
    40 S.W.3d 87
    , 90 (Tenn. Crim. App. 2000) (citing 
    Cooper, 736 S.W.2d at 129
    ).
    “Likewise, mere 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.” 
    Cooper, 736 S.W.2d at 129
    .
    Viewed in the light most favorable to the State, the record shows that Houston and
    his girlfriend‟s trailer-home were under surveillance for over a year prior to the instant
    offense. On the date of the offense, he sold a $20 bag of marijuana to an individual while
    his girlfriend‟s trailer-home was under surveillance by law enforcement. The individual
    confirmed that he purchased the marijuana from Houston. Officers approached the
    trailer-home, and Houston told them to come in. When asked to speak privately, Houston
    led them to a back bedroom. The officers told Houston they were investigating
    -7-
    marijuana distribution, and Houston directed his girlfriend to give them “that stuff.” She
    then gave the officers several bags of marijuana and digital scales. Houston later
    produced additional amounts of marijuana and identified the location of a gun, which was
    in the same room only a short distance away. Houston twice admitted that the contraband
    recovered from the trailer- home was his. There were men‟s basketball shoes and clothes
    throughout the room. He further admitted that he was a low-level drug dealer. He told
    officers that he would regularly travel to Murfreesboro to purchase marijuana, and upon
    returning to Shelbyville, he would break it down into smaller amounts for resale to make
    extra money. He entertained the idea of cooperating with law enforcement to target other
    drug dealers, but failed to follow through. There is no question that Houston was in
    constructive possession of the marijuana and gun in this case. Accordingly, the evidence
    presented is more than sufficient for a reasonable juror to conclude that Houston was in
    constructive possession of the marijuana and gun recovered from the trailer-home. He is
    not entitled to relief.
    CONCLUSION
    Upon our review, we affirm the judgments of the trial court.
    _________________________________
    CAMILLE R. McMULLEN, JUDGE
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