State of Tennessee v. Demario Darnell Thompson ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 5, 2013 Session
STATE OF TENNESSEE v. DEMARIO DARNELL THOMPSON
Appeal from the Circuit Court for Madison County
No. 11-198 Donald H. Allen, Judge
No. W2012-00642-CCA-R3-CD - Filed July 15, 2013
The Defendant, Demario Darnell Thompson, was convicted by a Madison County Circuit
Court jury of possession of a firearm with the intent to go armed during the commission of
a dangerous felony, a Class D felony, possession of marijuana with the intent to sell, a Class
E felony, possession of marijuana with the intent to deliver, a Class E felony, and possession
of drug paraphernalia, a Class A misdemeanor. See T.C.A. §§ 39-17-1324, 39-17-417, and
39-17-425 (2010). The trial court merged the two convictions for possession of marijuana
into a single count of possession of marijuana with the intent to sell. The court sentenced
the Defendant as a Range I, standard offender to four years’ confinement for possession of
a firearm during the commission of a dangerous felony, two years’ confinement for
possession of marijuana with the intent to sell, and eleven months, twenty-nine days’
confinement for possession of drug paraphernalia and ordered partial consecutive sentencing
for an effective six-year sentence. On appeal, the Defendant contends that the evidence is
insufficient to support his convictions. We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH , and
R OGER A. P AGE, JJ., joined.
Robert Hardy, Jr., Memphis, Tennessee, for the appellant, Demario Darnell Thompson.
Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey Dean Zentner, Assistant
Attorney General; James G. (Jerry) Woodall, District Attorney General; and Brian Matthew
Gilliam, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
At the trial, Jackson Police Officer Robert Groves testified that he stopped a car a
little after midnight on October 17, 2010, around Baltimore Street because the headlights and
taillights were off. He said he followed the car and activated his blue lights after the car
crossed Main Street at the intersection of Shannon Street and Lafayette Street in downtown
Jackson. He said he could see three or four people in the car. He said Jackson Metro
Narcotics Sergeant Chris Long was in the area and stopped to assist him. He knew K-9
Officers Steins and Moss were in the area and called them as a precaution.
Officer Groves testified that he approached the driver’s side of the car and spoke to
the driver and that Sergeant Long approached the passenger’s side and spoke to the
passenger. He said that the driver did not know why he was stopped and that he told the
driver his headlights were off. He said that he identified the driver as Michael Douglas after
obtaining his driver’s license and that he cited Mr. Douglas for improper lights. He said he
did not participate in a search of the car but knew the car was being searched when he was
at the rear of the car talking to the driver. He said that before the search began, the
passengers and the driver were asked to step out of the car and that he talked to the driver
while other officers talked to the passengers and searched the car. He said he did not interact
with the passengers and focused on the driver. He said he was at the scene about twenty to
thirty minutes. After the search was complete, he issued a citation to the driver and allowed
him to leave.
On cross-examination, Officer Groves testified that he did not recall speaking to the
Defendant that night. He said that he was patrolling when he saw the car driving without
headlights or taillights and that he wrote a citation to the driver for improper lights. He said
that he asked for the driver’s identification and that he remembered the driver was a black
male in his early twenties, was about six feet tall, and weighed about 160 to 170 pounds.
On redirect examination, Officer Groves testified that he saw drugs retrieved from the
passenger floorboard area of the car and displayed on the trunk. On recross-examination, he
said that he was standing on the driver’s side of the car toward the back when he saw the
drugs. He said that it was dark outside but that all the officers had their police cruisers’ lights
and spot lights shining on the car. He said he could see the floorboard where the officers
found things.
Jackson Police Officer Jeremy Stines testified that he was a K-9 officer and that his
dog was trained to detect narcotics. On October 17, 2010, Officer Groves requested that he
come to the scene on the west side of Highland. He said that Officer Groves was going to
ask him to have the dog smell for narcotics around the car but that the officers received
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consent to search the car. He said he searched the vehicle and found a yellow plastic bag on
the front passenger floorboard close to the seat but not under it and in his plain view. He said
that after he opened the bag, he saw a green leafy substance he thought was marijuana and
gave the bag to Sergeant Long, who was searching the trunk. He said he could not see the
contents of the yellow bag from the outside and had to open it to see inside. He said he
opened the bag, looked inside, did not take anything out of the bag to examine it, and did not
handle anything inside the bag. He said he did not interact with the occupants of the car. He
stopped searching after he found the yellow bag. He said that after he gave the bag to
Sergeant Long, he did not remember doing anything else.
On cross-examination, Officer Stines said that Officer Groves called him to the scene.
He said that he did not take the dog from the car after he arrived. He said he did not know
how long the search lasted and agreed it should not have lasted long because the bag was in
plain view. He said three officers searched the car. He said it took him less than one or two
minutes to arrive at the scene after he received the call. He said he did not have contact with
the Defendant at the scene, did not know the Defendant, and did not know the Defendant to
be drug dealer.
Madison County Sheriff’s Sergeant Chris Long testified that he was assigned as a
supervisor to the Jackson Metro Narcotics Unit. He said that on October 17, 2010, he heard
on the radio that Officer Groves stopped a car at the intersection of Shannon Street and
Lafayette Street and that three people were in the car. He said he responded to the area as
a backup officer and approached the passenger side of the car. He said that he talked to the
passenger in the front seat, that he smelled a strong odor of burnt marijuana almost
immediately, and that he asked the passenger if marijuana was in the vehicle. He said that
part of his training was to recognize the smell of drugs and that he was able to differentiate
the smell of marijuana from other smells. He estimated that he had worked on 500 to 1000
cases involving marijuana during his career and said that he was familiar with the smell. He
said that raw marijuana had more of a “green foliage-type smell” and that burnt marijuana
had a “smoky musty smell.” He identified the Defendant as the front seat passenger that
night.
Sergeant Long testified that the passenger-side window was down and that the smell
came through the window. He said that the Defendant was still in the car when he
approached and that he stood beside the passenger door. He said that he told the Defendant
he smelled marijuana, that he asked if marijuana was in the car, and that the Defendant
denied marijuana was in the car and stated they had already smoked it. He said that he asked
again if narcotics were in the car and that the Defendant stated the drugs were in the trunk.
He said he had probable cause to search the car based on the smell of marijuana. He said that
the Defendant told him he had a permit to carry a handgun and that he verified the
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Defendant’s permit was valid. He said that he asked the Defendant if the weapon was in the
car, that the Defendant told him the gun was in the glove box, and that he asked the
Defendant to leave it there. He said he asked the Defendant to step out of the car for officer
safety and to prevent the Defendant from destroying evidence.
Sergeant Long testified that after the Defendant was out of the car, the Defendant told
him the marijuana was in his sock, not the trunk. He said he asked the Defendant to place
his hands on the vehicle to allow him to perform a “pat down” of the Defendant to find the
marijuana. He said that he found thirty-five $100 bills and a partially smoked marijuana
cigarette in the Defendant’s sock. He said that he seized the money, which was folded a
couple of times and wrapped with a rubber band.
Sergeant Long testified that he participated in the search of the car. He said he
retrieved the marijuana cigarette from the Defendant’s sock and arrested the Defendant. He
stated that he turned toward the passenger door and that Officer Stines handed him a yellow
plastic bag. He said he opened the bag and found marijuana, a set of digital scales, plastic
sandwich bags, and an unopened two-pack of Swisher Sweets Cigarillo Cigars. He said he
collected all the items and logged them as evidence. He said he found a Smith & Wesson
handgun in the glove box of the car, cleared ten live rounds of ammunition from it, and
logged it as evidence. He said the gun was given to the Jackson Police Department evidence
technician, who collected all weapons recovered as evidence.
Sergeant Long testified that the Defendant admitted the items in the yellow bag were
his and that he told the Defendant the amount of marijuana found made the charge a felony.
He said that the Defendant told him the marijuana was for personal use, that he was not a
drug dealer, that the sandwich bags were for his children’s lunches, and that a friend had
given him the scales to weigh his marijuana because he liked his marijuana cigarettes to
contain exactly one gram. He said that when he weighed the marijuana with its packaging,
it weighed 34.2 grams and that the Tennessee Bureau of Investigation’s (TBI) measurement
was 26.1 grams without the packaging. He said the marijuana was contained in a “ziplock-
type” bag inside the yellow bag. He said he removed the contents of the yellow bag but did
not remember what he did with the bag. He said that he spoke briefly with the other
passenger. He said that another gun was found in the car, that the gun belonged to the driver,
who had a valid gun permit, and that the driver and other passenger were released when
nothing else was found.
On cross-examination, Sergeant Long testified that he arrived at the scene after
Officer Groves. He said he had made several hundred drug arrests and knew the difference
between an efficient and an inefficient investigation. He said some efficient investigations
included written or recorded statements but did not agree that an investigation with written
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statements was more efficient than an investigation with only oral statements. He said it may
be easier to present written statements to a jury. He said that his affidavit of complaint and
supplemental and incidental reports helped him remember accurately what occurred.
Sergeant Long testified that he completed an affidavit of complaint on October 17,
2010, concerning the charges against the Defendant. He said the affidavit did not contain the
Defendant’s statements about the marijuana being for personal use, the scales being used to
ensure the Defendant’s marijuana cigarettes contained one gram, and the sandwich bags
being for the Defendant’s children’s lunches. He said that he generally wrote only the
probable cause for the charges in the affidavit.
Sergeant Long testified that the incident occurred on the weekend of Lane College’s
Homecoming and that many people were in town. He said that when he arrived at the scene,
Michael Douglas, who received the traffic citation, and another passenger whose name he
did not know were in the car. He said that he only questioned the Defendant, that he did not
read the Defendant his Miranda rights, and that he did not record the conversation. He said
that the Defendant’s statements were not written but that the Defendant claimed the contents
of the bag.
Sergeant Long testified that he responded to assist another officer with a traffic
violation, not a drug encounter. He said that he learned the smell of marijuana from on-the-
job training, that he had been on the job for nine years, and that he could detect the smell of
marijuana. He said the yellow bag was not tagged as evidence, that he took the contents out
of the bag, and that he did not remember what he did with the bag. He said the bag was not
evidence and was not illegal. He agreed the cigars and the digital scales were not illegal by
themselves but said they could be used by a marijuana smoker or dealer.
Sergeant Long testified that the Defendant had a valid handgun carry permit but
possessed the gun with a felonious amount of marijuana. He explained that the weight he
measured and the weight the TBI measured were different because he weighed the marijuana
in its packaging and the TBI removed the packaging. He said that based on the evidence, he
believed the Defendant was a drug dealer. He said he did not need to know that the
Defendant was a certified, licensed armed security guard to explain why the Defendant had
a gun because the Defendant produced a valid gun permit. He said that the Defendant told
him he worked as an armed security guard but that he did not state the information in his
affidavit of complaint because it did not support probable cause. He said that he did not state
in his affidavit that two other people were in the car with the Defendant because he did not
question them and that it did not support probable cause. He said that the money he found
on the Defendant was thirty-five $100 bills and did not include smaller bills. He said the
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Defendant told him the money was his life savings. He said he did not write the Defendant’s
explanation in his affidavit because it did not help the case.
Sergeant Long testified that he was not familiar with a person named Michael Powell.
He said that the prosecutor told him someone sent a sworn statement taking responsibility for
the items recovered but that Sergeant Long did not know the person’s name. He said that he
was told the person was the driver of the car and that the copy of the traffic citation identified
Michael Douglas as the driver. He said that he spoke to the driver’s attorney after he learned
the driver claimed ownership of the evidence and that he did not create a supplement to the
file.
On redirect examination, Sergeant Long identified a Smith & Wesson semiautomatic
handgun, an empty magazine that fit the handgun, and ten nine-millimeter rounds he
recovered from the glove box and which were claimed by the Defendant. He said the gun,
the magazine, and the ammunition were the same items noted in his affidavit of complaint.
On recross-examination, Sergeant Long said he did not submit the handgun, the drugs, or the
drug paraphernalia to the TBI for testing. He said the gun was found in the glove box, not
on the Defendant’s person.
Brenda McNeil testified that she was the evidence technician for the Metro Narcotics
Unit of the Madison County Sheriff’s Department and that she received all the drugs, drug
paraphernalia, and other drug evidence from the arresting officers, which she secured in the
drug vault. She said the drugs were tested by the forensic scientists at the TBI Laboratory
in Memphis. She stated that she took the marijuana to the TBI in Memphis to be tested and
returned it to Jackson after the testing and that the evidence was kept in the evidence locker
in Jackson. She said that she was the only person who had control over it and that she
brought it to court the day of the trial. She said that she brought other evidence with her to
the trial but that the marijuana was the only evidence sent for testing.
TBI Forensic Scientist Shalandus Harris testified that she had worked at the TBI for
over two years in the drug chemistry section. She said she performed a microscopic test and
a color test on the drugs and confirmed the sample was marijuana. She said the marijuana
weighed 26.1 grams.
On cross-examination, Agent Harris testified that after she prepared her report,
another forensic scientist reviewed it by conducting a screening test and a confirmatory test
to ensure the procedures and the policies were followed and the information on the
submission form matched the information on the report. She said the TBI had a “point two
percent” degree of error for the measurement of the weight of a controlled substance. She
said she had never had any reported miscalculations or misinterpretations.
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Michael Powell testified for the defense that he and the Defendant had been friends
for about nine or ten years. He said the Defendant lived in the Frazier section of Memphis
with his girlfriend and his daughter and was a licensed armed security guard. He said that
on October 17, 2010, he received a ticket for driving with his lights off and that the
Defendant was “locked up.” He said that he was the driver of the car but that the ticket was
dismissed because the officer wrote “Michael Douglas,” the wrong name, on the ticket.
Mr. Powell testified that on October 17, 2010, he was excited to get to Jackson
because it was Lane College’s homecoming and he was supposed to promote a party. He
said he did not want to travel alone and asked his cousin and the Defendant to come with
him. He said he had to “beg” the Defendant to come because the Defendant was a “serious
type” and not the type to attend parties. He said that he could not enter the party he was
scheduled to promote and that he turned off the headlights on his car as they sat in the
parking lot listening to the radio. He said that he remembered another party was scheduled
nearby and that he left without turning on his headlights. He said he drove about one block
before the police stopped him. He said he was nervous because he had not told anyone he
had “a little personal stash” under the seat. He said that the officer knocked on his window
and asked if he knew his headlights were off. He said that the officer walked back to his car
and that four or five police cars “rushed up on” them.
Mr. Powell testified that under the passenger seat, he had a yellow “Athlete Foot” bag
containing marijuana, a scale, five or six cigarillos, some sandwich bags, and other personal
items like cologne. He said that the police asked them to step out of the car, that his cousin
was at the hood of the car, that he was on the sidewalk, and that the Defendant was at the
back of the car. He said he was not handcuffed and could not hear what was happening with
the other two. He said the yellow bag was under the passenger seat and would not have been
easily noticed by someone sitting in the car. He said he wanted to apologize to the Defendant
because the Defendant was his friend and was on trial for Mr. Powell’s actions. He said it
was his responsibility and was not the Defendant’s fault. He said he did not tell his cousin
or the Defendant that the drugs were in the car.
Mr Powell testified that the drugs were under the passenger seat, that he was the
driver, and that the yellow bag was his. He said that he had about an ounce of marijuana in
the bag and that it cost about $65. He said the cigarillos were used to roll marijuana to
smoke it. He said that he smoked marijuana about twice per week but that he had smoked
less since the traffic stop. He said that he usually bought a “nice portion” to last a long time
to prevent his returning frequently to the dealer. He identified the digital scale as the one
from his yellow bag and said that he used the scale to weigh the amount he wanted to roll in
the cigarillo and the amount the dealer sold him.
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Mr. Powell testified that on the night he was stopped, he had the opportunity to tell
the officers the items were his but that he did not because he was a coward. He said he was
driving his car, did not want to go to jail, and would have lost a lot. He said he was selfish
that night. He stated that he told the Defendant he was going to confess because it was on
his conscience and that he contacted a lawyer to determine the procedure for dealing with the
situation. He identified his lawyer, who was in the courtroom, and said he provided counsel
an affidavit confessing to this crime in July. He said that he did not come forward earlier
because he “chickened out” but that the drugs and the contents of the yellow bag belonged
to him, not to the Defendant. He read his affidavit to the jury and confirmed that it was
accurate. He said, though, that he did not hear the Defendant say the drugs were his but that
an officer told him the Defendant claimed the drugs.
On cross-examination, Mr. Powell testified that he did not tell the officer his name
was incorrect on the citation because he did not look at it. He agreed that he signed the
bottom of the citation and that the officer gave him a court date. He said he returned to
Jackson the next day to assist the Defendant’s family in bailing the Defendant out of jail
because the Defendant was his friend but denied he helped pay the bond. He said that he had
an opportunity to review his affidavit before he signed it but that he looked at the affidavit
again and wanted to clarify that he did not hear the Defendant say the drugs were his but
instead an officer told him the Defendant claimed the drugs. He said he was first made aware
that the Defendant claimed possession of all the marijuana when the Defendant was arrested
and the officer told him. He said he thought the Defendant claimed what was on his person
but was charged with possessing the entire amount from the yellow bag. When the
prosecutor asked which version to believe, Mr. Powell said that everything was his and that
he did not hear the Defendant confess.
Mr. Powell testified that he saw the officers handcuff the Defendant and place him
in the patrol car. He agreed that he received a citation and was allowed to drive home. He
admitted that he had smoked marijuana that night but not inside the car. He said he knew the
Defendant had a marijuana cigarette in his sock because they had smoked it outside the car
when they were parked. He said they got the marijuana from some friends in the parking lot.
He said he knew people in Jackson and came to Jackson to promote a party. He said that
promoting a party did not mean he was running it but that he invested about $300 in the
party. He said he was unaware the Defendant had money with him and thought the
Defendant had thrown away the marijuana cigarette.
Mr. Powell testified that they left the parking lot to go to another party in Jackson and
that he texted someone to get the address. He admitted he was texting while driving and
driving under the influence of marijuana. He said that he was being honest and that his
lawyer had informed him he was admitting crimes. He said his lawyer helped write his
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affidavit. He said that he did not know whether he should go to Jackson or Memphis to
confess and that he met with his attorney. He said that his attorney prepared the statement
but that he told counsel what to write in the statement. He said counsel found the case
number to list on his statement because he did not know it.
Mr. Powell testified that the statement was dated July 25, 2011, that he did not come
to the Defendant’s preliminary hearing, and that he was not aware of the preliminary hearing
or the indictment. He said the Defendant told him what was happening in his case but did
not ask him to make a statement. He said that about three months before the trial, he told the
Defendant he was going to do something about the situation because he did not want to see
his friend go to jail for something he did. He said the Defendant explained to him how much
trouble he faced and told him he was going to be taken from his family for something Mr.
Powell did.
Mr. Powell testified that he went home after the Defendant was arrested and returned
to Jackson the next day to ensure the Defendant made bond. He said he did not take any
steps toward confessing from October 2010 until June 2011. He said he was curious about
the case but did not ask the Defendant. He said he met with his lawyer after the Defendant
told him how much trouble the Defendant faced and how the Defendant’s family was
jeopardized. He said that he spoke to the Defendant a couple of times between October and
July but that he acted distant toward the Defendant. He said that the October incident was
on his mind but that he did not mention it during his conversations with the Defendant
because he did not want to discuss it. He said the Defendant talked to him about the case
around the time it was set for trial but denied he was helping the Defendant. He said that the
marijuana was his and that he would not confess to a felony if the marijuana was the
Defendant’s. He said that he needed help coming forward with his confession because he
did not know the process and that the Defendant told him to contact a lawyer, which he did.
He agreed his written statement in the affidavit was not completely correct because he did
not hear the Defendant confess. He denied he had nothing to lose by coming forward
because he had a family and a job.
On redirect examination, Mr. Powell testified that he did not hear the Defendant
confess the drugs were his. He said he had not testified in court before and was not familiar
with the process. He said that he attended college one semester but dropped out and that no
one had promised him anything for testifying at the trial. He understood he could go to jail.
Upon this evidence, the jury convicted the Defendant of possession of a firearm with
the intent to go armed during the commission of a dangerous felony, possession of marijuana
with the intent to sell, possession of marijuana with the intent to deliver, and possession of
drug paraphernalia. The trial court merged the convictions for possession of marijuana with
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the intent to sell and possession with the intent to deliver. The court sentenced him to four
years’ confinement for the possession of a firearm conviction to run consecutively to a two-
year sentence for the possession of marijuana conviction and concurrently to an eleven-
months, twenty-nine-day sentence for the possession of drug paraphernalia conviction, for
an effective six-year sentence.
I
The Defendant contends that the evidence is insufficient to support his convictions.
The State counters that the evidence is sufficient to support the convictions. We agree with
the State.
Our standard of review when the sufficiency of the evidence is questioned on appeal
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 beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not reweigh the evidence but
presume that the trier of fact has resolved all conflicts in the testimony and drawn all
reasonable inferences from the evidence in favor of the State. See State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions about witness credibility are resolved by the jury. See State v. Bland, 958 S .W.2d
651, 659 (Tenn. 1997).
“‘A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.’” State v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005) (quoting State
v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998)). Circumstantial evidence alone may be
sufficient to support a conviction. State v. Richmond, 7 S.W.3d 90, 91 (Tenn. Crim. App.
1999); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). The standard of
proof is the same, whether the evidence is direct or circumstantial. State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the convicting evidence “‘is
the same whether the conviction is based upon direct or circumstantial evidence.’” Id.
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
The Defendant argues throughout his brief that “[t]he standard of review in
determining the sufficiency of the evidence on appeal is that ‘all other reasonable theories
except that of guilt are excluded,’” citing State v. Jones, 901 S.W.2d 651, 659 (Tenn. 1997).
In State v. Dorantes, our supreme court recognized that the United States Supreme Court had
specifically rejected the notion that the State had an affirmative duty to rule out every
hypothesis other than guilt. 331 S.W.3d 370, 380 (Tenn. 2011) (citing Jackson v. Virginia,
443 U.S. 307, 326 (1979)). Our supreme court noted that the “reasonable hypothesis”
language had been used particularly in Tennessee criminal cases when sufficiency of the
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circumstantial evidence was at issue. Id. The court adopted the same standard as the United
States Supreme Court that circumstantial and testimonial evidence should be treated the same
when weighing the sufficiency of the evidence. Id. The Defendant’s argument that the Jones
standard applies is incorrect.
In the light most favorable to the State, Mr. Powell was stopped by Officer Groves for
driving with his headlights off. Sergeant Long responded to the traffic stop and smelled
marijuana through the passenger window when speaking to the Defendant. Sergeant Long
asked the Defendant to step out of the car, and the Defendant told him marijuana was in his
sock. The Defendant also told Sergeant Long that he had his handgun permit and that his
gun was in the glove box. The officers searched the car, and Officer Stines found a yellow
bag containing marijuana, a scale, five or six cigarillos, and sandwich bags. After the search,
the Defendant claimed the contents of the yellow bag were his. Agent Harris tested the
substance, confirmed it was marijuana, and said it weighed 26.1 grams.
Relevant to the Defendant’s conviction for possession of a firearm with the intent to
go armed during the commission of a dangerous felony, “[i]t is an offense to possess a
firearm with the intent to go armed during the commission of or attempt to commit a
dangerous felony.” T.C.A. § 39-17-1324(a) (2010). A “dangerous felony” is defined as a
felony that involves the possession of a controlled substance with the intent to sell,
manufacture, or distribute it. Id. § 39-17-1324(i)(1)(L). Possession of marijuana not less
than one-half ounce, which is 14.175 grams, nor more than ten pounds, which is 4535 grams,
is a Class E felony. Id. § 39-17-417(g)(1). The Defendant’s convictions for possessing 26.1
grams of marijuana with the intent to sell and deliver were his qualifying dangerous felonies
under the statute.
The Defendant concedes that the State proved he possessed a gun but contends that
the State failed to prove that he had the specific intent to go armed when he sold marijuana.
Intent may be inferred from both direct and circumstantial evidence. State v. Washington,
658 S.W.2d 144, 146 (Tenn. Crim. App. 1983). The necessary intent to support a conviction
for carrying a weapon with the intent to go armed may be proven by circumstances
surrounding the carrying of the weapon. Cole v. State, 539 S.W.2d 46, 49 (Tenn. Crim. App.
1976). The purpose of going armed should be determined from the facts of each particular
case. Hill v. State, 298 S.W.2d 799 (Tenn. 1957).
The proof shows that the Defendant’s loaded gun was found in Mr. Powell’s glove
box in front of the Defendant’s seat. Mr. Powell testified that the Defendant was a licensed
armed security guard and “always traveled with his gun.” The Defendant admitted in his
brief that the State proved the Defendant owned the gun. From these facts and
circumstances, the jury could have concluded that the Defendant possessed the gun and
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intended to “go armed” because the evidence showed that he always traveled with his gun,
that the gun was loaded, and that the gun was in the glove box immediately in front of and
within reach of the Defendant. The jury also found the Defendant guilty of possession with
the intent to sell marijuana. Although the Defendant argues he carried the gun for his job as
an armed security guard and the evidence shows he had a valid handgun permit, “the plain
language of subsection (a) does not evidence a legislative intent to differentiate between
lawful or unlawful possession of a firearm.” See State v. Samuel Alan Ireson, No. E2010-
01648-CCA-R3-CD, slip op. at 7 (Tenn. Crim. App. June 10, 2011). The jury could have
reasonably concluded that the Defendant possessed the gun with the intent to go armed
during the commission of a dangerous felony.
Relevant to the Defendant’s conviction for possession with the intent to sell
marijuana, “[i]t is an offense for a defendant to knowingly . . . [p]ossess a controlled
substance with intent to manufacture, deliver or sell the controlled substance.” T. C. A. § 39-
17-417 (a)(4). The Defendant’s possession with the intent to sell 26.1 grams of marijuana
is a Class E felony.
The Defendant concedes in his brief that the State proved the substance found in Mr.
Powell’s car was marijuana, that the marijuana weighed 26.1 grams, and that the Defendant
owned the marijuana but contends that the State did not prove the Defendant sold or
delivered the marijuana as required by Tennessee Code Annotated section 39-17-417(a)(2)
and (3). Counts One and Two of the indictment charged that the Defendant “did unlawfully
and knowingly possess with the intent to sell a controlled substance” and “did unlawfully
and knowingly possess with the intent to deliver a controlled substance.” After the trial court
merged his convictions for possession of marijuana, the judgment for the conviction states
that the offense was possession of marijuana with the intent to sell. The conviction was not
an offense under section 39-17-417(a)(2) and (3) as the Defendant argues but was an offense
under section 39-17-417(a)(4).
“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.”
T. C. A. § 39-17-419 (2010); see State v. Eddie Lattimore, No. M2008-02124-CCA-R3-CD,
slip op. at 5 (Tenn. Crim. App. Nov. 18, 2010). At the trial, TBI Forensic Scientist
Shalandus Harris testified that the substance recovered from the car was marijuana and
weighed 26.1 grams. Sergeant Chris Long said that he found marijuana, a digital scale, and
plastic sandwich bags in the yellow bag and that in the Defendant’s sock, he found thirty-five
$100 bills, which were folded a couple of times and wrapped with a rubber band. Sergeant
Long said the scale was not illegal by itself but could be used by a marijuana smoker or
dealer. Taking this evidence in the light most favorable to the State, a reasonable jury could
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have inferred that these items, along with the amount of marijuana recovered, showed that
the Defendant possessed with the intent to sell 26.1 grams of marijuana. See State v. Ross,
49 S.W.3d 833, 845 (Tenn. 2001). This court cannot substitute its own inferences for those
drawn by the jury. See, e.g., State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).
Relevant to the Defendant’s conviction for possession of drug paraphernalia, “it is
unlawful for any person . . . to possess with 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.” T.C.A. § 39-17-425(a)(1). The
Defendant does not address his specific argument with his conviction for possession of drug
paraphernalia. In the light most favorable to the State, the record shows that the Defendant
claimed ownership of the contents of the yellow bag, which included the marijuana, a scale,
five or six cigarillos, and sandwich bags and that he had thirty-five $100 bills and a burnt
marijuana cigarette on his person. The Defendant told Sergeant Long that a friend gave him
the scale to weigh his marijuana for personal use because he liked his marijuana cigarettes
to contain exactly one gram. Sergeant Long said that the cigars and the digital scale seized
were not illegal by themselves but that they could be used by a marijuana smoker or dealer.
Mr. Powell admitted that the cigarillos were used to roll marijuana to smoke it. The evidence
sufficiently supports the jury’s finding that the Defendant possessed drug paraphernalia.
We conclude that the record supports the jury’s findings. The evidence is sufficient
to sustain the Defendant’s convictions for possession of a firearm with the intent to go armed
during the commission of a dangerous felony, possession of marijuana with the intent to sell,
and possession of drug paraphernalia.
In consideration of the foregoing and the record as a whole, the judgments of the trial
court are affirmed.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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