State of Tennessee v. Jaquarius D. Carpenter ( 2021 )

10/13/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 7, 2021
STATE OF TENNESSEE v. JAQUARIUS D. CARPENTER
Appeal from the Circuit Court for Madison County
No. 18-915 Roy B. Morgan, Jr., Judge
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No. W2020-00896-CCA-R3-CD
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Defendant, Jaquarius D. Carpenter, was convicted by a jury of possession with the intent
to sell 0.5 grams or more of cocaine, possession with the intent to deliver 0.5 grams or
more of cocaine, simple possession of marijuana, and possession of drug paraphernalia.
The trial court imposed an effective eighteen-year sentence, as a Range II multiple
offender, to be served in the Department of Correction. On appeal, Defendant contends
that the evidence is insufficient to support his convictions for possession with the intent to
sell or deliver cocaine and simple possession of marijuana. Following our review of the
entire record and the briefs of the parties, we affirm the judgments of the trial court.
Tenn. R. App. P.3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and NORMA MCGEE OGLE, JJ., joined.
J. Colin Morris, Jackson, Tennessee, for the appellant, Jaquarius D. Carpenter.
Herbert H. Slatery III, Attorney General and Reporter; Caroline Drinnon, Assistant
Attorney General, Andrew C. Coulam, Senior Assistant Attorney General; Jody S. Pickens,
District Attorney General; and Bradley Champine, Assistant District Attorney General, for
the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
This case arose when Defendant began selling drugs out of David Anthony Brown’s
apartment (“the apartment”) located at 139A Railroad Street in Jackson, Madison County.
The authorities developed Defendant as a person of interest and conducted stationary
surveillance on the apartment. On March 28, 2018, authorities executed a search warrant
of the apartment and arrested Defendant, along with Cortney Harvey, David Anthony
Brown, and Willie D. Brown, no relation. From the bathroom, officers retrieved a bag of
cocaine weighing 21.75 grams and a loaded handgun found in the toilet tank. Officers also
retrieved a bag of marijuana weighing 2.75 grams found on the living room floor.
A Madison County Grand Jury entered a true bill charging Defendant with
possession with the intent to sell 0.5 grams or more of cocaine (count one), possession with
the intent to deliver 0.5 grams or more of cocaine (count two), possession of marijuana
(count four), and possession of drug paraphernalia (count five). Willie D. Brown (“Willie
Brown”) and Cortney Harvey were also charged in the two counts involving the sale and
delivery of cocaine (counts one and two). Courtney Harvey, Willie Brown, and David
Anthony Brown (“David Brown”) were also charged in counts four and five.
David Brown was charged separately with possession of cocaine in count six. He
pled guilty to misdemeanor possession of a controlled substance and was sentenced to a
total effective sentence of eleven months, twenty-nine days on supervised probation. In
exchange for his plea, David Brown agreed to testify truthfully and consistently with his
statements and as a witness against his co-defendants and did in fact, testify as a State’s
witness. The case went to trial with Defendant, Mr. Harvey and Willie Brown as co-
defendants.
At the joint trial, Sergeant Troy Wayne Kelly, an officer in the Tennessee Counter
Drug Task Force, testified that he conducted surveillance on the apartment for possible
illegal drug activity. Sergeant Kelly had completed specialized training in reconnaissance
and area observation and was assigned to observe and log pedestrian and vehicle traffic to
and from the apartment and note any distinct traffic patterns. He was also assigned to keep
a lookout for Defendant, who was identified as a person of interest. Sergeant Kelly was
informed that Defendant drove a white Chevy sedan.
Sergeant Kelly surveilled the apartment in the two days leading up to the execution
of the warrant and on the day the warrant was executed on March 28, 2018. Sergeant Kelly
first observed Defendant park his white Chevy sedan in the driveway and enter the
apartment on the second day of surveillance. Sergeant Kelly assumed that Defendant lived
there because he let himself in with a set of keys and entered and exited the apartment “at
least three to four times” by himself in the same manner that day and also two to three
times the following day before the authorities executed the search warrant. Sergeant Kelly
observed foot and vehicle traffic to and from the residence. Altogether, he saw “ten or
more people” enter the apartment on Monday and Tuesday. He also observed “[a] lot of
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vehicle traffic coming to the residence.” Sergeant Kelly observed a steady stream of people
entering and leaving the apartment while Defendant was inside.
Sergeant Kelly photographed Defendant on the second day of the surveillance. Four
photographs of Defendant entering and exiting the apartment were exhibited to the jury.
Sergeant Kelly conceded that none of the photographs showed Defendant selling drugs or
smoking marijuana. Because he was conducting stationary surveillance outside the
apartment, Sergeant Kelly did not get a look inside. He acknowledged that heavy traffic
alone does not constitute conclusive proof of illegal drug activity at a residence but is one
of several factors to consider when investigating drug activity.
James Gibbons, Jr., was among the officers on the Jackson City Police Department
SWAT team who executed the search warrant on the apartment on March 28, 2018. Officer
Gibbons was on the entry team and was the “number one guy through the door” when
entering the residence. Upon entering the apartment, Officer Gibbons saw five people in
the living room: Defendant, Willie Brown, David Brown, Mr. Harvey, and an unidentified
woman. All five people scattered to the kitchen or the bathroom when the SWAT team
entered the apartment. Defendant, Willie Brown, David Brown, and the unidentified
woman complied with Officer Gibbons’s instructions to surrender and exited the apartment
without incident. By process of elimination, Officer Gibbons knew that one person
remained in the house and that the person could only be in one other room: the bathroom.
The bathroom door remained closed although Officer Gibbons had already announced the
presence of the SWAT team and instructed everyone to surrender. He opened the door to
the bathroom and saw Mr. Harvey, alone, lying face down on the floor. Because Officer
Gibbons was tasked in securing the area, he did not collect any evidence or come in contact
with any drugs or a weapon. He testified that he did not see Mr. Harvey with a weapon
when he opened the bathroom door.
Robert Pomeroy, an investigator with the Jackson Police Department and an officer
in the Metro Narcotics unit, was assigned to the rear of the apartment during the execution
of the search warrant. Investigator Pomeroy’s task was to “port the window”, which he
explained involved breaking the bathroom window of the apartment to prevent an occupant
from destroying or flushing evidence and as a diversionary tactic as the SWAT team
entered the front of the apartment. Upon breaking the bathroom window, Investigator
Pomeroy saw Mr. Harvey, alone and crouched down on the bathroom floor. Investigator
Pomeroy instructed Mr. Harvey to show his hands until the SWAT team could detain him.
Because he was tasked with porting the window and detaining any occupants, Investigator
Pomeroy did not search the bathroom or any other room in the apartment. He learned later
that some narcotics and a firearm were found in the bathroom.
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Mark Taylor, an investigator in the Madison County Sheriff’s Office with over 800
hours of training in narcotics enforcement, testified that he assisted in the search of the
apartment and located a bag of what appeared to be crack cocaine in the bathroom, a digital
scale in a kitchen drawer, and another larger digital scale on the kitchen counter. After he
refreshed his recollection with the incident report, Investigator Taylor testified that he field-
tested residue observed on the larger digital scale. The residue tested presumptively
positive for cocaine. He could not recall specifically whether he field-tested the substance
found in the bathroom. He explained that an investigation does not stop with a presumptive
positive field test and that all substances are sent to the Tennessee Bureau of Investigation
(“TBI”) crime laboratory for additional testing as he confirmed was done in this case.
Investigator Taylor testified that he was trained and educated on the street value of
narcotics and how dealers weigh and package drugs for resale. Based on his training and
experience, Sergeant Kelly opined the presence of digital scales, cocaine positive residue
on one of the scales, and the “big” amount of cocaine found in the bathroom “absolutely”
suggested cocaine for the purpose of resale and not for personal use. He explained that
dealers use digital scales to measure and weigh cocaine so that their customers will know
how much product they are purchasing. According to Sergeant Kelly, 20 grams of cocaine
is considered “a lot” because it is sold in increments of a tenth of a gram. For instance, he
testified that a tenth of a gram will generally sell for $10, two-tenths of a gram of cocaine
will typically sell for $20 and a half gram of cocaine will typically sell for $50. If all of
the 20 grams of cocaine were sold in smaller increments, it could generate $20,000. He
explained further that crack cocaine is measured and sold in quantities of a tenth of a gram
and classified as “rocks.” He added that different factors such as the relationship between
the dealer and the user, whether the parties know and trust each other, and the purity of the
cocaine, will determine the price.
Emily Salao McDonald, a detention specialist with the Madison County Sheriff’s
Office, testified that she recovered a plastic bag containing a substance in Mr. Harvey’s
wallet when he was being booked. Mr. Harvey identified the substance as cocaine. The
parties stipulated to the laboratory report confirming that the substance found in Mr.
Harvey’s wallet was cocaine. Mr. Harvey was not charged with the cocaine found in his
wallet.
Clarence Calvin Benard, a detention specialist with the Madison County Sheriff’s
Office, testified that he and two other detention specialists, Sergeant Pruitt and Officer
Hogg, oversaw a strip search of Willie Brown during his booking. Officer Benard testified
that a small plastic bag fell from Willie Brown’s groin area as he coughed while in a
squatted position. Willie Brown denied that the bag belonged to him. Willie Brown was
charged with introducing cocaine into a correctional facility (count three).
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David Brown testified that he was arrested on March 28, 2018, with Defendant,
Willie Brown, Mr. Harvey, Carlson Cole, and Debra Ellison who was David Brown’s
girlfriend at the time his apartment was searched. He was charged in the case with
Defendant, Mr. Harvey, and Willie Brown. Neither Ms. Ellison nor Mr. Colson was
charged in the case. David Brown accepted the State’s offer to testify in the case in
exchange for a probationary sentence of eleven months, twenty-nine days for misdemeanor
possession of a controlled substance. He agreed that he had been arrested “plenty of times”
resulting in convictions of “several crimes.” He acknowledged that he had already violated
his probation in the case twice for testing positive for crack cocaine and had recently
violated his probation a third time for yet another failed drug test. David Brown explained
that he had been addicted to crack cocaine “on and off” for twenty years and first tried
crack in the late 1980s. He began drawing disability in 2014. He denied that he was a drug
dealer.
David Brown explained that he met Defendant through a neighbor “a couple of
months or more” before the warrant to search his apartment was executed. Defendant
would stop by David Brown’s apartment to “smoke a little weed” and play video games.
Defendant usually came over with his cousin, Mr. Harvey. Although David Brown did not
know Defendant very well, he gave Defendant a key to his apartment. David Brown also
permitted Mr. Harvey to stay overnight because Mr. Harvey reportedly did not have a place
to stay. Defendant was aware that David Brown smoked crack cocaine because Defendant
would leave him some crack cocaine in the apartment along with some marijuana.
David Brown met Willie Brown for the first time when his apartment was searched.
David Brown recalled that Defendant, Mr. Harvey, and Willie Brown had come to his
apartment so that Mr. Harvey could give Willie Brown a haircut. David Brown was
surprised by the amount of crack cocaine found in his apartment. He denied that the
cocaine was his because he could not afford that much cocaine.
While David Brown’s testimony regarding his record, his plea agreement, and the
preliminary facts of the case were clear and affirmative, the remainder of his testimony was
equivocal and uncertain. For instance, during his initial testimony, the State asked him a
series of questions about what he told investigators on March 28, 2018, about Defendant,
Mr. Harvey, and the events leading up to the search of his apartment. For many of the
questions, David Brown could not recall “exactly” what he told the investigators because
the interview took place more than “a year and a half ago.” Additionally, he could not
recall whether he told investigators that Defendant had given him half a gram of cocaine
for working at his car wash, whether he saw Mr. Cole buy crack cocaine in his apartment,
or whether he saw a woman named “Pam” buy cocaine at the apartment the night before
the search. In response to some of the same questions, David Brown added that “he may
have” told investigators that Defendant gave him cocaine in lieu of cash for working at his
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car wash and that the cocaine found in his bathroom belonged to Defendant and Mr.
Harvey. And although “Pam” may have stopped by his apartment before the raid, David
Brown did not know whether she had any dealings with Defendant because he was in his
room when she came over.
When asked whether he told investigators that Defendant and Mr. Harvey sold crack
cocaine out of his apartment, David Brown replied that he was “not in [his] right mind at
the time because [he] had been using.” He testified that he did not witness Defendant or
Mr. Harvey sell drugs in his apartment. He suspected that they “may have” been using his
apartment to sell cocaine and that the cocaine found in his bathroom “may have” belonged
to Defendant. He maintained that he did not know “exactly” what they did in his apartment
other than “smoke weed” and “sit around.” However, David Brown confirmed that he told
Defendant and Mr. Harvey to stop selling cocaine out of his apartment. When they refused
to stop, David Brown dropped the matter and began staying in his room. And although it
was his apartment, David Brown admitted that he put a bucket in his bedroom so that he
and his girlfriend could relieve themselves without leaving the room and having to deal
with Defendant.
Despite his poor recollection about much of his statement, David Brown denied
telling investigators that Defendant physically assaulted him and that Defendant had
promised to post Mr. Harvey’s bond if Mr. Harvey accepted responsibility for the cocaine
and the gun found in the bathroom. Regarding Defendant’s assaultive behavior, David
Brown testified instead that Defendant brought someone to the apartment to physically
assault him. This was yet another reason David Brown remained in his bedroom or “stayed
gone a whole lot” out of his own apartment. David Brown reluctantly revealed that he felt
“threatened” and “intimidated” by Defendant because he was affiliated with a gang. David
Brown feared that Defendant would harm his children because he always made a point to
mention them. David Brown was fearful of Mr. Harvey because of his close association
with Defendant. Because of Defendant’s gang affiliation, David Brown declined to involve
the police in Defendant’s actions.
At the conclusion of David Brown’s testimony, the State moved to introduce
selected portions of David Brown’s audio-recorded statement as substantive evidence
during the testimony of Investigator Dennis Ifantis, an officer in the Madison County
Sheriff’s Office. See Tenn. R. Evid. 803(26) (exception to hearsay permitting a prior
inconsistent statement to be treated as substantive evidence). The State clarified during a
hearing outside the presence of the jury that David Brown had given two statements six
days apart. During the questioning of David Brown, the State had not distinguished
between the two statements. It was undisputed that all parties had received both statements
in discovery.
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At the jury-out hearing, Investigator Ifantis testified that David Brown gave a
written statement on March 29, 2018, the day after his arrest while he was being held with
Defendant. Four days later, after David Brown was no longer in the same holding cell with
Defendant, he reached out to investigators to talk about the case a second time and gave a
second statement on April 4, 2018, which was audio-recorded.
Investigator Ifantis testified that on April 4, 2018, he had asked David Brown
whether Defendant and Mr. Harvey had intimidated him into selling drugs out of his
apartment. The State identified and played four selections from the recorded statement. In
the first selection, David Brown stated that he had “no choice” but to let Defendant sell
narcotics out of his apartment. He feared that Defendant would harm his three children or
kill one of his sons who was in prison. In the second selection, David Brown stated that
he was “scared” to call the police because he feared that Defendant would harm his
children. David Brown and his girlfriend would keep to themselves in the back bedroom
whenever Defendant and Mr. Harvey were in his apartment. David Brown “couldn’t say
anything earlier (first statement)” because he and Defendant were in the same holding cell.
David Brown sent “notes” to the police requesting another interview after he and Defendant
were “separated.” In the third selection, David Brown told investigators that he was afraid
Defendant would “retaliate” against him. David Brown stated that he had been “hit” and
had taken “unnecessary punches” from Defendant. David Brown was also fearful of Mr.
Harvey. In the fourth and final selection, David Brown again stated that Defendant hit him
when he told Defendant to stop selling crack cocaine out of his apartment. He pointed to
a scar on his body. David Brown “hate[d]” the situation because he and his girlfriend were
“getting along.” For each selection played, the transcript indicates the time marker of the
beginning of the selection, but does not indicate when the recording stopped playing.
The trial court denied the State’s motion to admit the recorded audio statement as
substantive evidence but permitted the State to recall David Brown for questioning and to
use the statement for the limited purpose of impeachment. See Tenn. R. Evid 613. David
Brown was recalled over the objections of Defendant and Mr. Harvey. On recall, David
Brown testified that he gave both the written statement on March 29, 2018, and the audio
recorded statement on April 4, 2018. He reviewed the first statement wherein he accused
Defendant and Mr. Harvey of selling crack cocaine out of his apartment. In the same
statement, David Brown admitted that Mr. Harvey would give him crack cocaine for using
his apartment. During his prior testimony, David Brown insisted that he only suspected
Defendant and Mr. Harvey of selling cocaine out of his apartment and that Mr. Harvey had
given him some cocaine.
As for the second statement, David Brown agreed that investigators met him at his
request. David Brown insisted that he “never” told investigators that Defendant had
assaulted him. He maintained that Defendant had someone else assault him. The State
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then moved to impeach David Brown by playing selections from the second statement.
Without objection, four selections from David Brown’s April 4, 2018, audio statement
were played for the jury. While the transcript does not identify which selections were
played for the jury, based on David Brown’s responses it appears they were the same
selections played during the prior jury-out testimony of Investigator Ifantis.
In the second statement, David Brown alleged that Defendant had physically
assaulted him when David Brown asked Defendant to stop selling cocaine out of his
apartment, that Defendant and Mr. Harvey were selling cocaine out of his apartment, that
Defendant had “paid” him with half a gram of cocaine for working at his car wash, that a
woman named “Pam” purchased crack from Defendant before the police arrived to search
his apartment, and that Defendant promised to post Mr. Harvey’s bond if Mr. Harvey
accepted the drug and gun charges. After each selection of the audio recording was played,
David Brown identified his voice on the recording and acknowledged what he had told
investigators about the case.
Dennis Ifantis testified that at the time of the search warrant in March 2018, he was
the lead investigator of the case and an officer in the Jackson-Madison County Metro
Narcotics Unit. Investigator Ifantis testified as an expert in narcotics trades, sales and
practices without objection. Investigator Ifantis prepared and executed the search warrant
on David Brown’s apartment on March 28, 2018. He also photographed the evidence that
was collected at the scene which included a bag of marijuana in the living room floor.
Some of the marijuana had spilled onto the floor. Investigator Ifantis testified that the bag
was within reach of the three people arrested in the living room: Defendant, Willie Brown,
and David Brown. He explained that the apartment was barely one thousand square feet
and was very small.
Investigator Ifantis also collected a crack pipe and a spark plug which had been
fashioned into a crack pipe for resale. Powdery residue found on a digital scale field tested
positive for cocaine. A bag of crack cocaine was found on the bathroom floor near the tub
and a loaded .32 caliber semi-automatic pistol was found in the toilet tank. A live .32
caliber round was found on the kitchen floor. Defendant had $630 in cash on his person.
Investigator Ifantis also searched the vehicle parked outside the apartment and observed
marijuana roaches in the ashtray. A letter addressed to Mr. Harvey was also found in David
Brown’s apartment.
Investigator Ifantis’s testimony was consistent with Investigator Taylor’s testimony
regarding the likely purpose of the cocaine found in the apartment. Investigator Ifantis
opined that the amount of cocaine found in the bathroom suggested possession for resale
and not for personal use. He testified that cocaine in excess of 20 grams usually suggests
possession for resale. He explained that the average user does not keep “that much
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[cocaine] on them.” He explained further that the street value of crack cocaine is measured
and priced based on tenths of a gram: $10 for one-tenth of a gram, $20 for two-tenths of a
gram, and $50 for five-tenths of a gram. He testified that a typical user will purchase $20-
$40 worth of cocaine at one time which is sufficient for a user “to get high.” He added that
a user will smoke crack as soon as they get it rather than carry it around because doing so
would be impractical.
Like Investigator Taylor, Investigator Ifantis testified that digital scales are used to
weigh and measure cocaine for resale. He explained further that drug dealers often use a
gun to provide security because they will not call the police if they are robbed or assaulted
during a transaction. Investigator Ifantis testified that the amount of cocaine, the presence
of digital scales, the firearm, the large amount of cash in Defendant’s possession, and the
volume of foot traffic to David Brown’s apartment were strongly indicative of illegal
narcotic trafficking.
Investigator Ifantis testified that based on his training and experience, Defendant
and Mr. Harvey were using David Brown’s apartment to elude law enforcement and
prosecution efforts. He described David Brown’s apartment as a “trap house” where drug
dealers would use the home of an acquaintance or a user to sell drugs. He explained that
dealers commonly conduct illegal drug transactions in someone else’s home to elude law
enforcement. He described David Brown as the kind of person a drug dealer would target
because David Brown was addicted to crack and could be easily “manipulated and abused.”
In this instance, Defendant exploited David Brown’s addiction to use his apartment as a
“trap house” to sell drugs and avoid prosecution.
Investigator Ifantis interviewed David Brown both times. He testified that David
Brown did not exhibit any signs of impairment or being under the influence of a controlled
substance. He explained that he was in no position to promise David Brown anything and
that only the District Attorney’s office could negotiate a settlement offer.
Investigator Ifantis also interviewed Willie Brown and Mr. Harvey. Willie Brown
stated that he drove Defendant and Mr. Harvey to David Brown’s apartment but stayed to
get his hair cut. He was at the apartment thirty to forty-five minutes when “the police
raided the house.” He admitted that the marijuana roaches found in the car belonged to
him. He denied knowing “anything about the cocaine” that fell from his body when he
was searched in the county jail.
Mr. Harvey informed Investigator Ifantis that he ran to the bathroom when the
police raided the apartment. Mr. Harvey admitted that the gun and the ounce of cocaine
found in the bathroom belonged to him as well as the marijuana found in the living room.
Mr. Harvey also admitted to selling crack “occasionally” but declined to identify his
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source. Investigator Ifantis did not charge Defendant with a gun charge because Mr.
Harvey insisted that the gun was his.
TBI Special Agent Carter DePew testified as an expert in forensic chemistry and
drug identification. Agent DePew tested three substances retrieved from the apartment.
He testified that a bag retrieved from the apartment weighed 21.75 grams and tested
positive for cocaine. A second bag retrieved from Willie Brown likewise tested positive
and weighed 1.99 grams. A third bag retrieved from the living room was positive for
marijuana and weighed 2.75 grams
Defendant and Willie Brown did not testify. Mr. Harvey, age forty, exercised his
right to testify. He was in the courtroom and therefore heard the testimonies of the State’s
witnesses. He confirmed that he was in the bathroom along with a bag of cocaine and a
firearm when the police executed the search warrant on David Brown’s apartment. Mr.
Harvey testified that he went to David Brown’s apartment after he finished working at
Defendant’s car wash. He admitted that he went there to get “high” and used the money
he earned from working at the car wash to purchase crack from Defendant, who is his
cousin. Mr. Harvey paid $20 for a “whole twenty piece” of crack cocaine. Mr. Harvey
testified that he had been a drug addict for fifteen years and had commonly used cocaine,
heroin, and crack cocaine to feed his addiction. He added that he used both crack and
heroin the day the warrant was executed. Mr. Harvey was not alone in going to the
apartment to get high. He recalled seeing a man named Joshua Johnson getting high at the
apartment along with a “houseful of folks.”
As Mr. Harvey was getting high, he heard a knock on the front door. He answered
the door and saw a woman named “Pam.” She had come over to buy crack cocaine from
Defendant. Mr. Harvey testified that he witnessed the transaction. The police executed
the warrant after Pam left.
Mr. Harvey testified that he and Defendant ran to the bathroom when the police
“hit the door.” Mr. Harvey dropped to the floor when he heard police at the bathroom
window. Defendant however, exited the bathroom and slammed the door behind him. Mr.
Harvey denied that the bag of cocaine or the gun found in the bathroom was his or that he
put them there. He was unaware that there were any drugs in the bathroom and likewise
had “no idea” why the gun was stored in the toilet. He had never seen the gun until the day
of the search warrant. He denied that Defendant gave him the gun for protection or to hide
it in the toilet. He also denied seeing Defendant put the gun in the toilet tank. He finally
admitted that “[he] lied then” about owning the gun.
According to Mr. Harvey, Defendant promised to post his bond and get him an
attorney if he took the gun charge. Defendant however, never posted Mr. Harvey’s bond.
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He did not agree to take the cocaine charge or accept responsibility for the cocaine found
in the bathroom despite his statement to the contrary. He explained that he had used
marijuana the night before he gave his statement and therefore was not “in [his] right
mind.” Mr. Harvey testified that he had no prior convictions for drug or weapons charges
and only had a prior conviction for driving on a suspended license.
Mr. Harvey testified that he did not know whether Defendant regularly sold drugs
out of David Brown’s apartment. However, on cross-examination by Willie Brown’s
counsel, Mr. Harvey testified that he had been regularly going to David Brown’s apartment
to purchase crack from Defendant three weeks leading up to the police raid. He repeatedly
denied that he was a drug dealer.
Although he correctly identified the amount of cocaine found in the bathroom, Mr.
Harvey denied that he knew how much was in the bag. He did not recall telling the police
that there was an ounce of cocaine in the bag found in the bathroom. He also denied that
the bag was found next to him on the floor of the bathroom. He intended to take the gun
charge only.
Mr. Harvey testified that the cocaine found in his wallet was the leftover stash he
purchased from Defendant that very evening. On redirect examination, Mr. Harvey
clarified that he intended to take responsibility for the gun and the cocaine found in his
wallet, not the 20 grams of cocaine found in the bathroom. He later testified that
Investigator Ifantis failed to amend his statement accordingly. In addition to the two felony
drug charges, Mr. Harvey was charged with tampering with evidence, employing a firearm
during the commission of a dangerous felony, and possession of a firearm.
Mr. Harvey rested his case, and Willie Brown called Joshua Johnson to the stand.
Mr. Johnson testified that he went to David Brown’s apartment on March 28, 2018, to give
Defendant and Willie Brown haircuts. He stayed there about forty-five minutes to give
both men haircuts and left fifteen to twenty minutes before the police arrived. He recalled
seeing seven people in the apartment while he was there. Mr. Harvey was already in the
apartment when he arrived. According to Mr. Johnson, Mr. Harvey was using drugs in the
kitchen near the bathroom, and a gun was plainly visible on the kitchen table near him. Mr.
Johnson testified that he saw powder cocaine but not crack cocaine. Mr. Johnson admitted
that he used drugs while he was at the apartment. He later clarified that he was already
high on cocaine when he got to the apartment. Despite being high, Mr. Johnson maintained
that he was fully alert and had no problems cutting hair. He observed foot traffic to and
from the house. Altogether, he observed five people he did not know enter and exit the
bathroom. Mr. Johnson testified that Mr. Harvey answered the door and led each person
to the bathroom. Because Mr. Johnson did not go to the bathroom, he did not know what
was going on inside.
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The State recalled Investigator Ifantis in response to Mr. Harvey’s testimony about
his statement. Investigator Ifantis recalled taking Mr. Harvey’s statement the day after his
arrest. He testified he was knowledgeable about various signs of impairment based on his
training and experience. He testified that Mr. Harvey did not exhibit any of the telltale
signs of impairment. He added that if Mr. Harvey had been impaired, he would not have
interviewed Mr. Harvey because any statement given under the influence would not be
reliable or constitutional.
Investigator Ifantis confirmed that Mr. Harvey reviewed the statement and was
given the opportunity to make any changes. Mr. Harvey signed the statement after
reviewing it. Investigator Ifantis crossed out the extra space in the statement so that nothing
could be added after Mr. Harvey had reviewed and signed it. Mr. Harvey was not told
about the field weight of the crack cocaine found in the bathroom before giving his
statement.
Investigator Ifantis testified that Defendant and Mr. Harvey were in the same
holding cell before Mr. Harvey gave his statement. Although co-defendants are separated
to keep them from talking about the case, Investigator Ifantis stated that Defendant and Mr.
Harvey had plenty of time to talk about the case before Mr. Harvey gave his statement.
Investigator Ifantis opined that Mr. Harvey’s statement was coerced and that at the time of
trial was still under Defendant’s influence.
Based on the proof, the jury convicted Defendant as charged in the four counts. The
trial court merged counts one and two and sentenced Defendant, a Range II multiple
offender, to eighteen years for possession with the intent to sell cocaine and eleven months,
twenty-nine days on each count of possession of marijuana and possession of drug
paraphernalia. The trial court ran all three sentences concurrently with but consecutively
to sentences in two other Madison county cases. It is from these judgments that Defendant
filed a timely appeal.
Analysis
On appeal, Defendant claims that the evidence is insufficient to support his
conviction for possession with the intent to sell or deliver cocaine and simple possession
of marijuana. However, Defendant devotes his argument to challenging only his felony
cocaine possession conviction. He argues that the proof lays the blame squarely on co-
defendant Cortney Harvey and that this court should reject portions of Mr. Harvey’s
testimony that are inconsistent with Mr. Harvey’s statement to the police. He also urges
the court to reweigh the proof consistent with his position that Mr. Harvey, alone, possessed
the cocaine found in the bathroom with the intent to sell or deliver. Similarly, Defendant
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contends that portions of David Brown’s statement accusing him of selling crack cocaine
out of his apartment should have been discounted because David Brown was not in his
“right mind” at the time he made his statement. Defendant also points out that surveillance
of David Brown’s apartment two days before the raid did not generate any proof of his
engagement of any illegal activity much less a drug transaction. We decline to reweigh the
proof in our analysis. We conclude a rational juror could infer that Defendant had the
power and intention to exercise dominion and control over the cocaine found in the
bathroom and possessed it with the intent to sell it out of David Brown’s apartment.
Moreover, Defendant’s issue regarding his simple marijuana conviction is waived because
he failed to support it with argument.
When a defendant challenges the sufficiency of the evidence, this court is obliged
to review that claim according to certain well-settled principles. A guilty verdict removes
the presumption of innocence and replaces it with a presumption of guilt. State v. Allison,
618 S.W.3d 24, 33 (Tenn. 2021); State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017). The
burden is then shifted to the defendant on appeal to demonstrate why the evidence is
insufficient to support the conviction. State v. Jones, 589 S.W.3d 747, 760 (Tenn. 2019).
The relevant question the reviewing court must answer is whether any rational trier of fact
could have found the accused guilty of every element of the offense beyond a reasonable
doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979). On
appeal, “all reasonable and legitimate inferences from the evidence must be drawn in favor
of the prosecution and all countervailing evidence discarded.” State v. Weems, 619 S.W.3d
208, 221 (Tenn. 2021). As such, this court is precluded from re-weighing or reconsidering
the evidence when evaluating the convicting proof. Id. (citing State v. Stephens, 521
S.W.3d 718, 724 (Tenn. 2017)). Questions concerning the credibility of the witnesses and
the weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. Allison, 618 S.W.3d
at 34; Jones, 589 S.W.3d at 760. “This standard of review is identical whether the
conviction is predicated on direct or circumstantial evidence, or a combination of both.”
State v. Williams, 558 S.W.3d 633, 638 (Tenn. 2018) (citing State v. Dorantes, 331 S.W.3d
370, 379 (Tenn. 2011)).
In Tennessee, “[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). Possession of a controlled substance may be actual or
constructive. State v. Robinson, 400 S.W.3d 529, 534 (Tenn. 2013) (citing State v. Shaw,
37 S.W.3d 900, 903 (Tenn. 2001)). A person constructively possesses contraband when
he has “‘the power and intention at a given time to exercise dominion and control over . . .
[the drugs] either directly or through others.’” Shaw, 37 S.W.3d at 903 (quoting State v.
Patterson, 966 S.W.2d 435, 444-45 (Tenn. Crim. App. 1997)). Mere presence in an area
where drugs are discovered, or association with a person who is in possession of drugs,
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without more, is insufficient to support a finding of constructive possession. Constructive
possession rests on the totality of the circumstances of each case and may be proven by
circumstantial evidence. T.C.A. § 39-17-419 (possession may be inferred from “relevant
facts surrounding the arrest”).
Likewise, “intent” 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.” Id. § 39-17-419. Such “other relevant facts” that can give rise to
an inference of intent to sell or deliver include the weight and street value of the drugs, the
packaging of the drugs, the presence of a large amount of cash, and the presence of
weapons. See State v. Nelson, 275 S.W.3d 851, 867 (Tenn. Crim. App. 2008) (sufficient
circumstances from which the jury could reasonably infer that the defendant intended to
sell the cocaine where defendant was spotted in a location known for illegal drug sales, in
possession of cocaine inconsistent with personal use, coupled with $114 in cash and a
check for an unspecified amount); State v. Logan, 973 S.W.2d 279, 281 (Tenn. Crim. App.
1998) (a large amount of cash found in conjunction with several small bags of cocaine
provided sufficient evidence of intent to sell); State v. Brown, 915 S.W.2d 3, 8 (Tenn.
Crim. App. 1995) (the absence of drug paraphernalia and the manner of packaging of drugs
supported an inference of intent to sell); State v. Matthews, 805 S.W.2d 776, 782 (Tenn.
Crim. App. 1990) (finding testimony of amount and street value of 30.5 grams of cocaine
was admissible to infer an intention to distribute).
Defendant argues that the State failed to establish that he, rather than Mr. Harvey,
possessed the cocaine found in the bathroom and that, like the gun charge, he should not
have been charged and convicted. Viewing the proof in the light most favorable to the
State and discarding all countervailing proof, the evidence shows Defendant exploited
David Brown’s addiction to cocaine and used David Brown’s apartment as a “trap house”
to sell cocaine in order to avoid the detection of law enforcement. Knowing David Brown’s
addiction, Defendant “paid” him with cocaine for working at his car wash and left cocaine
and marijuana for using his apartment. When David Brown asked him not to sell cocaine
out of his apartment, Defendant physically assaulted David Brown. “Threatened” and
“intimidated,” David Brown declined to involve the police and chose instead to remain in
his bedroom or stay out of his own home while Defendant and Mr. Harvey were there.
Furthermore, Defendant had a set of keys to enter the apartment and was observed
entering and exiting David Brown’s apartment several times as if it were his own home.
There was constant foot and vehicle traffic to the apartment while Defendant was inside.
Mr. Harvey and Mr. Johnson corroborated David Brown’s statement that Defendant was
selling narcotics out of David Brown’s apartment. Mr. Harvey testified that he had been
regularly buying crack from Defendant at David Brown’s apartment and had bought
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cocaine the day the warrant was executed. He and David Brown saw Defendant sell crack
to “Pam” on the same day. Mr. Johnson saw five people come to the apartment and go
directly to the bathroom where 21.75 grams of cocaine was later found. By their verdict,
the jury accredited Mr. Harvey’s testimony that he and Defendant ran into the bathroom
when the police began their raid. The jury likewise accredited David Brown’s statement
that Defendant promised to post Mr. Harvey’s bond if he claimed ownership of the cocaine
and gun.
The proof established that Defendant possessed the power and intent to exercise
dominion and control over David Brown, David Brown’s apartment, and the drugs found
in David Brown’s apartment, namely, the crack cocaine found in the floor of the bathroom
when the police executed the search warrant. Moreover, the jury was free to infer from the
amount of cocaine, the presence of two digital scales, the large amount of cash on
Defendant, and a gun hidden in the toilet tank near the bag of crack cocaine, that defendant
possessed the intent to sell cocaine.
Lastly, Defendant’s issue regarding the sufficiency of his marijuana possession
conviction is waived because he has provided no argument or citations in support of this
issue. Generally, “[i]ssues which are not supported by argument, citation to authorities, or
appropriate references to the record will be treated as waived in this court.” Tenn. Ct.
Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7). Accordingly, it is waived. Waiver
notwithstanding, from this proof, we conclude a rational juror could infer that Defendant
had the power and intention to exercise dominion and control over marijuana found in the
living room when the police raided the apartment. Defendant was within reach of the
marijuana and able to exercise dominion and control of it. The proof is therefore sufficient
to support Defendant’s conviction for simple possession of marijuana. Defendant is not
entitled to relief.
Conclusion
For the foregoing reasons, the judgments of the trial court are affirmed.
____________________________________
JILL BARTEE AYERS, JUDGE
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