State v. Lorenzo Perry ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
SEPTEMBER 1999 SESSION
Ocotober 21, 1999
Cecil Crowson, Jr.
Appellate Court Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9901-CR-00005
Appellee, )
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT,
LORENZO N. PERRY, ) JUDGE
)
Appellant. ) (Possession of Cocaine
With Intent to Deliver)
FOR THE APPELLANT: FOR THE APPELLEE:
A.C. WHARTON PAUL G. SUMMERS
Shelby County Public Defender Attorney General and Reporter
WALKER GWINN PETER M. COUGHLAN
Assistant Public Defender Assistant Attorney General
201 Poplar Avenue, Suite 201 Cordell Hull Building, 2nd Floor
Memphis, TN 38103-1947 425 Fifth Avenue North
(On Appeal) Nashville, TN 37243-0493
CHARLES WALDMAN WILLIAM L. GIBBONS
147 Jefferson Avenue District Attorney General
Suite 1102
Memphis, TN 38103-2218 SCOTT D. GORDON
(At Trial) Assistant District Attorney General
201 Poplar Ave., Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE
OPINION
A Shelby County jury found defendant guilty of possession of .5 grams or
more of cocaine with intent to deliver. In this appeal as of right, defendant claims
the evidence was insufficient to sustain the conviction. We find the evidence is
sufficient to support the verdict and AFFIRM the judgment below.
FACTS
On February 12, 1997, two police officers with the Shelby County organized
crime unit were patrolling an area known for drug activity. The officers witnessed
a woman give defendant an unknown amount of money in exchange for an
unidentified substance. The officers pulled up behind the defendant, and one of the
officers exited the vehicle. When the defendant saw the officer, he ran and the
officer pursued him. The second officer then exited the vehicle, told the woman to
remain where she was, and went around the building in an attempt to cut off the
defendant’s escape route.
While the defendant was being chased, one of the officers observed the
defendant throw a package. After apprehending the defendant, the officer retrieved
the package and conducted a field test on the substance contained in the package.
The field test was positive for cocaine. Laboratory tests determined the substance
to be 4.5 grams of cocaine.
DEFENDANT’S CONTENTIONS
The defendant claims that the State failed to prove the package containing
cocaine was in the defendant’s possession. The defendant contends that since
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officers never found cocaine on his person, or on that of the woman who allegedly
gave him money, no rational trier of fact could find him guilty of possession of
cocaine with intent to deliver. In addition, defendant argues the State failed to
provide an adequate chain of custody to show the substance tested was from the
package found at the scene.
STANDARDS OF REVIEW
A. Sufficiency of the Evidence
Although the evidence of defendant’s guilt is circumstantial in nature,
circumstantial evidence alone may be sufficient to support a conviction. State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Buttrey, 756 S.W.2d 718,
721 (Tenn. Crim. App. 1998). However, for this to occur, the circumstantial
evidence must be consistent with guilt of the accused, inconsistent with innocence,
and must exclude every other reasonable theory or hypothesis except that of guilt.
Tharpe, 726 S.W.2d at 900.
While following the above guidelines, this Court must remember that the jury
decides the weight to be given to circumstantial evidence and that “[t]he inferences
to be drawn from such evidence, and the extent to which the circumstances are
consistent with guilt and inconsistent with innocence are questions primarily for the
jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn. 1958); see also State v.
Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993); State v. Coury, 697
S.W.2d 373, 377 (Tenn. Crim. App. 1985).
When reviewing the trial court's judgment, this Court will not disturb a verdict
of guilt unless the facts in the record and inferences which may be drawn from it are
insufficient as a matter of law for a rational trier of fact to find the defendant guilty
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781,
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2789, 61 L. Ed. 2d 560 (1979); Tenn. R. App. P. 13(e); State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982).
B. Chain of Custody
As to the chain of custody, the state is not required to establish facts which
exclude every possibility of tampering; however, the circumstances established
must reasonably assure the identity of the evidence and its integrity. State v.
Baldwin, 867 S.W.2d 358, 361 (Tenn. Crim. App. 1993). This issue addresses itself
to the sound discretion of the trial court, and the court’s determination will not be
disturbed in the absence of a clearly mistaken exercise of such discretion. Id.
ANALYSIS
We find the State presented sufficient evidence to support a conviction for
possession of .5 or more grams of cocaine with intent to deliver. Given the amount
of cocaine that was recovered and the relevant facts surrounding the defendant’s
arrest, it can be inferred that defendant possessed the cocaine with the intent to
deliver. See Tenn. Code Ann. §39-17-419.
With regard to the amount, Sergeant Woody testified that the amount of
cocaine in the package defendant discarded was much more than would be
possessed for personal use. The package recovered by police contained over 4.5
grams, which is eight or nine hundred dollars worth of crack cocaine. This amount,
combined with the circumstances surrounding defendant’s arrest, provides sufficient
evidence for the jury to infer defendant possessed over .5 grams of cocaine with the
intent to deliver.
The defendant also contends the evidence was insufficient because the state
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failed to adequately establish that the substance introduced at trial was the same
substance thrown by the defendant as he fled from police. We disagree.
Officer Lawrence, the officer who retrieved the package from the ground,
testified that he took it to the station, tested it again, weighed it, tagged the
evidence, heat-sealed it in an envelope and left it in the property room. A property
number was assigned to the evidence and placed on the arrest warrant. Lawrence
testified that the envelope marked “Exhibit 1" was the same one he recovered at the
time of defendant’s arrest.
Sergeant Woody testified that he retrieved the envelope from the property
room and took a sample to the toxicology lab. The sample was labeled with the
same property number as the original package. He identified exhibit one as the
package from which the sample was taken and exhibit two as the sample which was
tested. The original package was returned to the property room.
The toxicologist placed the sample in the evidence room until she tested it.
She identified exhibit two as the sample she tested. The sample was returned to
the property room where it remained until trial.
The state presented sufficient evidence for the trial court to determine a
proper chain of custody had been established. We find no reason to disturb that
ruling.
CONCLUSION
Based on the foregoing, we AFFIRM the judgment of the trial court.
____________________________
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JOE G. RILEY, JUDGE
CONCUR:
____________________________
DAVID G. HAYES, JUDGE
____________________________
THOMAS T. WOODALL, JUDGE
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