State of Tennessee v. Jerry Louis Fitzgerald, Jr.

07/01/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 8, 2022
STATE OF TENNESSEE v. JERRY LOUIS FITZGERALD, Jr.
Appeal from the Circuit Court for Gibson County
No. H9775 Clayburn Peeples, Judge
___________________________________
No. W2021-00195-CCA-R3-CD
___________________________________
The Defendant, Jerry Louis Fitzgerald, Jr., was convicted at trial of sexual battery and
possession of 0.5 grams or more of cocaine with the intent to sell or deliver, and he
received an effective sentence of fourteen years in confinement. On appeal, the
Defendant argues that the evidence was insufficient to convict him of sexual battery and
that although he possessed the cocaine, the evidence was insufficient to support a finding
that he intended to sell or deliver it. After review, we affirm the trial court’s judgments.
Tenn. R. App P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.
Harold E. Dorsey, Trenton, Tennessee, for the appellant, Jerry Louis Fitzgerald, Jr.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Frederick Hardy Agee, District Attorney General; and Jason Scott and
Jennifer McEwen, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The Defendant was arrested in a Hardee’s drive-thru after the victim reported to
law enforcement that he raped her at knifepoint on June 27, 2015. Law enforcement
searched the Defendant’s vehicle pursuant to a search warrant and discovered 0.81 grams
of crack cocaine. The Defendant was indicted for one count each of aggravated rape,
aggravated kidnapping, and possession of 0.5 grams or more of cocaine with intent to sell
or deliver.
The State’s Proof
At trial, the victim testified that she visited Ms. Bernita Green’s home along with
her husband and children on June 26, 2015. There, she met the Defendant, whom she
only knew as “Buck,” for the first time. The victim and her family eventually went
home, but Ms. Green called the victim the same day and invited her “to go back out.”
The victim accepted the invitation and told Ms. Green that she would walk to her house
because they lived close by. However, Ms. Green suggested, “Just have Buck come get
you.” The victim called the Defendant, and the Defendant picked her up around midnight
in his vehicle. She entered the Defendant’s vehicle, and the Defendant drove the victim
to an unknown trailer in Humboldt, Tennessee, to “pick up some liquor.” They arrived at
the trailer and walked to a back bedroom. The Defendant allowed the victim to enter the
room first and told the victim to pick up some alcohol that was in the bedroom.
However, when she turned around, the Defendant wielded a blue-handled knife and
would not let her exit the room. The victim stated that the Defendant held the knife to
her throat and started pulling down her shorts. She explained that in response she told
him no and that she wanted to leave. The Defendant slapped her, grabbed her, “knocked
[her] everywhere,” and ripped her shirt. The Defendant pushed her onto the bed and tried
to pour liquor down her throat, knocking her tooth out with the bottle in the process. He
also tried to make the victim snort white powder and eventually poured it down her
throat. Meanwhile, the victim repeatedly told the Defendant she did not want to be there.
She stated that the Defendant raped her vaginally for an hour and a half or two hours.
She stated that she sustained bruises on her wrist and thighs during the attack. At trial,
the victim identified the shorts and shirt she wore on the day she was raped. The collar
on the shirt was torn from the Defendant’s yanking and twisting it, and her shorts were
torn as well.
The Defendant and the victim left the trailer and entered the Defendant’s vehicle.
At some point when the victim exited the trailer, she called 911 on her cell phone and
placed the phone in her bra facing outward for the dispatcher to listen to what was
occurring. The Defendant started driving but did not take the victim home. Instead, the
Defendant stated that he was hungry, drove to Hardee’s, and started ordering food. The
victim observed law enforcement across the street, and after the Defendant also observed
law enforcement, he told the victim to conceal drugs wrapped in a brown piece of paper
in her vagina. The victim responded, “I’m not going to do it.” She said that law
enforcement officers approached the vehicle and that she exited the vehicle and ran to
them. She reported to law enforcement that the Defendant raped her and was transported
by ambulance to the hospital.
-2-
An audio recording of the victim’s 911 call was played for the jury at trial. The
victim identified her voice in the recording and identified the male voice as the
Defendant. Although the audio recording is not part of the appellate record, a transcript
of the recording was entered as an exhibit at trial. According to the transcript, parts of
the call were unintelligible. However, intelligible parts of the transcript reflect that the
victim complained to the Defendant that he had “just beat [her], and beat her,” narrated
that they were “in Hardee’s now” as she tried to order something, and questioned, “Are
you putting that in my [vagina]? No!” The Defendant stated, “Spread the [vagina].” The
victim then requested help from someone and reported that the Defendant took her “to
some . . . drug house” and raped her. The call ended shortly after.
A nurse examined the victim at the hospital and collected the victim’s clothes and
a vaginal swab as evidence. The victim stated that her vagina was bruised and was
hurting badly. She denied that the nurse asked her to take a drug test but stated that the
nurse requested a blood sample. Being afraid of needles, the victim declined to provide a
blood sample, but she provided a urine sample. She denied that she left the hospital
before being released. She said that Sergeant Kevin Hill visited her in the hospital and
that she tried to explain what occurred but “all of it wouldn’t come out at that moment.”
She stated that she had knots on the top of her head and that her face was red from the
Defendant’s striking her. She agreed that she provided a video-recorded statement to
Sergeant Hill two days after the rape occurred but that the injuries were not visible in that
video. She stated that she was not using drugs at the time of the rape and did not know
what drugs would have been detected in her system at that time.
The victim stated that she had been living in Humboldt for approximately two
years and that the rape occurred in Humboldt. However, she did not know where the
trailer was located other than that it was located “over the tracks.” She did not drive
around or ride with police to look for the trailer in which the rape occurred. She
disagreed that she was in a sexual relationship with the Defendant and stated that the only
sexual encounter they had was against her will. She agreed that the Defendant told her
that she owed him money and that he screamed at her demanding money, but she did not
owe the Defendant money. She denied that she had previously exchanged sex for drugs.
Humboldt Police Department (HPD) Officer Derek Austin Way testified that at
approximately 3:57 a.m. on June 27, 2015, he received a call regarding a possible
domestic assault in progress. The dispatcher did not provide him with an active location
of the caller, but he had a location of “somewhere on North Fourth Avenue.” In response
to the call, Officer Way, Officer Daniel Jones, Officer Tony Barr, and Sergeant Roy
Hudson responded to the North Fourth Avenue area and began searching for anything
that related to the reported disturbance. Initially, Officer Way did not have a description
of the persons or vehicle involved. However, at some point he was notified to look for a
-3-
vehicle at the Plaza Shopping Mall near Hardee’s. After observing vehicles at Hardee’s
and communicating with the dispatcher, Officer Way and the other officers decided to
approach a black sedan because it was the only vehicle that had two passengers in it.
Officer Way blocked the vehicle’s exit by parking his patrol car in front of the vehicle.
As soon as Officer Way stopped his vehicle, the victim exited the black sedan and ran to
Officer Way’s location screaming, “Help me, help me.” Officer Way stated that the
victim appeared to be under extreme duress, was breathing frantically, shaking, rushed,
and “[h]er eyes were dilated as if something had occurred.” She told Officer Way, “Get
me out of here. Get me out of here,” and Officer Way escorted her to enter the back of
his patrol car while Officers Jones and Barr made contact with the Defendant. The victim
told Officer Way, “He raped me. He raped me. And he has a knife.” Officer Way
advised the other officers that there was a weapon present and to detain the Defendant.
Officer Barr moved Defendant’s vehicle from the drive-thru line to the front of
Hardee’s to allow other vehicles parked behind it to exit. Before the vehicle was towed,
Officer Way conducted an inventory search of the vehicle to document the vehicle’s
model, the location of the vehicle, and any valuable items contained inside visible in
plain view. In the vehicle, Officer Way documented finding a cell phone, a baseball cap,
various CDs, and a small backpack in plain view. Afterward, Sergeant Hill managed the
investigation. On cross-examination, Officer Way stated that Officers Jones and Barr
informed him no knife was found on the Defendant’s person. Officer Way did not
observe a knife in plain view during his inventory of the vehicle’s contents. He denied
that the victim appeared to be “high” based on her dilated eyes. Officer Way agreed he
did not have any knowledge of what had occurred before he encountered the victim. He
agreed that no drugs were found during his inventory search of the Defendant’s vehicle
but stated that in order to allow Sergeant Hill to search the vehicle for evidence, he only
looked for items in plain view without moving anything.
Officer Daniel Jones worked for the HPD on June 27, 2015, and encountered the
Defendant as the driver of the black sedan from which the victim fled. He stated that he
transported the Defendant to the police department but that he did not know what
happened to the vehicle when he left. On cross-examination, Officer Jones did not recall
if he found a knife on the Defendant’s person. He did not find drugs on the Defendant’s
person, and he did not observe any physical injuries on the victim.
Ms. Tamara Bush, a Sexual Assault Nurse Examiner (“SANE”), treated the victim
on June 27, 2015, at around 5:12 a.m. The victim reported to Ms. Bush that the
Defendant took her to an unknown trailer, pulled a knife on her, tried to make her use
drugs, and raped her. The victim reported having consensual sex with her husband but
did not know when that occurred. Ms. Bush examined the victim’s body to look for
injuries. She noted that the victim had two bruises that were nickel-sized on her leg and
-4-
one bruise on her wrist that was about six centimeters in length. She also stated that
when she conducted the vaginal examination, she noticed that the victim was “extremely
tender” and appeared to be in pain during the examination. She stated that “[m]ost of the
time you don’t see injuries” but that “obviously you can tell when . . . somebody is
hurting.” She stated that she found a foreign pubic hair on the outside of the victim’s
vagina and collected it as evidence. Ms. Bush collected a saliva standard to obtain the
victim’s DNA, vaginal swabs, cervical swabs, a post void 4x4 used to wipe the victim
after she urinated, the victim’s shorts and shirt, and pubic hair combings as evidence.
Afterward, law enforcement retrieved the evidence from the hospital.
Ms. Bush agreed she did not observe physical injuries to the victim’s vagina, but
she concluded there was an injury based on the victim’s reactions to her examination.
She said that based on her years of experience as a nurse, victims grimace when
experiencing pain. She agreed that the victim could have acted like she was injured but
stated that she did not think the victim was acting. She stated that “you normally don’t”
observe physical injuries to a victim’s vagina and that “probably 90 percent of victims
don’t have visual vaginal injuries . . . because . . . the vagina is elastic.” She agreed that
“dryness” could be a cause of injury but stated that the body of a non-menopausal woman
would self-lubricate regardless of whether the sex was consensual or not. She stated that
the self-lubrication “makes it very difficult for victims because of that reason.” She
testified that the victim’s injuries were consistent with those caused by rape. She stated
that she provided the photographs of the victim’s injuries to the police.
Ms. Bush denied trying to take a blood sample from the victim and stated that she
does not draw blood. She noted in her records that “we weren’t going to do a drug
facilitated blood test.” She agreed that she was able to conduct a complete examination
and that the victim did not leave in the middle of the examination. On cross-examination,
Ms. Bush stated that the victim refused to provide a blood sample or urine sample.
HPD Sergeant Kevin Hill testified that he visited the victim at the hospital, where
he observed that she was covered with a blanket, appeared to be withdrawn, and was
crying. The victim reported to Sergeant Hill that she and the Defendant visited a trailer
and that, while inside, the Defendant held a knife to her throat and raped her. However,
the victim did not know the location of the trailer. The victim stated that the knife had a
hook on it and that once she and the Defendant left the trailer, she called 911. Sergeant
Hill did not observe the victim’s injuries at the time he interviewed her. The victim
visited him for another interview the next week.
Sergeant Hill testified that he located the trailer in which the rape occurred on the
west side of Humboldt, at an address on North Third Avenue. He did not search the
trailer for evidence because he believed any evidence on scene would not be there
-5-
anymore. On cross-examination, Sergeant Hill agreed the victim could not identify the
location of the rape except that she reported the trailer was “across the tracks,” which
“usually means it’s on the west side” of town. He agreed he did not drive the victim
around to look for the location. He agreed that law enforcement never recovered the
knife.
The Defendant’s vehicle was towed to an impound lot in Humboldt following the
Defendant’s arrest. During Sergeant Hill’s investigation, the victim informed him that
the Defendant tried to place drugs in her vagina and that the drugs were located
somewhere in the vehicle if they were not found on the Defendant’s person. Sergeant
Hill obtained a search warrant for the vehicle, and he and Lieutenant Kenny Rich
searched the vehicle on the Monday following the Defendant’s arrest. Sergeant Hill
found a piece of brown paper containing three rocks of crack cocaine weighing
approximately 0.81 grams in total and a lighter under the driver’s side floormat. Sergeant
Hill photographed the interior and exterior of the vehicle. On cross-examination, he
agreed that the amount of drugs was small and that there were no scales found in the
vehicle. He also agreed that law enforcement did not find a large amount of cash on the
Defendant’s person at the time of the arrest, that no weapon was found on the
Defendant’s person or in the vehicle, and that no baggies were recovered. Sergeant Hill
disagreed that the Defendant was a user rather than a dealer, but he agreed that none of
the factors suggesting the Defendant was a dealer rather than a user were present.
Special Agent Donna Nelson of the Tennessee Bureau of Investigation (“TBI”)
tested the evidence collected from the victim at the hospital. She generated a DNA
profile for the victim using the victim’s saliva swab to compare it back to DNA found on
other evidence samples. The victim’s vaginal swab contained the presence of sperm.
DNA testing of the swab indicated a mixture of DNA from two individuals, but the
information was too limited to determine whose DNA was found on the swab. The
victim’s cervical swab contained the presence of semen but not sperm. DNA testing of
the cervical swab indicated the presence of DNA, but the profile was too limited to
determine whose DNA was found on the swab. The post void 4x4 swab contained the
presence of sperm, and DNA testing of the swab indicated the presence of a mixture of
DNA from three individuals. The Defendant’s DNA matched the major contributor of
DNA found on the swab. She could not determine who contributed to the minor profiles.
Sperm was recovered from the victim’s shorts, and the DNA testing showed a mixture of
at least three individuals, with one male. The major contributor of DNA found on the
shorts matched the major contributor of DNA found on the post void 4x4 swab. The
Defendant’s DNA matched the major contributor of the DNA profile found on the shorts.
Special Agent Nelson stated that no semen was found on the victim’s shirt and that no
testing was conducted on the pubic hair. She stated that testing can detect the presence of
sperm for three to five days after sexual contact, even if a victim had bathed between the
-6-
contact and the testing. She agreed that not all DNA is detectable for three to five days
but stated that it commonly is detectable for three to five days.
Lieutenant Kenny Rich with the HPD Drug Task Force testified that he and
Sergeant Hill seized crack cocaine from the Defendant’s vehicle. Lieutenant Rich stated
that the drugs were in the form of multiple rocks weighing 0.81 grams but that in his
experience “the average user is going to buy half a gram.” On cross-examination,
Lieutenant Rich agreed that users of crack cocaine sometimes purchase more than one
piece at a time but that “[i]t depends on the weight.”
Ms. Lela Jackson, a forensic chemist with the TBI, testified that the crack cocaine
submitted to her weighed 0.81 grams. She agreed that she did not weigh the paper towel
in determining the weight of the drugs.
The Defense’s Proof
Ms. Bernita Green testified that she knew the victim in June 2015 through Ms.
Green’s sister, Ms. Angela Champion, and eventually became friends with the victim.
Ms. Green testified that the victim regularly used drugs, that the victim asked Ms. Green
if she knew where to get drugs, and that the victim exchanged drugs for sex by asking if
Ms. Green “had any friends that wanted to hook up with her.” At some point, the victim
and Ms. Green’s neighbor posted advertisements on Craigslist relating to sex. She did
not know when the victim made the posts but agreed it occurred “about that time frame
when all this happened.” She agreed she was friends with the Defendant and grew up
with him but disagreed that she introduced the victim to him. She agreed that there were
only about ten or twelve families on the west side of the railroad tracks in Humboldt.
Ms. Green agreed that she had been previously convicted of introducing contraband into
a county jail.
Mr. Darrell Walker testified that on the night the Defendant was arrested, Mr.
Walker played cards and drank at his friend’s trailer in Humboldt. When Mr. Walker
arrived at the trailer, his friend told him that he had company. Approximately ten or
fifteen minutes later, the Defendant and a woman emerged from the bedroom. The
woman did not appear to be upset or in distress and asked Mr. Walker for a drink. The
Defendant stated that he was going to get something to eat and that, “If you want a ride,
I’ll give you a ride.” The Defendant and the woman left the trailer, and Mr. Walker
learned that the Defendant was arrested at Hardee’s minutes later. Mr. Walker stated that
nobody was using drugs at the trailer that night and that he did not know if drugs were
sold out of the trailer. He agreed that he had been convicted of felonies including
aggravated assault, selling drugs, four counts of reckless endangerment with a deadly
weapon, forgery, and writing bad checks.
-7-
Ms. Angela Champion testified that the victim had known the Defendant for a
“couple” of months prior to the Defendant’s arrest. She stated that she knew the victim
was in a sexual relationship with the Defendant based on things the victim said. She
explained that the victim “would come and talk to us and we knew because then she was
hanging at my house.” However, she agreed the victim did not tell her that she was in a
sexual relationship with the Defendant. She believed that the victim used drugs at that
time and agreed that it was not unusual for the victim “to go on binges of using drugs.”
On cross-examination, she agreed she was not at home when the Defendant picked up the
victim and agreed she was not with the victim during the time that the victim alleged the
rape occurred.
The jury found the Defendant guilty of sexual battery as a lesser included offense
of aggravated rape and possession of 0.5 grams or more of cocaine with intent to sell or
deliver but acquitted him of aggravated kidnapping. He received consecutive sentences
of two years for sexual battery and twelve years for possession of 0.5 grams or more of
cocaine with intent to sell or deliver for a total effective sentence of fourteen years. The
Defendant appeals.
ANALYSIS
The Defendant contends that the evidence was insufficient to support his
convictions. We briefly note that Tennessee Rule of Appellate Procedure 27 lists the
required contents of an appellant’s brief. Absent from the Defendant’s brief are the
required table of authorities and an argument “with citations to authorities and
appropriate references to the record relied on” as well as “a concise statement of the
applicable standard of review.” Tenn. R. App. P. 27(a)(2), (7). His argument section
consists of only one page of argument and does not cite to a single authority to support
his claims. These deficiencies ordinarily would render the Defendant’s claims waived in
their entirety. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”). However, we elect to address the sufficiency issues raised by the
Defendant despite the brief’s deficiencies.
Reviewing the sufficiency of the evidence supporting a criminal conviction
requires this court to first “examine the relevant statute(s) in order to determine the
elements that the State must prove to establish the offense.” State v. Stephens, 521
S.W.3d 718, 723 (Tenn. 2017). Next, we determine “‘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.’” Id. at 724(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). If the evidence is insufficient to
support the finding of guilt beyond a reasonable doubt, the finding of guilt “shall be set
-8-
aside.” Tenn. R. App. P. 13(e). Once a defendant has been convicted, the presumption
of innocence is replaced with a presumption of guilt on appeal. Turner v. State, 394
S.W.2d 635, 637 (Tenn. 1965). To overcome a presumption of guilt on appeal, the
defendant bears the burden of showing the evidence presented at trial was “insufficient
for a rational trier of fact to find guilt of the defendant beyond a reasonable doubt.” State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982) (citing State v. Patton, 593 S.W.2d 913(Tenn. 1979)).
On appeal, the State “is entitled to the strongest legitimate view of the trial
evidence and all reasonable and legitimate inferences which may be drawn from the
evidence.” State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003) (citing State v. Carruthers,
35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Hall, 8 S.W.3d 593, 599 (Tenn. 1999);
State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997)). This court may not reweigh or
reevaluate the evidence, because “[q]uestions about the credibility of witnesses, the
weight and value of the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact.” Id. at 236 (citing Bland, 958 S.W.2d at 659). After a guilty
verdict has been entered, the testimony of the State’s witnesses is accredited, and all
conflicts in the testimony are resolved in favor of the theory of the State. State v.
Nichols, 24 S.W.3d 297, 301 (Tenn. 2000) (citing State v. Grace, 493 S.W.2d 474, 476
(Tenn. 1973)).
A defendant’s guilt may be supported by direct evidence, circumstantial evidence,
or a combination of both. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343
S.W.2d 895, 897 (Tenn. 1961)). Whether the evidence underlying the defendant’s
conviction at trial was direct or circumstantial, the same standard of review applies. State
v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265,
275 (Tenn. 2009)).
The Defendant argues the evidence was insufficient to support his conviction for
sexual battery. “Sexual battery is unlawful sexual contact with a victim by the defendant
or the defendant by a victim accompanied by any of the following circumstances:
(1) Force or coercion is used to accomplish the act;
(2) The sexual contact is accomplished without the consent of the victim
and the defendant knows or has reason to know at the time of the contact
that the victim did not consent;
(3) The defendant knows or has reason to know that the victim is mentally
defective, mentally incapacitated or physically helpless; or
-9-
(4) The sexual contact is accomplished by fraud.
T.C.A. § 39-13-505(a) (2014), amended by 2021 Tennessee Laws Pub. Ch. 406 (eff. date
July 1, 2021). “‘[C]oercion’ means the threat of kidnapping, extortion, force or violence
to be performed immediately or in the future.” Id. § 39-13-505(b) (2014).
Viewed in the light most favorable to the State, the Defendant picked up the
victim at around 12:00 a.m. on June 27, 2020, and instead of driving to Ms. Green’s
home, he drove to a trailer located in Humboldt. According to the victim, she and the
Defendant entered the trailer and went to the back bedroom, where the Defendant
wielded a knife and prevented her from leaving. The victim testified that, over the course
of an hour and a half or two hours, the Defendant beat the victim, tore her clothes, tried to
force her to consume alcohol and a white, powdery substance, and raped her vaginally.
The victim told him no and that she wanted to leave, but the Defendant continued his
attack. Eventually, the Defendant and victim left the trailer, and the victim called 911 on
her cell phone. After law enforcement approached the Defendant’s vehicle at Hardee’s,
the victim fled the vehicle and reported to law enforcement that the Defendant raped her.
The victim also reported to Ms. Bush that the Defendant raped her. During the victim’s
examination, Ms. Bush observed two nickel-sized bruises on the victim’s leg and one
bruise on her wrist that was about six centimeters in length. Ms. Bush testified that the
victim “reacted in a painful way” and that the victim “was tender” during the vaginal
examination, which she concluded was consistent with injuries associated with rape. The
Defendant’s DNA matched the major contributor for DNA found on the victim’s post
void 4x4 swab and her shorts. Although the Defendant attacked the credibility of the
victim and other witnesses for the State at trial, the jury resolved questions of witness
credibility in favor of the State’s theory. See Evans, 108 S.W.3d at 237. The evidence
was sufficient to show that the Defendant used force or coercion to accomplish sexual
contact with the victim or that he had sexual contact with her without her consent.
Next, the Defendant argues that even though he possessed the crack cocaine found
in his vehicle, the evidence was insufficient to show that he intended to sell or deliver it.
“It is an offense for a defendant to knowingly . . . [p]ossess a controlled substance with
intent to. . . deliver or sell the controlled substance.” T.C.A. § 39-17-417(a)(4) (2014).
Cocaine is a Schedule II controlled substance. T.C.A. § 39-17-408(b)(4). “‘Intentional’
refers to a person who acts intentionally with respect to the nature of the conduct or to a
result of the conduct when it is the person’s conscious objective or desire to engage in the
conduct or cause the result.” T.C.A. § 39-11-302(a). “‘Deliver’ or ‘delivery’ means the
actual, constructive, or attempted transfer from one person to another of a controlled
substance . . . .” T.C.A. § 39-17-402(6). “It may be inferred from the amount of a
controlled substance or substances possessed by an offender, along with other relevant
- 10 -
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; but see State
v. Belew, 348 S.W.3d 186, 192 (Tenn. Crim. App. 2005) (concluding that possession of
2.2 grams of crack cocaine, without any other circumstances, was insufficient to support
an inference of an intent to sell or deliver). Such “other relevant circumstances” that may
support an inference of an intent to sell or deliver include the absence of drug
paraphernalia, the weight, street value, and packaging of the drugs, and the presence of
weapons. See State v. Steven Kelly, No. M2018-00659-CCA-R3-CD, 2019 WL 920361,
at *4 (Tenn. Crim. App. Feb. 25, 2019) (distinguishing Belew and concluding that
possession of 3.3 grams of crack cocaine in addition to the defendant’s unemployment,
testimony regarding the shape and value of the drugs, and the absence of drug
paraphernalia supported an inference of intent to sell or deliver), perm. app. denied
(Tenn. Apr. 11, 2019); State v. Nelson, 275 S.W.3d 851, 867 (Tenn. Crim. App. 2008)
(concluding that the jury could reasonably infer that the defendant intended to sell the
cocaine where an officer testified the amount of cocaine was not consistent with personal
use, the defendant was spotted in a location known for illegal drug sales, no paraphernalia
was found, and the defendant possessed $114 in cash and a check for an unspecified
amount); State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995) (concluding that the
absence of drug paraphernalia and the manner of packaging of drugs supported an
inference of intent to sell).
Viewed in the light most favorable to the State, the Defendant held the victim at
knifepoint and tried to make her consume a white powder. The victim testified that he
tried to make her snort the powder and then poured it down her throat after she refused to
snort it. After leaving the trailer, the Defendant demanded money from the victim. He
drove the victim to Hardee’s, and in response to observing law enforcement nearby, he
told the victim to conceal drugs contained in a brown piece of paper in her vagina. The
Defendant was arrested and his vehicle was towed to an impound lot. Sergeant Hill and
Lieutenant Rich found three rocks of crack cocaine weighing a total of 0.81 grams
wrapped in a brown piece of paper and a lighter under the driver’s side floormat in the
Defendant’s vehicle. Lieutenant Rich testified that “the average user is going to buy half
a gram” but that the Defendant possessed 0.81 grams in the form of multiple rocks. No
other items were seized from the Defendant’s vehicle at the impound lot. Accordingly,
the amount of drugs in addition to the Defendant’s use of additional drugs and a knife to
accomplish the sexual battery, his demanding money from the victim, his attempt to
conceal the drugs in the victim’s vagina, and the absence of drug paraphernalia provided
the jury with a reasonable basis to infer that he possessed the crack cocaine with the
intent to sell or deliver it. See Steven Kelly, 2019 WL 920361, at *4. Therefore, the
evidence was sufficient to support the Defendant’s conviction for possession of 0.5 grams
or more of cocaine with intent to sell or deliver.
- 11 -
CONCLUSION
Based upon the foregoing reasons, we affirm the judgments of the trial court.
___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE
- 12 -