State v. Victoria Teran & Joseph Sullivan

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
DECEMB ER SESSION, 1998 March 15, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9803-CC-00071
)
Appellee, )
) TIPTON COUNTY
V. )
)
JOSE PH LE ROY S ULLIVAN ) HON. JOSEPH H. WALKER, JUDGE
and VICTORIA ALICIA TERAN, )
)
Appellants. ) (POSSE SSION OF CO CAINE)
FOR THE APPELLANTS: FOR THE APPELLEE:
MELANIE E. TAYLOR JOHN KNOX WALKUP
50 North Front State., Ste. 780 Attorney General & Reporter
Memphis, TN 38103
ELIZABE TH T. RY AN
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenu e North
Nashville, TN 37243
ELIZABETH T. RICE
District Attorn ey Ge neral
JAME S WAL TER FREE LAND , JR.
Assistant District Attorney General
302 M arket Stre et
Somerville, TN 38068
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Defendants, Joseph Leroy Sullivan and Victoria Alicia Teran, appeal as
of right their convictions following a jury trial in the Tipton County Circuit Court.
Sullivan was fo und g uilty of possession with intent to deliver .5 grams or more of
cocaine, possession of drug paraphernalia, and possession of a prohibited weapon.
Teran was convicted of possession with intent to deliver .5 grams or more of cocaine
and possession of drug paraphernalia. The jury fined each Defendant $25,000.00
for the possession with intent to deliver more than .5 grams of cocaine and
$2,500.00 for possession of drug paraphernalia. Sullivan was fined an additional
$3,000.00 for the conviction of po ssession of a prohibited wea pon. The trial court
subs eque ntly senten ced Su llivan as Ra nge I Sta ndard O ffender to eight (8) years
and six (6) months for the possession with intent to deliver, eleven (11) months,
twenty-nine (29) days for the possession of drug paraphernalia, and one (1) year for
the possession of the prohibited weapon. Teran was sentenced as a Range I
Standard Offender to eight (8) years for the possession with intent to deliver and
eleven (11) months, twenty-nine (29) days for the possession of drug paraphernalia.
Teran was gra nted su spens ion of her s entenc e after serving six (6) months. For
each Defendant, all sentences were ordered to run concurrently. In this appe al,
Defen dants argue that the evidence was insufficient to support any of the
convictions. After a careful review of the record, we affirm the judgment of the trial
court.
The facts p resen ted at tria l revea l that on March 7, 1997, officers from the
Tipton County Sheriff’s department, along with Detective Tarwater of the Shelby
-2-
Coun ty Sher iff’s Department, obtained a search warrant for the residence of Joseph
Leroy Sullivan. Upon entering Sullivan’s mobile home, the officers encountered
Teran comin g from th e back bedroo m. After she had been secured, Sergeant Dan
Jones continued the search of the house for both drugs and Sullivan. Sergeant
Jones went into the master bedroom where he noticed several guns within arms
reach of the bed, including a sawed-off shotgun. The barrel length was later
determined to be eight and one quarter inches. Sergeant Jones also noticed a
Crown Royal bag on the floor with a white powdery substance inside. This white
substance in the bag was later id entified as being .7 gram s of co caine . The fo rensic
scientist who tested the white substance testified that she also found a white plastic
straw in the Crow n Roya l bag con taining the cocaine . Sergeant Jones further found
a “used sy ringe” in the bathroo m. No forensic te sts were conducted on the straw or
syringe. Sergeant Jones also located a writing tablet in the living room which he and
the other officers believed contained records of drug transactions and money owed
to Sullivan and/or Teran. As the officer took the tablet and began to read its
contents, Teran tried to grab it, telling the officer not to take it because it contained
her personal notes.
Sullivan was spotted in a soybean field across from the house about an hour
after the sear ch beg an, and he was then bro ught back to his home. After being
Mirandized, Sullivan aske d narc otics inv estiga tor Ra ndall Robbins what the officers
were doing at h is hom e. The o fficer explain ed that they were executing a search
warran t, he told Sullivan wh at they had foun d, and inform ed him that he would be
arrested. Sullivan be gan to q uestion th e officer ab out wha t would ha ppen to Teran.
W hen th e office r told Su llivan tha t Tera n wou ld likely b e arres ted too , Sulliva n told
the officer that all of the con traband was his a nd that T eran ha d nothing to do with
-3-
it. According to Investigator Robbins, neither Defendant indicated that he or she had
any me dical prob lems.
Sufficiency of the Evidence
When an accused challenges the sufficiency of the convicting evidence, the
standard is whether, after reviewing the evidence in the light most favora ble to the
prosection, any rational trier of fact could have found the esse ntial elem ents of the
crime beyond a reaso nable d oubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979).
This standard is applicable to findings of guilt predicated upon direct evidence,
circumstantial evidence or a combination of direct and circumstantial evidence.
State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). On appeal, the
State is entitle d to the strong est leg itimate view of th e evide nce a nd all in ferences
therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Because a
verdict of guilt removes the presumption of innocence and replaces it with a
presumption of guilt, th e acc used has th e burd en in th is court of illustrating why the
evidence is insufficien t to suppo rt the verdict re turned b y the trier of fac t. State v.
Williams, 914 S.W.2d 940, 945 (Tenn. Crim. App. 1995) (citing State v. Tug gle, 639
S.W.2d 913, 914 (Tenn . 1982)); State v. Grace, 493 S.W.2d 474, 476 (T enn. 1973 ).
Questions concerning the credibility of the witnesses, the weight and valu e to
be given the evidence, as well as all factual issues raised by the evide nce, are
resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623
(Tenn. Crim. A pp.), perm. to appeal denied, id. (Tenn. 1987). N or may this cou rt
reweig h or reevalu ate the ev idence . Cabbage, 571 S.W .2d at 835. A jury verdic t
-4-
approved by the trial judg e accre dits the Sta te’s witnesse s and re solves all co nflicts
in favor of the State. Grace, 493 S.W.2d at 476.
First, Sullivan argues that the evidence is insufficient to support a finding that
he is guilty of pos session of a proh ibited wea pon. See Tenn . Code Ann. § 39-17-
1302. Sergeant Jones found a sawed-off shotgun within arm s reac h of Su llivan’s
bed in Sullivan’s home. The barrel on that gun was measured at eight and a quarter
inches long. The prohibited weapons statute states that a barrel of a shotgun must
be at least 18 inches long. Tenn. Code Ann. § 39-17-1301(11). A gun Defendant
possessed in his own home which was almost ten inches shorter than the shortest
length allowe d is suff icient e vidence to uphold Sullivan’s conviction of possession
of a proh ibited wea pon.
Second, Sullivan and Teran conte nd that the evidenc e is not su fficient to
support their convic tions for po ssessio n of coca ine with intent to deliver. Tennessee
Code Annotated section 39-17-417(a)(4) provides that it is an offe nse to “possess
a controlled substa nce with intent to manufacture, deliver or sell such controlled
substa nce.” The statute also provides that where the substance is cocaine in an
amount equal to or greater than .5 grams, the offense is a Class B felony. Tenn.
Code Ann. § 39-17-417(c)(1). Defendants were charged with and convicted of the
possession of more than .5 grams of cocaine with intent to deliver. Tests revealed
that the actual amount of cocaine found in the Crown Royal bag was .7 grams.
Tennessee law allows a jury to infer from the amount of a controlled
substance or substances possessed by an offender, along with other re levant facts
surrounding the arrest, that the controlled substance or substances were possessed
for the purpose of selling or otherwise dispensing the drug. Tenn . Code Ann. §
-5-
39-17-419. In State v. Larry G. H art, C.C.A. No. 02C01-94 06-C C-00 111, H ardin
Coun ty (Tenn. Crim . App., Jackso n, June 28, 19 95) (no Ru le 11 application filed),
the defendant had only one gram of cocaine in his possession, but when that fact
was viewed in light of all the circ umsta nces, this Court fou nd that amount to be
sufficient to sus tain a g uilty verd ict of po sses sion w ith inten t to delive r or sell.
Furthermore, this Court has held that the possess ion of a beep er and $239 .00 in
cash, thoug h not c riminal offenses in and of themselves, when coupled with the
possession of 1.1 gram o f cocaine, was sufficient evidence for the jury to conclude
that a defendant was guilty of possession of cocaine with the intent to deliver. See
State v. Ronald Mitch ell, C.C.A. N o. 02C 01-970 2-CC -00070 , Laude rdale Co unty
(Tenn. Crim. App., Jackson, Sept. 15, 1997) (Rule 11 application denied April 27,
1998). In the instant case, the proof in the record establishes that Defendants had
.7 grams of cocaine in their possession. A “used syringe” was found in the bathroom
and a plas tic straw was fo und in the Crown Royal bag conta ining th e coc aine. W hile
this evidence might infer that the drug was possessed by Defendants for their own
use and not with intent to deliver, the writing tablet that Teran admitted belonged to
her was also admitted into evidence. Investigator Robbins testified that he believed
the tablet contained descriptions of drugs sold, to whom they were sold, and how
much was paid or owed. A rational trier of fact could have concluded that
Defen dants p ossess ed the co caine w ith the inten t to deliver.
Although not specifically raised as an issue a t trial or on appe al, we s hould
note that we also find sufficient evidence that both Defendants were in possession
of the cocaine . Possession of a controlled substance may be actual or constructive.
State v. Brown, 915 S.W.2d 3, 7 (Te nn. Crim . App. 19 95); State v. Brown, 823
S.W.2d 576, 579 (Te nn. Crim . App. 19 91); State v. Cooper, 736 S.W.2d 125, 129
-6-
(Tenn. Crim. A pp. 198 7). To constructively possess a drug, that person must have
the power and intention at a given time to exercise dominion and control over the
drugs either d irectly or throug h others . Cooper, 736 S.W .2d at 129 (citation om itted).
Constructive possession is the ability to reduce an object to actual possession.
Brown, 915 S.W .2d at 7; Brown, 823 S.W .2d at 579 (citation om itted). Moreover,
possession may be actual or con structive , either a lone o r jointly with others . State
v. Copeland, 677 S.W.2d 471, 47 6 (Ten n. Crim. A pp.), perm. to appeal denied
(Tenn. 1984). Having possession of the premises where contraband is found
creates an inference that the possessor had possession of the contraband.
Armstrong v. State, 548 S.W.2d 334, 336 (Tenn. Crim. App. 1976). A pe rson’s mere
presence in the area where drugs are discovered does not show possession, and
neither will associa tion with the one who is in control of drugs . Cooper, 736 S.W.2d
at 129. However, the facts of this case reveal more than m ere pres ence b y both
Defendants. First, Sullivan was the owner of the trailer from which the contraband
was confiscated which creates an inference he possessed the contraband. Sullivan
offered no evidence to rebut this inference . In fact, after one of the officers
described to him what had been confis cated , he sa id, “W ell, it’s mine. . . . What you
found is mine.” This is certainly enough evidence to show possession by Sullivan.
Second, Teran was apprehended coming out of the back bedroom where the
cocaine was found . One officer te stified th at he s aw wo men ’s clothing strewn about
the trailer. Also, Teran admitted to the officers that the writing tablet containing drug
transactions belong ed to he r. This is sufficient to show constructive possession on
Tera n’s beha lf. The q uestio n of ow nersh ip of drugs is a que stion of fact for the jury.
Based on all the foregoing facts, a rational trier of fact could have reached the
conclusion that both Defendants were in the possession of at least 0.5 grams of
cocaine with the intent to deliver.
-7-
Third, Defen dants argue that the evidence does not support their convictions
for posse ssion of d rug para pherna lia. See Tenn. Code Ann. § 39-17-42 5. They
contend that the straw and the syringe were n ever te sted to see if they we re actu ally
used to introduce the controlled substance into the body. However, the statute does
not require that the paraphernalia to have actually been used. Tennessee Code
Annotated section 39-17-402(12) provides that “‘[d]rug pa raphe rnalia’ m eans all
equipm ent, produc ts and m aterials of a ny kind w hich are u sed, intended for use, or
designed for use in . . . injecting, ingesting, inhaling or otherwise introducing into the
human body, a controlled substance.” (emphasis added). A straw found in the
same Crown Royal bag as the cocaine and a syringe found in the adjoining
bathroom are sufficient evide nce for a rational trier o f fact to find bo th Defen dants
guilty of possession of drug paraphernalia pursuant to Tennessee Code Annotated
section 39-17-4 25. We also note that the same possession analysis above applies
here a s well.
The judgment of the trial court is affirmed.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
GARY R. WA DE, Presiding Judge
___________________________________
JOHN EVERET T WILLIAMS, Judge
-8-
-9-