State of Tennessee v. Willard v. Fleming

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 18, 2014
STATE OF TENNESSEE v. WILLARD V. FLEMING
Appeal from the Criminal Court for Sullivan County
No. S57419 R. Jerry Beck, Judge
No. E2014-01137-CCA-R3-CD - Filed February 25, 2015
A jury convicted the defendant, Willard V. Fleming, of facilitation of the sale of cocaine, a
Class D felony; facilitation of keeping or maintaining a dwelling used for keeping or selling
controlled substances, a Class E felony; and assault, a Class A misdemeanor. The defendant
challenges the sufficiency of the evidence and denial of his motion to acquit, asserting that
the co-defendant’s testimony regarding the defendant’s involvement was insufficiently
corroborated; that there was no proof that drugs were present because only lay testimony
supported the conclusion that the substance sold was cocaine; that the evidence was
insufficient to prove that the defendant maintained the dwelling; and that the confidential
informant’s testimony did not establish the elements of assault. We conclude that the
evidence was sufficient to support the verdicts, and we accordingly affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER, and T IMOTHY L. E ASTER, JJ., joined.
Randall D. Fleming (at trial and on appeal) and Katherine L. Tranum (at trial), Kingsport,
Tennessee, for the appellant, Willard V. Fleming.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Barry Staubus, District Attorney General; and Josh Parsons, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTUAL AND PROCEDURAL HISTORY
The defendant’s convictions came about as the result of a controlled cocaine purchase
during which the defendant’s daughter discovered that the purchaser, a long-time friend, was
wearing a wire. The police subsequently extricated the purchaser, a confidential informant
who told law enforcement that the defendant had pointed a gun at him after the wire was
discovered. The defendant and his daughter were charged in a four-count indictment which
alleged that both had committed the offenses of sale of cocaine and maintaining a dwelling
which is used for keeping and selling controlled substances; the indictment further charged
the defendant with aggravated assault and his daughter with destruction of evidence. At trial,
the State presented the reluctant testimony of the confidential informant and the reluctant
testimony of the defendant’s daughter. The testimony of law enforcement and a video
recording of the transaction, in which the defendant was not visible, were also introduced.
Brian Puckett, the confidential informant, at first refused to testify. After the trial
court summoned an attorney to advise Mr. Puckett, he agreed to give evidence. The trial
court allowed the State to treat him as a hostile witness. Mr. Puckett stated that on October
7, 2009, he spoke to Terra Fleming, the defendant’s daughter, on the phone and arranged to
buy an “eight ball” of cocaine. Mr. Puckett testified that he was paid for his role in the
controlled buy but that his real motivation was to regain custody of his son, who had been
in the custody of the Department of Child Services since the arrest of the boy’s mother.
According to Mr. Puckett, prior to the purchase, Detective Cliff Ferguson wrote out a
statement saying that law enforcement would assist Mr. Puckett in a custody hearing if he
agreed to participate in the controlled buy. He testified that law enforcement reneged on this
agreement and that his attempts to reach Detective Nathan Elliott on his cell phone prior to
the custody hearing were unsuccessful.
Mr. Puckett testified that law enforcement put a wire on him and, following his
directions, drove him to the defendant’s home. Mr. Puckett knew that the defendant lived
at that residence because Mr. Puckett had grown up with the defendant’s daughter, Ms.
Fleming, and because at the time, he was a friend of the family. Ms. Fleming met Mr.
Puckett at the back door, and he gave her two hundred dollars. Mr. Puckett testified he could
see the defendant sitting in the living room in a love seat or recliner. Ms. Fleming took the
money, went in the house, returned, gave Mr. Puckett a hug, and felt the recording
equipment. Mr. Puckett testified that he believed Ms. Fleming had the cocaine with her. Mr.
Puckett initially testified that the cocaine was never placed in his hands; later, he testified that
he did not remember if it was in his hand and that Ms. Fleming may have grabbed it from
him.
After discovering the wire, Ms. Fleming tried to pull Mr. Puckett into the house, and
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Mr. Puckett started repeating the agreed-upon code word for distress, “Mickey Mouse.” He
testified that when Ms. Fleming tried to pull him into the house, he saw the defendant coming
through the hall from a recliner. On the video recording, Mr. Puckett could be heard to say
the defendant was on the bed. When questioned about this statement, Mr. Puckett testified
that it was false and that the defendant had been on the couch or recliner. Asked about the
gun, he at first only testified that he recalled “seeing something.” When pressed, he
acknowledged that it was a firearm “of some sort” and that he had told police he was afraid
the defendant would “blow [his] brains out” because “who wouldn’t be.” He nevertheless
testified that the defendant did not intend to point the firearm at him and that the defendant
did not, in fact, point the firearm at him. Mr. Puckett was secured by law enforcement and
taken to the police station to complete a statement.
Mr. Puckett was impeached with the statement he had signed on the night of the
purchase and which he essentially repudiated at trial. Mr. Puckett testified that the statement
was not written by him but by the officer who took it, that he felt had no choice but to sign
in order to get custody of his son, and that the officer “put words in [his] mouth.” Mr.
Puckett denied some material facts asserted in the statement, including that he set up the
transaction with the defendant instead of Ms. Fleming; that the defendant came to the door
and gave Ms. Fleming the cocaine so she could, in turn, give it to him; and that the defendant
pointed a gun at him. Although the trial court determined after a jury-out hearing that Mr.
Puckett’s signed statement should only be allowed as impeachment, the defense later asked
that it be made an exhibit. At the time that the statement was entered as an exhibit, the trial
court reiterated its instructions that a witness’s prior statement could only be considered for
impeachment. Mr. Puckett had a conviction for shoplifting.
Ms. Fleming, the defendant’s daughter and co-defendant, testified that she did not
want to appear as a witness against her father. Ms. Fleming stated that she, her father, and
her father’s girlfriend lived at the residence. Ms. Fleming and her family had lived there
“[s]ince [she] was little.” Ms. Fleming had also been a friend of Mr. Puckett since they
“were little kids.” Ms. Fleming testified that she did not make arrangements to sell Mr.
Puckett cocaine, that she in fact had only been home a few minutes when he arrived, and that
she had not had a phone with which to speak to him. While Ms. Fleming testified that she
was promised probation in exchange for her testimony, she later clarified that she had already
pled guilty and been sentenced to probation and that there was no express plea agreement in
place, but rather an understanding that there was a chance she would be called to testify.
Ms. Fleming confirmed that Mr. Puckett gave her about two hundred dollars for
cocaine. After watching the video, she recalled that he initially gave her one hundred eighty
dollars and that she had to ask him for the last twenty dollars. She testified that the cocaine
was in her father’s room, in his dresser; however, she did not get it from the dresser but
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directly from her father, who was “probably” sitting on his bed. She testified that when she
went back into the house after receiving the money, she walked a few steps to her father’s
room. He gave her the cocaine, which was already in a bag. She did not remember if she told
her father how much Mr. Puckett wished to purchase. She did not see scales or more than
one bag. Ms. Fleming testified she assumed it was an “eight ball,” which is a little over three
grams, because of the price. She testified that she then gave the cocaine to Mr. Puckett and
hugged him. She felt a box in his pants and then a cable coming up his back. When she felt
the cable, he started saying, “Mickey Mouse.”
Ms. Fleming testified that they scuffled and that Mr. Puckett punched her in the face
with a closed fist. She called for her father because Mr. Puckett hit her and not because of
her concern for the failed drug sale. Ms. Fleming testified that she never saw the defendant
in possession of anything that looked like a gun; there was a BB gun in the house belonging
to the defendant’s girlfriend, but Ms. Fleming had not seen it in months. The defendant’s
girlfriend was present during the incident and could be seen on the video. Ms. Fleming
testified that she did not give the money to her father and that she did not know what became
of it. She testified that she flushed the cocaine down the toilet. Ms. Fleming acknowledged
that she had initially told police that she did not destroy the evidence. She changed her mind
and told the truth when police told her she would be charged with attempted second degree
murder.
Four police detectives, Scott Reid, Cliff Ferguson, Nathan Elliott, and Steve Summey,
testified regarding the drug sale. While Detectives Reid, Ferguson, and Elliott were present
during the preparation of Mr. Puckett, all of them claimed not to be his “handler” as a
confidential informant. This was Mr. Puckett’s first time to work as a confidential informant,
and Mr. Puckett arrived at the station having already arranged the purchase. Detective
Ferguson acknowledged having filled out the paperwork detailing the department’s
agreement with Mr. Puckett immediately before the arranged purchase, but he testified in a
hearing outside the presence of the jury that a “handler” was generally assigned later and that
he had not been assigned to Mr. Puckett. The detectives testified that there was no agreement
in place regarding a custody hearing. Detective Elliott gave Mr. Puckett two hundred dollars
of photocopied money for the purchase. Detective Reid drove Mr. Puckett to the residence
while the other three followed in a separate car and parked a few doors down.
Detective Reid did not have any way of knowing what happened once Mr. Puckett left
the car, but the other three monitored the transaction via audio. When they heard the distress
code, they rushed to the back porch. Detective Summey testified that he was the first one
behind the house and that he saw a male and female run into the house and slam the door.
The other officers saw only Mr. Puckett. The officers retrieved Mr. Puckett, who had no
drugs or money on his person, and Detective Reid drove him to the station, where he gave
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a statement. Mr. Puckett was paid, although none of the officers recalled paying him.
The defendant, Ms. Fleming, and the defendant’s girlfriend remained in the house.
Detective Elliott left to secure a warrant for the premises, naming Ms. Fleming as the subject
of the search. Detective Summey testified that a negotiator spoke with the three occupants
on the phone and that they eventually came out of the residence around one-and-a-half or two
hours later. Detective Ferguson testified that they were in the residence about one hour.
Officers then searched the home for around one hour. Detective Summey testified that the
home was very cluttered, to the point that it was difficult to walk through. The photocopied
money used in the purchase was not recovered, and neither were any drugs or drug
paraphernalia. Detective Summey testified that he looked inside a washing machine as part
of the search. The machine contained standing water and a comforter. Under the comforter,
he found a black pistol which appeared to be a real firearm but was later determined to be a
pellet or cap pistol.
The video of the transaction was played in court numerous times. The video shows
that Mr. Puckett entered the residence’s back porch and knocked on the back door. Ms.
Fleming answered the door and asked the defendant what he needed. Mr. Puckett answered,
“An eight ball. Eight. Two hundred.” After the money was counted and supplemented, Ms.
Fleming held a bill up to the light. Mr. Puckett asked, “What’s your dad into?” Ms. Fleming
went briefly into the house, leaving the door open. Mr. Puckett stepped in the threshold so
that the home’s interior was briefly visible, and he called to some dogs inside. Ms. Fleming
returned. The video does not capture an exchange of drugs or the hug that both Ms. Fleming
and Mr. Puckett testified occurred. The video shows that shortly after Ms. Fleming’s return,
while she was standing close to Mr. Puckett, Mr. Puckett said, “Mickey Mouse,” and Ms.
Fleming began to call for her father and to plead, “Brian, please don’t do this to me.” The
camera was obscured as Mr. Puckett fell and continued to say the distress code. After police
extricated him, Mr. Puckett stated, “This … is worth more than $100 …. I about got my
teeth bl[own] in.” He elaborated that someone had “pulled a gun on me.” He further told
police that “they got the dope out of my hand.” Mr. Puckett stated, “He came outside. . . .
He’s back there on the bed.” On the video, Mr. Puckett can be heard to observe, “I better get
my son back.”
At the close of the State’s proof, the trial court granted the defendant’s motion of
acquittal with respect to the aggravated assault charge, concluding pursuant to State v.
McGouey, 229 S.W.3d 668, 674 (Tenn. 2007) that the evidence was not sufficient to show
that a deadly weapon was used. The jury was charged to consider the lesser-included offense
of assault. The jury convicted the defendant of the facilitation of the sale of cocaine; of the
facilitation of keeping or maintaining a dwelling where drugs are kept or sold; and of
misdemeanor assault, and it imposed a three-hundred-dollar fine for each of the felony
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convictions. The defendant, who was out on bond, did not appear at sentencing and was
sentenced in absentia. The trial court sentenced the defendant as a persistent offender to
eight years’ confinement for the facilitation of the sale of cocaine; to four years’ confinement
for the facilitation of keeping or maintaining a dwelling where drugs are kept or sold; and
to eleven months and twenty-nine days for the assault conviction, all to be served
concurrently. The defendant was subsequently apprehended. On appeal, he challenges the
sufficiency of the evidence.
ANALYSIS
I. Sufficiency of the Evidence and Motion for Judgment of Acquittal
Tennessee Rule of Appellate Procedure 13(e) requires a finding of guilt to be set aside
if the evidence is insufficient to support the finding beyond a reasonable doubt. When a
court evaluates the sufficiency of the evidence, it must determine whether, after considering
the evidence in a light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. State v. Hall, 8 S.W.3d
593, 599 (Tenn. 1999). This Court neither reweighs nor reevaluates the evidence, nor may
it substitute its inferences for those drawn by the trier of fact. State v. Bland, 958 S.W.2d
651, 659 (Tenn. 1997). “Questions concerning the credibility of witnesses, the weight and
value to be given the evidence, as well as all factual issues raised by the evidence are
resolved by the trier of fact.” Id. The appellate court affords the prosecution the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from it.
State v. Pope, 427 S.W.3d 363, 368 (Tenn. 2013). A guilty verdict removes the presumption
of innocence and replaces it with a presumption of guilt, and on appeal the defendant bears
the burden of showing why the evidence is insufficient to support the jury’s verdict. State
v. Franklin, 308 S.W.3d 799, 825 (Tenn. 2010). Circumstantial evidence is sufficient to
support a conviction, and – contrary to the defendant’s claim – “the circumstantial evidence
need not exclude every reasonable hypothesis except that of guilt.” State v. Wagner, 382
S.W.3d 289, 297 (Tenn. 2012).
The defendant asks us to separately consider whether the trial court erred insofar as
it denied his Rule 29 motion for judgment of acquittal. In deciding a motion for judgment
of acquittal, the trial court is concerned with the legal sufficiency of the evidence. State v.
Collier, 411 S.W.3d 886, 892 (Tenn. 2013). “The standard by which the trial court
determines a motion for a judgment of acquittal is, in essence, the same standard that applies
on appeal in determining the sufficiency of the evidence after a conviction.” State v. Little,
402 S.W.3d 202, 211 (Tenn. 2013). A distinction arises between a challenge to the
sufficiency of the convicting evidence and a challenge to the trial court’s denial of a motion
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to acquit in a circumstance in which the defendant introduces proof after the State rests its
case. A motion for judgment of acquittal is waived if the defendant introduces proof after
making the motion. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007). When the defendant
does not stand on a motion for judgment of acquittal, the appellate court may then consider
evidence introduced after the close of the State’s case-in-chief in assessing the sufficiency
of the evidence. See id. at 314, 316-17. In this case, the defendant introduced no proof after
the State rested its case. Accordingly, both challenges are to the sufficiency of the State’s
evidence at the close of its case, and we do not address them separately.
A. Corroboration of Co-Defendant’s Testimony
The defendant asserts that his convictions for facilitation of the sale of cocaine and
facilitation of the maintenance of a dwelling used for keeping or selling controlled substances
both depend on the uncorroborated testimony of his co-defendant and daughter, Ms. Fleming.
Accordingly, he challenges the sufficiency of the evidence supporting these convictions on
the basis that an accomplice’s testimony must be corroborated.
Evidence is insufficient to sustain a verdict when it is based solely on the
uncorroborated testimony of an accomplice. State v. Henry Lee Jones, __ S.W.3d __, No.
W2009-01655-SC-DDT-DD, 2014 WL 4748118, at *18 (Tenn. Sept. 25, 2014). An
accomplice is “one who knowingly, voluntarily, and with common intent with the principal
unites in the commission of a crime”; a witness is an accomplice if he or she could be
indicted for the same offense charged against the defendant. Collier, 411 S.W.3d at 894.
“Corroborative evidence must lead to the inferences that a crime has been committed and that
the defendant is implicated in the crime.” Henry Lee Jones, 2014 WL 4748118, at *18. The
corroborative evidence may be direct or circumstantial and need not be adequate to support
the conviction alone. State v. Bane, 57 S.W.3d 411, 419 (Tenn. 2001). “[I]t is sufficient to
meet the requirements of the rule if it fairly and legitimately tends to connect the defendant
with the commission of the crime charged.” Id. (quoting State v. Bigbee, 885 S.W.2d 797,
803 (Tenn. 1994) (emphasis omitted)).
Ms. Fleming, who was a co-defendant on the two charges challenged on the basis of
inadequate corroboration and who pled guilty to these crimes, was the defendant’s
accomplice. Accordingly, the State had to introduce evidence corroborating her testimony
that the defendant facilitated the commission of these crimes.
Ms. Fleming testified that she did not arrange the purchase of cocaine with Mr.
Puckett. According to her testimony, after Mr. Puckett gave her the money, she went into
the house, walked a few steps to her father’s bedroom, and her father handed her the pre-
packaged cocaine that had been in his dresser. She then stepped out and delivered it to Mr.
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Puckett. The testimony of Mr. Puckett, as well as the video of the transaction, corroborate
Ms. Fleming’s testimony that a sale of cocaine occurred.
We also conclude that the corroborative evidence connecting the defendant to the
crime is sufficient to sustain the verdict. Ms. Fleming’s testimony that she did not set up the
purchase is corroborated by the fact that she asked Mr. Puckett what he needed when she
answered the door and by the fact that Mr. Puckett told her both the quantity and price of the
cocaine. Ms. Fleming’s testimony that the defendant handed her the cocaine while sitting
on his bed is corroborated by Mr. Puckett’s statement, audible on the recording, that the
defendant was on the bed. Mr. Puckett also testified that when the door was open, he could
see the defendant in the house, albeit on the recliner according to his testimony. The
defendant’s involvement is also corroborated by Ms. Fleming’s action in immediately calling
for him when she discovered the recording equipment. Furthermore, Mr. Puckett testified
that the defendant approached him with what appeared to be a handgun immediately after the
discovery of the wire. Detective Summey saw a male flee into the house as he came around
the corner, and the defendant, along with his girlfriend and daughter, refused to come out of
the dwelling for over an hour after the arrival of the police. While not sufficient to sustain
the conviction in itself, this evidence corroborates the accomplice’s testimony in that it
“fairly and legitimately tends to connect the defendant with the commission of the crime
charged.” Bane, 57 S.W.3d at 419 (quoting Bigbee, 885 S.W.2d at 803).
The defendant was also convicted of the facilitation of knowingly keeping or
maintaining a dwelling that is used for keeping or selling controlled substances. T.C.A. §
53-11-401(a)(5) (2010). Ms. Fleming, the defendant’s daughter and accomplice, testified
that she and the defendant had lived in the house since she was little. She acknowledged
selling drugs there. The video of the transaction, in which the confidential informant asks
for an “eight ball” and gives Ms. Fleming two hundred dollars, as well as the confidential
informant’s testimony and statements in the video that he received cocaine are sufficient to
corroborate the element that the dwelling was used for keeping or selling controlled
substances. Furthermore, the confidential informant’s testimony that he had known the
defendant and Ms. Fleming to live at that address and that he was a longtime friend of the
family corroborate Ms. Fleming’s testimony tending to connect the defendant with the crime
charged.1
B. Ownership of the Dwelling
1
The defendant also challenges the sufficiency of the State’s evidence on the keeping or maintaining
of the dwelling, and we address the issue below.
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The defendant challenges his conviction for facilitation of keeping and maintaining
a dwelling used for keeping or selling controlled substances. The defendant asserts that the
State’s evidence was not sufficient to support the jury’s conclusion that he facilitated the
maintenance of the dwelling in question because the State did not introduce a lease or other
documents establishing the ownership of the property and because the search warrant only
named Ms. Fleming.
Tennessee Code Annotated makes it a crime:
Knowingly to keep or maintain any store, shop, warehouse,
dwelling, building, vehicle, boat, aircraft or other structure or
place that is resorted to by persons using controlled substances
in violation of part 3 of this chapter and this part, or title 39,
chapter 17, part 4, for the purpose of using these substances, or
that is used for keeping or selling them in violation of part 3 of
this chapter and this part, or title 39, chapter 17, part 4.
T.C.A. § 53-11-401(a)(5). There was no evidence at trial that the home was resorted to for
the purpose of using controlled substances. Accordingly, the State had to show that the
defendant facilitated the keeping or maintenance of a dwelling used for keeping or selling
controlled substances and that he acted knowingly. In examining this statute, this Court has
previously defined “keep” to mean “to watch over and defend,” “to have the care of,” or “to
cause to remain in a given place, situation, or condition,” and “maintain” to mean “preserve
from failure or decline” or “carry on.” State v. Laura Starkey, No. M2005-02896-CCA-R3-
CD, 2007 WL 1266581, at *5 (Tenn. Crim. App. May 2, 2007), perm. app. denied (Tenn.
Aug. 27, 2007) (quoting Webster’s Third New International Dictionary 1235 (1993)).
Facilitation occurs when “knowing that another intends to commit a specific felony, but
without the intent required for criminal responsibility under § 39-11-402(2), the person
knowingly furnishes substantial assistance in the commission of the felony.” T.C.A. §
39-11-403(a).
For the State to show that a person kept or maintained or facilitated the keeping or
maintenance of a dwelling in violation of the statute, evidence of ownership is not required.
Laura Starkey, 2007 WL 1266581, at *5. Instead, the State must prove that “the person
continuously exercised some authority or control over the property for an appreciable period
of time.” Id. Evidence of residency or ownership is relevant to the inquiry:
While proof of residency is a significant factor to consider, that
factor alone is not dispositive. Other factors that may be
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considered include whether the person owned or leased the
property; is the only permanent resident in the home; paid any
rent, taxes, or utilities; took part in the home’s maintenance or
upkeep; or provided furnishings for the home.
State v. Jawaune Massey, No. E2013-01047-CCA-R3-CD, 2014 WL 3661490, at *26 (Tenn.
Crim. App. July 23, 2014) (quoting Laura Starkey, 2007 WL 1266581, at *5).
In Laura Starkey, this Court concluded that the evidence was insufficient to show
maintenance by a co-defendant who was not shown to pay rent or other expenses, take part
in the home’s upkeep, have furnishings in the home, or have general control over the
property. Laura Starkey, 2007 WL 1266581, at *6. The court noted, however, that if
evidence had been introduced that she was involved in the home’s upkeep by cooking and
cleaning, the evidence likely would have been sufficient. Id. at *6 n.1. Although another
defendant in Laura Starkey likewise was not shown to have contributed financially or
otherwise to the home’s maintenance, the court nevertheless concluded that the evidence was
sufficient to support his conviction based on the fact that he exercised authority over the
house by allowing a police search, telling the co-defendant whether or not she could come
home, and acknowledging he had allowed the manufacture of methamphetamine. Id. at *6
(reversing conviction on other grounds); see also Jawaune Massey, 2014 WL 3661490, at
*26-27 (concluding that the proof did not show that the defendant contributed financially or
otherwise in the upkeep of the house or exercised control over the premises for an
appreciable time, when testimony showed that the defendant may have lived in the house for
a short period of time but had since moved to an apartment); State v. James Simonton, No.
E2006-01529-CCA-R3-CD, 2007 WL 3379791, at *10-11 (Tenn. Crim. App. Nov. 15, 2007)
(concluding that a defendant who did not own, rent, or contribute to property belonging to
his brother nevertheless maintained or kept it by occupying it and exercising supervisory
control, as shown by giving consent to a search).
Here, Ms. Fleming testified that she and her family had lived at the house “[s]ince
[she] was little.” Mr. Puckett also testified that, as a long-time friend of the family, he knew
the defendant to live at the dwelling. A woman appearing on the video recording was
identified by Ms. Fleming as the defendant’s girlfriend, who was also staying at the house.
The jury was free to draw the rational inference that the defendant, who had resided in the
dwelling since his adult daughter “was little” and who allowed his girlfriend to come to the
home, had “continuously exercised some authority or control over the property for an
appreciable period of time.” Laura Starkey, 2007 WL 1266581, at *5. Furthermore, the
evidence was sufficient to show that Ms. Fleming, who had lived at the residence since she
was “little” and who answered the door and allowed Mr. Puckett to step in and call to the
dogs, likewise continuously exercise control over the property for an appreciable time.
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Accordingly, we conclude that, despite the fact that the ownership of the property was not
established by proof at trial, the evidence was sufficient to show that the defendant
“knowingly furnishe[d] substantial assistance” to his daughter in the keeping or maintenance
of the dwelling, which the proof at trial established was used to keep or sell controlled
substances. T.C.A. § 39-11-403(a); see also State v. Elmer Herbert Simpson, No. E2013-
02336-CCA-R3-CD, 2014 WL 3827672, at *4 (Tenn. Crim. App. Aug. 5, 2014) (concluding
that evidence that defendant had stolen pills from his sister and had offered to sell them from
his home to an associate was sufficient to sustain the conviction); State v. John Anthony
Garrett, No. E2012-01898-CCA-R3-CD, 2013 WL 5373156, at *1 (Tenn. Crim. App. Sept.
23, 2013) (upholding guilty plea for defendant who sold cocaine to a confidential informant
during one controlled purchase).
C. Lay Testimony Establishing Presence of Cocaine
The defendant next challenges the sufficiency of the evidence based on the claim that
lay testimony from the defendant’s daughter is not sufficient to establish that the substance
sold to Mr. Puckett was cocaine. Because the evidence was destroyed, no lab reports or
testimony from trained law enforcement officers was introduced to establish that the
substance was cocaine.
Several Tennessee cases have permitted law enforcement officials to testify to the
presence of drugs without corroborating lab work, particularly when such testimony was
supported by field tests or other evidence. In State v. Anderson, the court upheld a conviction
based on the testimony of an officer who was permitted to testify that a substance was
marijuana based on appearance and on a field test. State v. Anderson, 644 S.W.2d 423, 424
(Tenn. Crim. App. 1982). Likewise, the testimony of an officer who had conducted a field
test which was positive for marijuana was sufficient to prove that the plant substance was
marijuana. State v. Hill, 638 S.W.2d 827, 830 (Tenn. Crim. App. 1982). In State v.
Doelman, a field of marijuana was never chemically tested, but several officers with training
in marijuana recognition testified that the plants were marijuana, and photographs of the field
and confessions from the defendants were introduced. State v. Doelman 620 S.W.2d 96, 98,
99 (Tenn. Crim. App. 1981). The court held that the evidence was sufficient to uphold the
verdict and that the officers’ testimony was properly admitted. Id. at 98, 99.
Recently, in State v. White, the Tennessee Supreme Court concluded that the
testimony of a law enforcement officer that a substance was marijuana was sufficient to
support the conviction even though it was not corroborated by field testing, a confession, or
the presence of drug paraphernalia. State v. White, 269 S.W.3d 903, 906 -07 (Tenn. 2008).
In White, the court concluded that the jury could have rationally concluded the substance was
marijuana from the officer’s testimony, from the evidence that the defendant was under the
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influence, and from inferences drawn from the defendant’s refusal to submit to drug testing.
Id. at 907. See also State v. Toussiant D. Turner, No. 01C01-9901-CC-00007, 1999 WL
787526, at *2 -3 (Tenn. Crim. App. 1999) (allowing investigator to testify that a substance
which was carried from an apartment where drugs were sold in a bag containing a weapon
and large amount of cash appeared to be crack cocaine despite absence of lab report); State
v. Randy Bowman, No. 01-C-01-9008-CR00211, 1991 WL 36511, at *1-2 (Tenn. Crim.
App. Mar. 21, 1991) (concluding that an experienced officer’s opinion that a substance was
marijuana was sufficient to sustain conviction when the State neglected to introduce a
stipulation regarding the lab report). Compare State v. Marise, 197 S.W.3d 762, 766 (Tenn.
2006) (concluding that the prior version of the statute, which made the chemical composition
of anhydrous ammonia an element of the crime, required the State to introduce chemical test
to prove the composition of the substance).
The defendant seeks to distinguish Doelman by noting that Ms. Fleming was not a
law enforcement officer and that she had no training in drug detection. However, our cases
have not limited testimony regarding the presence of drugs to law enforcement officers. In
State v. Pack, the only direct evidence offered by the State that a substance was
methamphetamine was the testimony of a witness who stated that he saw the defendant
prepare the drug and that he was familiar with the drug because he had injected it before.
State v. Pack, 421 S.W.3d 629, 639 (Tenn. Crim. App. 2013). The court concluded that the
rational inference to be drawn from the witness’s testimony that the defendant mixed the
substance in a teaspoon and prepared it for injection, as well as the defendant’s statement that
the group was “doing dope,” was that the substance was methamphetamine. Id.; see State v.
Noura Jackson, No. W2009-01709-CCA-R3-CD, 2012 WL 6115084, at *35 (Tenn. Crim.
App. Dec. 10, 2012) (allowing lay witnesses to testify that the defendant used drugs in their
presence) overruled on other grounds in State v. Jackson, 444 S.W.3d 554 (Tenn. 2014).
State v. Peter Gunn presents a situation, like the case at bar, in which the evidence
was not tested because it was destroyed. State v. Peter Gunn, No. 02C01-9511-CR-00352,
1996 WL 551757, at *1-2 (Tenn. Crim. App. Sept. 30, 1996). In Peter Gunn, a law
enforcement officer told the defendant he wished to purchase crack cocaine. The defendant
approached the co-defendant, who gave him “something.” Id. at *1. The defendant then
received the money from the officer and gave the substance, which appeared to be crack
cocaine, to the officer. Id. However, when the defendant saw the approach of uniformed
officers, he destroyed the evidence by swallowing it. Id. The co-defendant was found to
possess crack but denied giving any to the defendant that day. Id. *2. In concluding the
evidence was sufficient to sustain the conviction, this Court noted that, in addition to the
other direct and circumstantial evidence supporting the conclusion that the substance was
cocaine, “the jury could have inferred … a consciousness of guilt” from the defendant’s act
of swallowing the evidence. Id. *2.
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 Here, Mr. Puckett testified that he arranged to buy cocaine at the defendant’s
residence. According to the video and the testimony of Mr. Puckett and Ms. Fleming, he
arrived at the porch and gave Ms. Fleming two hundred dollars for an “eight ball,” which Ms.
Fleming testified was a little over three grams of cocaine. Ms. Fleming testified that she
retrieved cocaine from the defendant and that she gave it to Mr. Puckett. Mr. Puckett
testified both that the cocaine was not in his hands and that he did not remember if it was in
his hand and that Ms. Fleming may have grabbed it. In the video, Mr. Puckett tells officers
that “they got the dope out of my hand.” After the arrival of police, Ms. Fleming, the
defendant, and the defendant’s girlfriend fled into the house. Ms. Fleming acknowledged
that she flushed the cocaine down the toilet. The three remained in the house for between
one and two hours before a negotiator convinced them to come out.
We conclude that the evidence is sufficient to support the jury’s conclusion that the
substance was cocaine. Although Ms. Fleming was not a law enforcement officer with
training in the identification of drugs, she was in possession of the substance, was selling the
substance, and testified that the substance she was selling was cocaine. Mr. Puckett paid Ms.
Fleming two hundred dollars. When he paid, he asked for an “eight ball.” After the arrival
of police, Ms. Fleming destroyed the evidence. The jury was entitled to credit Ms. Fleming’s
testimony that the substance she was giving Mr. Puckett was cocaine and to draw the rational
inference that the substance was cocaine from Ms. Fleming’s actions of accepting two
hundred dollars for the substance, of representing to Mr. Puckett that the substance was
cocaine, and of destroying it on the arrival of police. The evidence was sufficient to support
the conclusion that the substance was cocaine even without a laboratory test, which was
made impossible by the co-defendant’s destruction of the evidence.
D. Assault
The defendant further claims that the evidence was not sufficient to establish that the
defendant assaulted Mr. Puckett with the BB gun. Assault, as charged in this case, is
committed when the offender intentionally or knowingly causes another to reasonably fear
imminent bodily injury. T.C.A. § 39-13-101(a)(2). The defendant cites to Mr. Puckett’s
equivocal testimony that he saw the defendant holding “something” and Ms. Fleming’s
testimony that the defendant’s girlfriend had a BB gun but that she had not seen the gun in
months. However, looking at the evidence in the light most favorable to the State, we
conclude that the evidence is sufficient to support the conviction. In addition to stating that
he saw the defendant holding “something,” Mr. Puckett testified that he saw the defendant
with what appeared to be a firearm. He acknowledged having said he was afraid the
defendant would “blow [his] brains out.” In agreeing that he was afraid, Mr. Puckett stated,
“who wouldn’t be[?]” The video shows Mr. Puckett telling police, “I about got my teeth
bl[own] in,” and stating that a gun was “pulled … on me.” When searching the home,
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Detective Summey found a black BB gun which resembled a Glock pistol and which he
initially thought might be an actual firearm. The gun was in a washing machine by the back
entrance of the house, and it was submerged in standing water under a comforter. While Ms.
Fleming testified that the defendant did not have a gun and while Mr. Puckett’s trial
testimony was equivocal, the jury was entitled to credit those parts of Mr. Puckett’s testimony
which supported the conclusion that the defendant threatened him with a BB gun, and it was
entitled to draw the rational inference that the BB gun was not normally stored in standing
water in a washing machine but had been put there for purposes of concealment after it was
used to threaten Mr. Puckett. The defendant is not entitled to any relief as to this issue.
CONCLUSION
Based on the foregoing, we conclude that the evidence is sufficient to sustain the
verdicts, and we affirm the judgment of the trial court.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
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