IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
MARCH SESSION , 1998 FILED July 1, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9705-CC-00170 ) Cecil Crowson, Jr.
Appellate C ourt Clerk
Appellee, )
)
) CARROLL COUNTY
VS. )
) HON. C. CREED MCGINLEY ANTWAIN LAMAN SPEARS, ) JUDGE )
Appe llant. ) (Direct Ap peal)
FOR THE APPELLANT: FOR THE APPELLEE:
RAYMOND L. IVEY JOHN KNOX WALKUP P. O. Box 229 Attorney General and Reporter Huntingdon, TN 38344 ELIZABETH T. RYAN
Assistant Attorney General 425 Fifth Avenu e North
Nashville, TN 37243
ROBERT RADFORD
District Attorney General
ELEANOR CA HILL
Assistant District Attorney P. O. Box 686
Huntingdon, TN 38344
OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE
OPINION
Appellant Antwain Laman Spears was indicted on May 6, 1996 by the
Carro ll Coun ty Grand Jury for po ssessio n of coca ine with intent to sell or deliver, possession of marijuana w ith intent to sell or deliver, and possession of unlawful drug paraphernalia. Concluding that Appellant lacked standing to contest the search warra nt, on J une 2 5, 199 6, the tria l court d enied Appe llant's motion to suppress the evidence seized pursuant to a search warrant, which had been executed at the residence of Margo Taylor. Moreover, the court determined that even if Appellant had standing, the sea rch warra nt appe ared to b e valid on its face. Appellant was convicted on September 16, 1996 , by a jury in the C arroll Coun ty Circuit Co urt of poss ession o f cocaine and m arijuana w ith intent to sell or deliver and possessio n of unlawful drug paraphernalia. The jury fined Appellant $15,000.00 for cocaine po ssession, $2 ,500.00 for m arijuana possession, and $7 50.00 fo r posse ssion of d rug para pherna lia. As a R ange II multip le offende r, Appella nt was sentenced to concurrent sentences of fifteen years incarceration with the Tennessee Department of Correction, three years, and eleven months and twenty-nine days, respectively. The trial court also revoked Appellant's probation resulting from a prior conviction. Appellant presen ts three issues for our consideration on this direct appeal: (1) whether the trial court erred in concluding that Appellant lacked standing to challenge the search of Mar go T aylor's r eside nce; (2 ) wheth er the tr ial cou rt impro perly denied Appe llant's motion to suppress the evidence seized during execution of the search warrant; and (3 ) wheth er the e videnc e was sufficie nt to su stain A ppella nt's convictions for possession of cocaine and marijuana with intent to sell or deliver and possession of drug paraphernalia.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
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I. FACTUAL BACKGROUND
The proof shows that on February 23, 1996, Deputy Lester McCaleb executed a search warrant at 42 Cherry Blossom Drive, a duplex in Huntingdon, Carro ll Coun ty. At this time , Ms. Ma rgo Ta ylor leased the dup lex. The search warrant was for cocaine and drug paraphernalia seen in the residence by a confiden tial informa nt.
At the suppression hearing, Appellant testified that he did not reside at the Cherry Blossom Drive addres s. He stated tha t he had purc hased a bedroom suite and need ed a p lace to store it until he obtained a place to rent. Appellant also stored some of his clothing at Ms. Taylor's residence, as he was in the process of moving from one place to another. At the suppression hearing, Appellant testified that h e spen t only two co nsecu tive nights 1 at the Taylor residence. Moreover, he stated that he never signed either a lease or a rental agreem ent. Finally, App ellant adm itted that although the bedroom door had a privacy lock , he neve r used it.
Ms. Margo Taylor testified at the suppression hearing that she signed the lease to the duplex with Marshanna2 Barnhill. Howeve r, Mr. Barnhill vacated the premises around the middle of January 1996. In the middle of F ebruary, Appellant moved his clothes and bedroom suite into the duplex. Ms. Taylor testified that Ap pellant kep t his belongings at her residence only with her permission.
At Appellant's trial, Deputy Lester McCaleb testified that no one was at home when h e arrived to execute the sear ch warra nt. Appro ximately th irty minu tes late r, howe ver, Mr . Haro ld Miller, the lan dlord, arrive d. After procuring
1 At trial, however, Appellant testified that he stayed only one night at the Taylor residence.
2 At trial, Mr. Bar nhill's first nam e is said to b e "Marc an."
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a key to the front doo r, Mr. Miller authorized D eputy McCale b and Sergeant Randal Dunn to enter the duplex. During Mr. Miller's absence, Appellant approached the area. Deputy McCaleb testified that Appellant seemed nervous and also appeared to Deputy McCaleb as though he was attempting to avoid the officers. De puty Mc Caleb th en serve d Appe llant with the s earch w arrant.
Sergeant Dunn testified that once inside, he and his drug dog proceeded to search the home. The dog alerted on the rear bedroom. The door to the bedroom was lock ed from the inside , and Mr. M iller opene d it by using a coat hanger. Upon entering the room, the dog indicated on Appellant's dresser and the headboard of his waterbed.
Deputy McCaleb searched the room a nd found insid e a dresser a box of plastic baggies and a cigar box containing a pack of rolling pap ers. Additionally, McC aleb's search revealed a brown paper bag located under a baseball cap which sat on the headboard of the bed. Inside the bag, Deputy McCaleb discovered two loose bags o f crack co caine, a film canister conta ining o ne sm all bag of crack cocaine, and two bags of marijuana.
Sandra Romanek, a special agent forensic scientist with the Tennessee Bureau of Investiga tion, teste d the items found both in the dresser and on the headboard. Her analysis disclosed the items to be 13.9 grams of cocaine base and 27.4 grams of marijuana.
Margo Taylor testified that she and Marcan Barnhill rented the duplex from Haro ld and Barbara Miller. Barnhill and Ms. Taylor lived together until the midd le of January 1996. During the middle of F ebruary, App ellant moved some furn iture and clothes into the room form erly occupied b y Mr. Barnhill. Som e of Mr. Barn hill's clothes re maine d in the be droom closet even afte r he had left.
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According to Ms. Taylor's testim ony, Ap pellant sp ent only o ne and one-ha lf nights in the dup lex, had n o key, an d paid no rent.
Tracy Willis, Appellant's former girlfriend, testified that Appellant resided with her from December 1995 until April 1996. Willis stated that Appellant maintained all of his personal items, i.e., furniture, clothes, shoes, and toiletries, at her ho use. W illis was aware that App ellant had purcha sed a b edroom suite and that he had stored it at Ms. Taylor's house.
At his trial, Appellant testified that he was living with Ms. Willis at the tim e the search warrant was executed. He explained that he stored his rec ently purchased bedro om s uite at M s. Tay lor's residence because he had no room for it at Ms. Willis' home and was attem pting to locate a plac e for him self an d his daughter. Appellant disclaimed any knowledge of the drugs that were found on the dresser and headboa rd but admitted that some of the baseball caps found on the headboa rd belonged to him. Appellant confirmed that he neither possessed a key to the dup lex nor paid rent to M s. Taylor.
II. STANDING
Appe llant's first conten tion on this direct app eal is that th e trial court erron eous ly conclud ed that he lacked s tanding to challenge the search of Margo Taylor's residence. We disagree.
The Fourth Amendment to the United States Constitution provides, "The rights of the people to be secure in their persons, houses, pape rs, and effects, again st unreasonable searches and seizures, shall not be violated, and no warran ts shall issue, but upon probable cause. . . ." U.S. Const. amend 4. Simila rly, Article I, § 7 of th e Ten nesse e Con stitution gu arantee s, "That th e
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peop le sha ll be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures. . . ." Tenn. Const. art. I, § 7.
The trial court's findings of fact on a motion to suppress are conclusive on appeal unless the evidenc e prepo nderate s agains t them. State v. Woods, 806 S.W .2d 205 , 208 (T enn. C rim. App . 1990); State v. Tate, 615 S.W.2d 161, 162 (Tenn. Crim . App. 1981). It is axiomatic that "One who challenges the reasonableness of a search or seizure has the initial burden of establishing a legitimate expectation of privac y in the place where p roperty is se arched ." State v. Oody, 823 S.W.2d 554, 560 (Tenn. Crim. App. 1991) (citing Rawlings v. Kentucky, 448 U .S. 98, 10 0 S.Ct. 2556, 65 L.Ed.2d 633 (1980)). This Court has held that an individual ma y have a legitimate expe ctation of privacy even where the property belonged to anothe r. Oody, 823 S.W .2d 554 , 560; State v. Turn bill, 640 S.W .2d 40, 45 (T enn. Crim. A pp. 1982).
In United States v. Haydel, the United States Court of A ppeals for the Fifth Circu it articulated a seven-factor analysis applicable to the standing inquiry. 649 F.2d 1152 (5th Cir. 1981). This Court has adopted and employed the Haydel factors in num erous c ases. See, e.g., Oody, 823 S.W .2d 554 , 560; Woods, 806 S.W .2d 205 , 208; Turn bill, 640 S.W.2d 40, 46.
W e now address ourselves to the task of applying the seven factors enunciated in the Haydel decision to the case at bar. These seven Haydel factors are the following: (1) property ownership; (2) whether the defendant has a posse ssory inte rest in the property seized; (3) whether the defendant has a possesso ry interest in the place searched; (4) whether the defendant has "a right to exclude others from that place"; (5) whether the defendant has "exhibited a subjective expec tation th at it would remain free from governmental invasion"; (6) whether the de fenda nt "took norm al prec aution s to m aintain his privacy"; and (7)
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whether the defendant was "legitimately o n the pre mises ." Haydel, 649 F.2d 1152, 1154-55. First, H arold Miller, not Appellant, owned the duplex located at 42 Cherry Blossom Drive. Second, Appellant disclaimed any knowledge of the marijuana and cocaine that were found in the bedroom on the headboard. Appellant denied having a possessory interest in the baseball caps which concealed the drugs. However, Appellant admitted owning two of the hats on the headboard. Third, Appellant had no possessory interest in the place searched. At the suppression hearing, Appellant admitted that he never signed a lease. At trial, Appe llant tes tified that he paid no rent to Ms. Taylor for the use of the bedroom and that she did not give him a key to the residence. Fourth, Appellant confirmed that he did not reside at the Cherry Blossom address when the search warrant was executed. Moreover, Ms. Taylor testified at the suppression hearing that Appellant stored his possessions in the bedroom only with her permission. As Appellant was not a co-tenant of Ms. Taylor's, kept his possessions at her residence only by her permis sion, and spent on ly a couple of nights in the duplex, it seems obvious that he did not have the right to exclude others. Fifth, Appellant testified at the supp ressio n hea ring tha t he ne ver lock ed the bedro om d oor in whic h his possessions were stored. Although the door was locked when th e police arrived to search the residence, Appellant stated that he had no t locked it. Therefore, Appellant apparently had no subjective expectation that the bedroom would remain free from governmental invasion. Sixth, Appellant did not take normal precautions to maintain his privacy, such as ensuring that the bedroom door remained locked in his absence. As previously stated, Appellant testified that he ne ver use d the lo ck on the be droom door. F inally, it appears that Appellant was legitimately on the premises because Ms. Margo Taylor granted him permission to store his belongings in the bedroom.
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In weighing the Haydel factors, we conclude that it is fairly obvious that Appellant lacked standing to challenge the validity of the search.
III. SUFFICIENCY OF AFFIDAVIT IN SUPPORT OF SEARCH WARRANT Appe llant next complains that in the affidavit in support of the search warran t, the affiant made knowing m isrepresentation s of fact. Specifically, Appellant alleges that the affiant made an intentional, if not reckless, statement to establish probable cause by referring to the premises as those of Appellant when they did not belong to him. We disagree.
The affidavit in support of the sea rch warrant refers to the premises to be searched as tho se of A ntwain Spea rs. App ellant c onten ds tha t withou t this statement, probable cause would not have existed.
The trial court's findings of fact in a hearing on a mo tion to suppress are conclusive on appeal unless the evide nce pre ponde rates ag ainst them . Turn bill, 640 S.W.2d 40, 45-4 6. In the present case, the trial court did not find "any false statements or stateme nts that we re mad e with reck less disre gard su ch as to invalidate the search in question." The court also concluded that the search warrant was valid both in the issuance and in the execution.
To buttress his argument, Appellant relies upon Deputy McCaleb's trial testimony that he consulted the 911 co mpute r listing directo ry for Carro ll County which showed the Cherry Blossom residenc e to be under the name of Ms. Margo Taylor. However, this evid ence was not before the trial court at the suppression hearing.
In State v. Little, the Tennessee Supreme Court sta ted tha t "the law is settled that a fraudulent misrepresentation of a material fact will invalidate a search warrant." 560 S .W .2d 40 3, 406 (Ten n. 197 8). An affidavit th at is
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sufficient on its face may be impeached in two circumstances: "(1) a false statement made with intent to d eceive the Court, whether material or immaterial to the issue of probable cause, and (2) a false statement, essential to the establishment of proba ble caus e, reckles sly mad e." Id. at 407. Neither of these two circumstances is present in the instant case. The search warrant is valid.
IV. SUFFICIENCY OF THE EVIDENCE Appe llant's final contention is that because the evidence in this case was entirely circum stantia l, it is insufficient to sustain his convictions for possession of cocaine with intent to sell or deliver, possession of marijuana with intent to sell or deliver, and possession of unlawful drug paraphernalia. We disagree.
W e begin by observin g that Ap pellant d oes not strengthen his argument by contending that the evidence is insufficient because it is circ ums tantial in nature. Tennessee law permits convictions based upon circumstantial evidence. State v. Tharpe, 726 S.W.2d 896, 900 (Tenn. 1987). Additionally, both direct and circum stantia l eviden ce we re pres ented at App ellant's trial.
This Court is obliged to review challenges to the sufficiency of the convicting evidence accord ing to certa in well-settled principles . A verdict o f guilty by the jury, appro ved by the trial ju dge, a ccred its the te stimo ny of the State's witnesses and res olves all co nflicts in the tes timony in favor of the State. State v. Cazes, 875 S.W .2d 253 , 259 (T enn. 19 94); State v. Harris , 839 S.W.2d 54, 75 (Tenn. 1992). Although an accused is originally cloaked with a presumption of innocence, a jury verdict removes this presumption and replaces it with one of guilt. State v. Tug gle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with Appellant to demonstrate the insufficiency of the convicting evidenc e. Id. On appeal, "the [S]tate is entitled to the strongest legitimate view of th e evide nce a s well a s all reason able an d legitima te inferences that ma y be draw n therefro m." Id. (citing State v. Cabbage, 571 S.W.2d 832, 83 5 (Ten n. 1978 )). W here the sufficie ncy of th e evide nce is contested on appeal, the relevant question for the reviewing court is whether any rational trier of fact could have found the accused guilty of every element of the offense beyond a reasonable doubt. Harris , 839 S.W .2d 54, 75 ; Jackson v. Virgin ia, 443 U .S. 307, 3 19, 99 S .Ct. 2781 , 2789, 61 L.Ed.2d 560 (19 79). In conducting our eva luation of the c onvictin g evide nce, th is Court is precluded from reweighing or recon sidering th e eviden ce. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 19 96); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, this Court may not substitute its own inferences "for those drawn by the trier of fact from circums tantial evide nce." Matthews, 805 S.W.2d 776, 779. Finally, T ENN. R. A PP. P. 13(e) provides, "Findings of guilt in criminal actions whethe r by the trial co urt or jury sha ll be set asid e if the evidenc e is insufficient to support the findings by the trier o f fact of g uilt beyo nd a re ason able doubt." See also Matthews, 805 S.W.2d 776, 780.
Tenn . Code Ann. § 3 9-17-41 7 provide s in pertine nt part:
(a) It is an offense for a de fendant to kno wingly:
(4) Possess a controlled substanc e with inten t to manufacture, deliver or sell such controlled substance.
(c) A violation of subsection (a) with respect to:
(1) Cocaine is a Class B felony if the amount involved is point five (.5) grams or more of any substance containing cocaine and, in addition thereto, may be fined not more than one hundred th ousand d ollars ($100,000 ).
(g)(1) A violation of subsection (a) with respect to a Sche dule VI contro lled substance classified as marijuana containing not less than one-half (1/2) ounce (14.175 grams) nor more than ten pounds (10 lbs.) (4535 g rams) of m arijuana, or a Sche dule VI controlled substance defined as a non-leafy, resinous material containing tetrahyd rocannab inol (hashish),
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containing not more than two pounds (2 lbs.) (905 grams) of hashish is a Class E felony and, in addition thereto, may be fined not mo re than five thousa nd dollars ($5,00 0).
Tenn. Code Ann. § 39-17-417.
Tenn. Code A nn. § 39-17-4 19 perm its the jury to infer "from th e amo unt of a controlled substance or substance s possess ed by an offen der, along w ith other relevant facts surrounding the arrest, that the controlled substance or substances were poss esse d with th e purp ose o f selling or otherwise dispensing." Tenn. Code Ann. § 39-17-419. Tenn. Code Ann. § 39-17-425(a)(1) provides:
(a)(1) Except when used or posse ssed w ith the inten t to use by a person authorized by this part and title 53, chapter 11, parts 3 and 4 to dispense, prescribe, manufacture or possess a controlled substance, it is unlawful for any person to use, or to posse ss with inte nt to use, drug paraphernalia to. . . pack.
. ., store. . ., inhale, or otherwise introduce into the human body a c ontrolled s ubstan ce in violation of this part.
Tenn. C ode Ann . § 39-17-425 (a)(1).
The State wa s require d to prove each and every element of the charged offenses beyond a reaso nable d oubt.
Respecting Appellant's convictions for possession of cocaine and marijuana with intent to s ell or de liver, the d rug do g indic ated o n App ellant's dresser and on the hea dboard of his wate rbed. Depu ty McCaleb testified that he found c rack coc aine an d mariju ana un dernea th a baseball hat which lay on the headbo ard of the waterbed. Inside a brown paper bag was a Crown Royal bag containing two loose bags o f crack co caine an d a film ca nister with anoth er sm all bag of cocaine. Deputy McCaleb also discovered two bags of marijuana inside the Cro wn Ro yal bag.
Sandra Romanek, a special agent forensic scientist with the Tennessee Bureau of Investiga tion, testified th at she pe rformed various tes ts on the items
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retrieved in the se arch. H er resu lts revea led 13.9 gra ms of cocaine base and 27.4 gra ms of m arijuana.
The jury obviously concluded that Appellant possessed these substances and intended to sell or otherwise dispense of the cocaine and marijuana because of the amounts recovered. Tenn. Code Ann. § 39-17-419 permits such an inference .
Finally, we address the evidence supporting Appellant's conviction for possession of unlawful drug paraphernalia in violation of Tenn. Code Ann. § 39- 17-425(a)(1). Deputy McCaleb testified that during the search of the bedroom, he found a pack of rolling papers inside a cigar box. Deputy McCaleb found a box of plastic baggies in A ppellant's dresser drawers. Deputy McCaleb explained that both rolling papers and plastic baggies are used to package, store, and inhale controlled substances. The jury properly could infer that the baggies and rolling pape rs belo nged to App ellant, a s thes e item s were discov ered in side h is dresser in a bedroom used by him to store his furniture.
The judgment of the trial court is affirmed.
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JERRY L. SMITH, JUDGE
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CONCUR:
(See below ) JOE B. JONES, PRESIDING JUDGE
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GARY R. WADE, JUDGE
The H onorab le Joe B . Jones d ied May 1, 1998 , and did n ot participa te in this Opinion. We acknowledge his faithful service to this Court, both as a member of the Court and as its Presiding Judge.
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