State of Tennessee v. Billy Ray Allen ( 2015 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
January 21, 2015 Session
STATE OF TENNESSEE v. BILLY RAY ALLEN
Appeal from the Criminal Court for Sullivan County
No. S55,024 R. Jerry Beck, Judge
No. E2014-00967-CCA-R3-CD - Filed March 20, 2015
The Defendant, Billy Ray Allen, was convicted by a Sullivan County Criminal Court jury of
facilitation of possession with the intent to sell or to deliver twenty-six grams or more of
cocaine, a Class C felony. See T.C.A. §§ 39-17-417(a)(4) (2010) (amended 2012, 2014)
(possession with intent to sell and to deliver); 39-11-403(a) (2014) (facilitation). The trial
court sentenced the Defendant as a Range II, multiple offender to six years’ confinement.
In this delayed appeal, the Defendant contends that the evidence is insufficient to support his
conviction. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which J AMES
C URWOOD W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.
Gene G. Scott, Jr. (motion for new trial & on appeal), Jonesborough, Tennessee, and Richard
A. Spivey (at trial), Kingsport, Tennessee, for the appellant, Billy Ray Allen.
Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel;
Barry P. Staubus, District Attorney General; and James F. Goodwin and Adam Moore,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case relates to the seizure of twenty-six grams or more of crack cocaine during
the search of an apartment. At the trial, Kingsport Police Corporal Timothy Horne testified
that on March 21, 2007, at 11:00 p.m., he received information that led him, Sergeant
Crawford, Detective Summey, and Detective Ferguson to respond to Aspen Ridge
Apartments. All of the officers traveled together in an unmarked vehicle and wore civilian
clothes and gear identifying them as police officers. As Sergeant Crawford drove into the
apartment complex, Corporal Horne saw a person whom he later identified as Russell
Malone, who froze when Corporal Horne made eye contact with him. Corporal Horne said
Mr. Malone turned, stared at the officers and then at the ground, turned, and walked between
two apartment buildings. Corporal Horne temporarily lost sight of Mr. Malone as the
officers continued to drive through the complex. Detectives Summey and Ferguson got out
of the vehicle, and Corporal Horne and Sergeant Crawford drove to the lower level of the
complex to look for Mr. Malone.
Corporal Horne testified that he and Sergeant Crawford found Mr. Malone standing
at the corner of building A, adjacent to apartment A4. Detectives Summey and Ferguson
arrived shortly thereafter. As the officers talked to Mr. Malone, Lakisha Johnson arrived in
a Ford Taurus, got out of her car, and walked to where the officers and Mr. Malone were
talking. They were less than 30' from the front door of apartment A4. The officers learned
that Ms. Johnson was staying in apartment A4, and they asked permission to search it.
Corporal Horne said that Ms. Johnson consented to a search, that she had keys to the
apartment, and that Mr. Malone did not have keys. He said that the Defendant was inside the
apartment lying on a bed when everyone entered for the search. Corporal Horne did not see
anyone enter or leave the apartment while they were talking outside. He also did not see any
lights or hear any noises coming from inside the apartment.
Corporal Horne testified that when he first saw the Defendant, the bed was made, a
cell phone was beside the Defendant, and the Defendant did not appear to have been
sleeping. The Defendant told Corporal Horne that he lived in apartment K1, which was
about 100' from apartment A4. Corporal Horne said that during their conversation, the
Defendant suggested the police search apartment K1 and that the officers requested and
obtained the Defendant’s consent before a search of apartment K1 was conducted. When the
police searched apartment K1, they found $405 in cash in a sweatshirt hood inside a closet.
Corporal Horne said apartment K1 was fully furnished.
Corporal Horne testified that the Defendant said he was from Arkansas and had lived
in Kingsport for about one year. When the Defendant was asked why he was inside
apartment A4, he said that he had helped Ms. Johnson move into the apartment earlier that
day. The Defendant said he was a truck driver and had driven to Kingsport from Arkansas
for work before helping Ms. Johnson move. The Defendant said he was lying on the bed
because he was tired from the drive and from unloading Ms. Johnson’s belongings. The
Defendant did not tell Corporal Horne how long he had worked as a truck driver but said he
usually drove for one week and returned home for one week. Corporal Horne did not see an
eighteen-wheel truck parked at the apartment complex.
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Corporal Horne testified that during the search of apartment A4, Detective Summey
found a sock containing crack cocaine inside the toilet tank. The Defendant, Mr. Malone,
and Ms. Johnson were arrested.
Corporal Horne testified that on March 21, 2007, he had worked in the vice and
narcotics unit for three years and that he learned a common way to package cocaine
possessed for sale or delivery was to break down a large rock of crack cocaine into smaller
sizes, ranging from one-half gram to an “eight ball.” He said one gram of cocaine sold for
about $100, depending upon demand and the purity level. He said 28.35 grams was
equivalent to one ounce.
On cross-examination, Corporal Horne testified that Sergeant Crawford knocked on
the door of apartment A4 before everyone entered. He agreed the Defendant wanted the
officers to search his apartment. When asked what he meant by his testimony that the $405
was hidden, he said the money was not accessible, “[n]ot in a bank,” and “not somewhere
you could run and access it.” He agreed no drugs were found on the Defendant and said the
Defendant’s hands were not wet when he was handcuffed.
On redirect examination, Corporal Horne testified that he did not know how long the
Defendant had been inside apartment A4. The officers, Mr. Malone, and Ms. Johnson talked
outside the apartment for about ten to fifteen minutes before they entered for the search.
Corporal Horne did not know what the Defendant did during that time. On recross-
examination, he stated that the front door was the apartment’s only exterior door.
Lakisha Johnson testified that she knew Mr. Malone through Kevin Allen, her former
boyfriend and the Defendant’s brother. She met the Defendant in 2005 or 2006, but she did
not know him well. She said that around March 21, 2007, the Defendant and his brother
traveled to Arkansas to visit their mother. Although she denied living with the Defendant
after her relationship with the Defendant’s brother ended, she said the Defendant stored some
of her belongings in his garage at the apartment complex.
Ms. Johnson testified that she moved to Kingsport when she was dating the
Defendant’s brother and that they lived next door to the Defendant. She did not know if
anyone lived with the Defendant. She said the Defendant mentioned to her that he was a
truck driver, but she denied seeing the Defendant drive a truck at the apartment complex.
Ms. Johnson testified that on March 21, 2007, she began renting apartment A4 and
that she obtained the keys to the apartment around “noon or evening” that day. She said the
Defendant paid for the deposit in cash, although she intended to reimburse the Defendant.
She had only moved her clothes and television into the apartment when the officers arrived
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that night. She said that after she obtained the keys, she saw a woman near apartment A4 and
that the woman was moving out. Ms. Johnson never saw the woman again.
Ms. Johnson testified that the Defendant helped her find the apartment because she
and her daughter needed a place to live and because she was unfamiliar with Kingsport. She
did not know if anyone was inside her apartment on the day she obtained the keys but said
the Defendant and Mr. Malone helped her move. She said the Defendant and Mr. Malone
moved her belongings that were stored in the Defendant’s apartment. She said they made
one trip to her apartment from the Defendant’s apartment. Although she did not recall when
they made the trip, she said it was still daylight. She said that when she later arrived at her
apartment, she saw Mr. Malone outside talking to several police officers.
Ms. Johnson testified that she told the police officers outside her apartment that she
was staying at apartment A4 and that she had keys. Corporal Horne requested her consent
to search the apartment, and Ms. Johnson consented because she did not have anything illegal
inside. She denied knowing drugs were inside the apartment. The Defendant was inside her
apartment when the police entered. She cried when the officers found the drugs in the toilet
tank because she knew she was a suspect, although the drugs did not belong to her. Ms.
Johnson received probation related to this case.
On cross-examination, Ms. Johnson testified that although she did not know about the
drugs, she pleaded guilty to a crime because her attorney advised her a conviction was likely
because the apartment was leased to her. She agreed she did not see the Defendant place
drugs in the toilet tank.
Kingsport Police Sergeant Tim Crawford testified that on March 21, 2007, he worked
in the vice and narcotics unit and responded to Aspen Ridge Apartments with Corporal
Horne and Detectives Ferguson and Summey. He provided similar testimony regarding their
arrival at the apartment complex and coming into contact with Mr. Malone and Ms. Johnson.
Mr. Malone told Sergeant Crawford that he had been staying with the Defendant in apartment
K1 but that he was “going back to A4.” Mr. Malone did not have keys to apartment A4.
Sergeant Crawford testified that nobody entered or left apartment A4 while he and the
other officers spoke to Mr. Malone and Ms. Johnson. He did not see any lights or hear any
noises coming from the apartment. Ms. Johnson said she rented the apartment, gave him the
apartment keys, and consented to a search. He unlocked the doorknob and the deadbolt. He
said the Defendant was lying on the apartment’s only bed. The bed was made, and the
Defendant was lying on top of the bedspread. The Defendant sat up, and Sergeant Crawford
said the Defendant did not appear startled or sleepy. The Defendant did not ask why the
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officers were there. Sergeant Crawford did not ask the Defendant why he was there.
Detective Summey found the crack cocaine.
Sergeant Crawford testified that the Defendant said he lived in apartment K1 and that
he was an “over-the-road truck driver.” He did not see any eighteen-wheel trucks in the
parking lot. He said that after the cocaine was found, the Defendant and Mr. Malone were
transported to the jail by Officer Wayt. Officer Wayt’s police cruiser had video and audio
recording equipment.
On cross-examination, Sergeant Crawford testified that to his knowledge, the
Defendant did not have any drugs or a key to apartment A4 in his possession. He was not
present when Mr. Malone stated that the drugs were his and that the Defendant and Ms.
Johnson “had nothing to do with it.”
Kingsport Police Detective Steve Summey testified that on March 21, 2007, he
worked in the vice and narcotics unit and responded to Aspen Ridge Apartments with the
other officers. He provided similar testimony regarding their arrival at the apartment
complex and contact with Mr. Malone and Ms. Johnson. Detective Summey said that
Sergeant Crawford talked to Mr. Malone and asked who lived in apartment A4. During the
exchange, Ms. Johnson arrived, and Mr. Malone indicated that Ms. Johnson lived in the
apartment.
Detective Summey testified that Ms. Johnson consented to a search of apartment A4,
produced the keys, and gave them to Sergeant Crawford. He said the Defendant was inside
the apartment lying on a bed. The Defendant sat up when the officers entered the apartment
and did not ask why the officers were there. Detective Summey did not speak to the
Defendant, but he assisted in the search. He found a sock floating inside the toilet tank,
grabbed it, and felt what he thought were rocks of crack cocaine inside a plastic bag. Inside
the sock he found four large plastic bags containing several individual crack cocaine rocks
wrapped in smaller plastic bags. He said that based on his training and experience, the
packaging was indicative of “the sale of crack cocaine.” He said that usually a small bag
contained “a 20 rock” of crack cocaine worth $20 and that usually 0.5 gram of crack cocaine
sold for $50. Detective Summey said he had found drugs hidden inside a toilet tank in other
investigations.
Detective Summey testified that he left the bathroom without the crack cocaine and
walked toward the Defendant without speaking to anyone. He said the Defendant looked
down, shook his head, looked toward Ms. Johnson, and shook his head again. He said the
Defendant, Mr. Malone, and Ms. Johnson were arrested. No fingerprint analyses were
conducted on the plastic bags because they had been in the water.
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On cross-examination, Detective Summey testified that when the officers first arrived
at the apartment complex, he thought Mr. Malone attempted to get away from the officers.
Detective Summey did not search the Defendant and was unaware if drugs were found on
the Defendant. He said that the Defendant’s shaking his head and looking at Ms. Johnson
led him to conclude that the Defendant realized he was “caught.” He admitted, though, that
he did not know the Defendant’s thoughts when the Defendant shook his head. Relative to
the sock, he could not recall if it was a man’s or a woman’s sock, but after looking at it, he
said it was a small ankle sock. He knew Mr. Malone pleaded guilty before the Defendant’s
trial, claimed ownership of the drugs, and claimed the Defendant and Ms. Johnson had
nothing to do with the drugs.
On redirect examination, Detective Summey testified that nothing about the sock
indicated it belonged to a woman and that he did not “find a match” for the sock. On recross-
examination, he stated that he did not look for a match.
Kingsport Police Detective Cliff Ferguson testified that he responded to Aspen Ridge
Apartments on March 21, 2007. The Defendant was lying on the bed when he entered
apartment A4. He did not speak to the Defendant during the search but said the Defendant
did not appear startled by the officers’ entering the apartment. He agreed, though, that he did
not ask the Defendant what he was doing inside the apartment.
Tennessee Bureau of Investigation (TBI) Special Agent Jacob White, an expert in
drug identification and controlled substances, testified that he analyzed the rock-like
substances. Two large Ziploc bags were submitted for analysis. Each bag contained four
smaller plastic bags, which in turn contained several smaller “corner” plastic bags with rock-
like substances inside. He only analyzed the contents of one large Ziploc bag. Inside the
four smaller plastic bags, he found 100, 56, 99, and 100 corner plastic bags respectively. The
weight of the rock-like substances from 80 of the corner plastic bags was 27.5 grams. He
said that the gross weight of the remaining rock-like substances he did not analyze was 189.6
grams. He concluded that the 27.5 grams he analyzed contained cocaine base.
On cross-examination, Agent White testified that he did not perform fingerprint
analyses on the plastic bags and that fingerprint analysis was not requested. He agreed that
the evidence was submitted for analysis on April 3, 2007, but that he did not perform his
analyses until April 6, 2009.
Kingsport Police Officer Thomas Wayt, Jr., testified that on March 21, 2007, he
responded to Aspen Ridge Apartments but that he did not speak with anyone or collect
evidence. He said, though, that he transported the Defendant and Mr. Malone to the jail. He
searched Mr. Malone before placing him inside the police cruiser and said he found a crack
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pipe and a plastic bag with a torn corner inside Mr. Malone’s pants pockets. The Defendant
was placed inside the same police cruiser, and Officer Wayt found no evidence on the
Defendant before placing him inside the cruiser. Officer Wayt said that after they arrived at
the jail, he found Mr. Malone holding a plastic bag containing a cream-colored rock, which
he believed was crack cocaine.
Officer Wayt testified that the police cruiser had audio and video recording equipment
and that he manually activated the recording system before Mr. Malone and the Defendant
were placed inside. The recording was played for the jury.
In the recording, Mr. Malone was placed inside the police cruiser and began to move
around in his seat. After the Defendant was placed inside the cruiser, the men talked.
Although the majority of the Defendant and Mr. Malone’s conversation was inaudible, the
Defendant told Mr. Malone that he would get Mr. Malone an attorney and pay any bond and
fines Mr. Malone incurred. The Defendant told Mr. Malone that the Defendant would do
whatever it took to get him out of jail and that all Mr. Malone had to do was “get [him] clear
of this s---.” The Defendant said it was Mr. Malone’s fault anyway. The Defendant stated
that he “tried to call her on the phone and tell her she didn’t have . . . keys to the d--- thing.”
The Defendant told Mr. Malone that the police had to release him and Mr. Malone. The
Defendant directed Mr. Malone to tell the police that Mr. Malone was helping Ms. Johnson
move, that Mr. Malone just returned with “the s---,” that Mr. Malone did not want to lose it,
and that Mr. Malone put it in the toilet tank. The Defendant told Mr. Malone to tell the
police that he thought the Defendant was gone from the apartment and did not know the
Defendant was inside. The Defendant asked if Mr. Malone saw the police officers when they
arrived, and Mr. Malone shook his head from side to side. They discussed the police
officers’ entering the apartment complex and their finding Mr. Malone. The Defendant said
that he saw the police enter the apartment and that Ms. Johnson should never have opened
the door. The Defendant said he attempted to stall the officers by taking them to his
apartment. The Defendant stated that the police had to set Mr. Malone’s bond that night.
On cross-examination, Officer Wayt testified that he did not enter apartment A4. He
said that although he could not determine what Mr. Malone was doing inside the police
cruiser before the Defendant was placed inside, Mr. Malone appeared to reach for something
in his buttocks area. He agreed that Mr. Malone had crack cocaine in his hand when they
arrived at the jail and that the Defendant did not possess any drugs.
Russell Malone testified for the defense that he was incarcerated at the time of the trial
for possession of drugs. He stated that he placed the drugs inside the toilet without the
Defendant’s knowledge. He said the Defendant did not give him the crack cocaine or have
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anything to do with the drugs. He agreed that he told Detective Horne that the drugs were
his and that the Defendant had no knowledge of the drugs.
On cross-examination, Mr. Malone testified that he had known the Defendant for
about two years at the time of his arrest and that they were acquaintances. He denied living
with the Defendant but said he showered at the Defendant’s apartment. He lived with his
girlfriend but said he told the arresting officers that he stayed with the Defendant. Mr.
Malone was originally from Arkansas but had lived in Kingsport for about three or four years
at the time of his arrest. He said the Defendant paid the rent and the utilities for apartment
K1. Mr. Malone agreed he did not have a lot of money at the time of his arrest but said he
had a 1991 Chevy. He said that on the day of his arrest, he had returned from Arkansas with
the Defendant. Mr. Malone denied the purpose of the trip was to obtain crack cocaine and
said the Defendant “had business” in Arkansas. Mr. Malone said he visited his family, and
he and the Defendant separated while in Arkansas. He did not ask the Defendant about his
reason for traveling to Arkansas.
Mr. Malone testified that the Defendant drove the Defendant’s vehicle to Arkansas
while Mr. Malone’s vehicle remained in the parking lot at the apartment complex. He said
most of the drugs found inside apartment A4 were bought in Kingsport. Although he
admitted he told the arresting officers that he went to Arkansas and returned with crack
cocaine, he said it was irrelevant to “that particular incident that day.” He admitted to storing
five ounces, or 147 grams, of crack cocaine inside the toilet tank. He said that the drugs were
valued at $100 per gram and that he knew the value because he had purchased cocaine
previously.
Mr. Malone testified that he placed the cocaine inside the toilet tank before the
Defendant arrived at Ms. Johnson’s apartment. Although Mr. Malone denied knowing Ms.
Johnson, he agreed he stored the cocaine inside her apartment. He said, “The purpose of it
– me putting it there was not to – to leave – to be stored there.” He said he placed the drugs
in the toilet after wrapping them in plastic on the day of his arrest. When asked if he placed
the drugs in a sock before putting them in the toilet tank, he said, “Again, it was in plastic.”
He admitted using drugs and intending to sell the cocaine from apartment A4. He agreed
cocaine was usually sold in small plastic bags.
Mr. Malone testified that the Defendant knew Ms. Johnson and that she asked Mr.
Malone to help her move her belongings into apartment A4. He said he was inside the
apartment because he helped Ms. Johnson move her belongings. He denied the Defendant
moved her belongings. He said Ms. Johnson left to run errands and left the apartment door
unlocked. He did not have keys to the apartment. Mr. Malone placed the drugs inside Ms.
Johnson’s apartment while she was gone. He said he returned to the Defendant’s apartment
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and waited for someone to call him and provide instructions about delivery of the drugs. He
denied he intended to leave the cocaine inside Ms. Johnson’s apartment.
Mr. Malone testified that although he told the officers he was unemployed at the time
of his arrest, he worked at the Defendant’s carwash. He denied that the drugs belonged to
the Defendant and that the Defendant placed the drugs inside the toilet tank. He denied he
would have stored the drugs at his girlfriend’s house if the drugs were his. He agreed he left
the apartment to throw out the garbage and said he might have locked the door accidentally.
He agreed, though, that he could not have locked the deadbolt when he left the apartment.
The Defendant was inside the apartment waiting for Ms. Johnson to return when he left to
take out the garbage. Mr. Malone said the Defendant was awake when he left.
Mr. Malone testified that he was gone for about five minutes, that he saw the officers
when he was outside, and that he became nervous when he saw them. He said the officers
stopped him outside Ms. Johnson’s apartment. Ms. Johnson arrived while he talked to the
officers, and he said Ms. Johnson consented to a search. He did not know if the officers
unlocked both locks but knew the officers used a key.
Mr. Malone testified that although he did not recall a lengthy conversation with the
Defendant in the back of the police cruiser, he recalled apologizing to the Defendant for
involving the Defendant. He did not recall the Defendant’s stating that the Defendant would
pay his bond or that the Defendant blamed him for the arrests. He said his bond was later
reduced to $4000 and said his family, not the Defendant, paid it.
Upon this evidence, the Defendant was convicted of facilitation of possession with
the intent to sell or to deliver or to sell twenty-six grams or more of cocaine. The trial court
sentenced him to six years’ confinement. This appeal followed.
The Defendant contends that the evidence is insufficient to support his conviction.
He argues that the evidence only shows that he was present at Ms. Johnson’s apartment when
the officers found the drugs. The State responds that the evidence sufficiently shows that the
Defendant participated in the offense to the extent necessary to support his conviction. We
agree with the State.
In determining the sufficiency of the evidence, the standard of review is “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.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979); see State v. Vasques, 221 S.W.3d 514, 521
(Tenn. 2007). The State is “afforded the strongest legitimate view of the evidence and all
reasonable inferences” from that evidence. Vasques, 221 S.W.3d at 521. The appellate
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courts do not “reweigh or reevaluate the evidence,” and questions regarding “the credibility
of witnesses [and] the weight and value to be given the evidence . . . are resolved by the trier
of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); see State v. Sheffield, 676
S.W.2d 542, 547 (Tenn. 1984).
“A crime may be established by direct evidence, circumstantial evidence, or a
combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see also State
v. Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether
the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331
S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).
It is a crime to “[p]ossess a controlled substance with intent to . . . deliver or sell [a]
controlled substance.” T.C.A. § 39-17-417(a)(4). Delivery is defined as “the actual,
constructive, or attempted transfer from one person to another of a controlled substance,
whether or not there is an agency relationship.” Id. § 39-17-402(6) (2014). A sale is “a
bargained-for offer and acceptance, and an actual or constructive transfer or delivery” of a
controlled substance. State v. Holston, 94 S.W.3d 507, 510 (Tenn. Crim. App. 2002).
Possession of cocaine with the intent to sell or to deliver is a Class B felony “if the amount
involved is point five (0.5) grams or more[.]” T.C.A. § 39-17-417(c)(1) (2010) (amended
2012, 2014). “A person is criminally responsible for the facilitation of a felony, if, knowing
that another intends to commit a specific felony, but without the intent required for criminal
responsibility . . . , the person knowingly furnishes substantial assistance in the commission
of the felony.” Id. § 39-11-403(a).
In the light most favorable to the State, the evidence reflects that the Defendant paid
the deposit for Ms. Johnson’s apartment and that the Defendant was inside Ms. Johnson’s
apartment when the crack cocaine was found. The drugs were individually packaged, and
Corporal Horne and Detective Summey testified that the packaging was indicative of intent
to sell or to deliver crack cocaine. Although the Defendant was inside the apartment while
the officers, Mr. Malone, and Ms. Johnson spoke outside the apartment, none of the officers
saw any lights or heard any noises inside the apartment. The deadbolt lock on the front door,
which was the only exterior door, was locked when the officers, Mr. Malone, and Ms.
Johnson entered the apartment for the search. In the recording, the Defendant told Mr.
Malone that he saw the police officers enter the apartment, and the officers testified that the
Defendant did not appear as though he had been sleeping.
After the crack cocaine was found and Detective Summey approached the Defendant,
the Defendant looked down, shook his head, looked toward Ms. Johnson, and shook his head
again. We note that although Mr. Malone claimed responsibility for the drugs and testified
that the drugs were only contained in a plastic bag, the drugs were found inside a sock
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containing the plastic bag. This shows that Mr. Malone had no knowledge about the sock
and implies that Mr. Malone might not have placed the drugs in the toilet tank. We also note
that Mr. Malone testified that the Defendant had driven him to Arkansas and that they had
returned earlier that day. The Defendant blamed Mr. Malone for their arrests in the
recording, but he told Mr. Malone that he would obtain counsel for Mr. Malone and pay any
fines and bond Mr. Malone incurred. The Defendant told Mr. Malone that he would do what
it took to get Mr. Malone out of jail and that Mr. Malone only had to “get [him] clear of this
s---.” The Defendant also told Mr. Malone to tell the police officers that Mr. Malone helped
Ms. Johnson move, that Mr. Malone had recently returned with “the s---,” that Mr. Malone
did not want to lose it, and that Mr. Malone placed the drugs inside the toilet tank. The
Defendant instructed Mr. Malone to tell the police that he did not know the Defendant was
inside the apartment. The Defendant admitted that he saw the police officers and that he
attempted to stall by allowing the officer to search his apartment. Although Mr. Malone
accepted responsibility for the crack cocaine and claimed the Defendant had no knowledge
the drugs were inside Ms. Johnson’s apartment, the Defendant’s statements in the recording
reflect otherwise. The jury’s verdict reflects that it discredited Mr. Malone’s testimony. See
Bland, 958 S.W.2d at 659. We conclude that the evidence is sufficient to support the
Defendant’s conviction for facilitation of possession with the intent to sell or to deliver
twenty-six grams ore more of cocaine. He is not entitled to relief on this basis.
The judgment of the trial court is affirmed.
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ROBERT H. MONTGOMERY, JR., JUDGE
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