Assigned on Briefs September 7, 2016
from the Criminal Court for Shelby County No. 14-04043 Glenn
Defendant, Anthony Miller, was indicted for possession with
intent to sell 0.5 grams or more of cocaine, a Class B
felony; possession with intent to deliver 0.5 grams or more
of cocaine, a Class B felony; possession with intent to sell
one-half ounce or more but less than ten pounds of marijuana,
a Class E felony; possession with intent to deliver one-half
ounce or more but less than ten pounds of marijuana, a Class
E felony; and possession of a firearm with intent to go armed
during the commission of a dangerous felony, a Class D
felony. See Tenn. Code Ann. §§ 39-17-417,
-1324(a). Prior to submission to the jury, the amount for the
cocaine possession charges was reduced to less than 0.5
grams, a Class C felony. See Tenn. Code Ann. §
39-17-417(c)(2)(A). Following a jury trial, the Defendant was
convicted as charged of the marijuana and unlawful firearm
possession charges and of the lesser-included offense of
simple possession, a Class A misdemeanor, with respect to the
cocaine possession charges. See Tenn. Code Ann.
§ 39-17-418. The trial court sentenced the Defendant to
eleven months and twenty-nine days for the misdemeanor
cocaine possession offenses, two years for the felony
marijuana possession offenses, and the mandatory minimum
three years for the unlawful firearm possession offense. The
trial court ordered all of the sentences to be served
concurrently for a total effective sentence of three years.
In this appeal as of right, the Defendant contends (1) that
the evidence was insufficient to sustain his conviction for
unlawful possession of a firearm; and (2) that the trial
court erred in instructing the jury on the applicable mental
state for the unlawful possession of a firearm offense.
Following our review, we conclude that the evidence was
sufficient to sustain the Defendant's conviction for
unlawful possession of a firearm. However, we also conclude
that the trial court committed plain error in instructing the
jury with respect to the unlawful firearm possession offense
that the Defendant could be found guilty if he acted
"either intentionally, knowingly, or recklessly."
As such, we remand this case for a new trial on the unlawful
possession of a firearm charge. Additionally, we hold that
the trial court failed to merge the Defendant's
convictions for simple possession of cocaine into one
conviction and his convictions for felony possession of
marijuana into one conviction. Accordingly, we remand this
case to the trial court for merger of those convictions and
entry of corrected judgment forms reflecting said merger.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Court Affirmed in Part; Reversed in Part; Case Remanded
E. Fitzgerald, Memphis, Tennessee, for the appellant, Anthony
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Charles Summers III, Assistant
District Attorney General, for the appellee, State of
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
KELLY THOMAS, JR., JUDGE
November 22, 2014, Memphis Police Department officers
executed a search warrant for a residence on Haywood Avenue.
Shortly before the search, one of the officers witnessed the
Defendant enter his car, which was parked in the home's
driveway, and drive away. The Defendant was quickly pulled
over for running a stop sign. The officer who stopped the
Defendant smelled a strong odor of marijuana coming from the
Defendant's car. The Defendant admitted to having
marijuana and produced a small bag containing marijuana from
his right pocket.
informed about the search warrant, the Defendant gave the
officers a key to the house. The officers and the Defendant
returned to the house where the officers used the key to
enter the house. There was no one else in the house at the
time it was searched. Outside the house, the officers found
video surveillance cameras. Inside the house, a surveillance
monitor was found. Testimony was presented at trial that it
was "very common" for drug dealers to utilize video
surveillance systems. Additionally, a box of .380 caliber
ammunition was found sitting out on a table in another
of the back bedrooms, the bed had a large headboard with
built-in cabinets. Inside the headboard's cabinets, the
officers found a "large red bag." The red bag
contained a large bag of what appeared to be marijuana and
two smaller bags of the same. On the same shelf as the red
bag was a large digital scale and a box of sandwich bags.
Police officers explained to the jury that sandwich bags were
often used to package drugs for sale. Also inside the
cabinet, officers found a jar that appeared to contain more
marijuana, a small plastic bag containing white powder, and
what appeared to be a marijuana grinder.
the bed was a dresser. A smaller digital scale was found on
top of the dresser. Inside "the top left drawer, "
the officers found $165 in small denominations. It was
explained at trial that keeping a large amount of small
denominations was typical "to [the] drug trade."
There was a small closet at the foot of the bed. On a top
shelf of the closet, officers found a shoebox containing two
handguns: a Lorcin .380 caliber and a Bryco Jennings .22
caliber. Both handguns were loaded. The handguns were not
tested for fingerprints, and the MPD officers testifying at
trial stated that they did not know who owned the guns.
Defendant's girlfriend also lived at the house, and the
utilities for the house were registered in her name. However,
the Defendant had the Haywood Avenue address listed on his
driver's license. Additionally, the officer found inside
the house the Defendant's work badge, paychecks, a debit
card in his name, an ADT Security Service bill for the house
addressed to the Defendant, and other miscellaneous mail
addressed to the Defendant.
forensic testing revealed the white powder to be .47 grams of
cocaine and the green leafy substance found inside the house
to be, in total, 395.22 grams of marijuana.
Defendant testified at trial that the house belonged to his
girlfriend and that he periodically stayed there. However,
the Defendant admitted that the marijuana belonged to him and
that he sold some of the marijuana. The Defendant also
admitted that ...