         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 21, 2005

            STATE OF TENNESSEE v. JOHN THOMAS BINGHAM

                  Direct Appeal from the Circuit Court for Bedford County
                               No. 15515 Lee Russell, Judge



                  No. M2005-00162-CCA-R3-CD - Filed September 22, 2005


The defendant, John Thomas Bingham, was convicted by jury of possession of contraband
(marijuana) in a penal institution, a Class C felony. The trial court sentenced the defendant to five
years six months for this conviction. The trial court ordered this sentence to be served consecutively
to a previously imposed sentence. On appeal, the defendant challenges the sufficiency of the
convicting evidence. Based upon our review, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA MCGEE
OGLE, JJ., joined.

Andrew Jackson Dearing, III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant,
John Thomas Bingham.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
W. Michael McCown, District Attorney General; and Michael D. Randles and Ann Filer, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

         The proof at trial established that the defendant was an inmate at the Bedford County Jail.
On December 17, 2003, after 9:00 p.m., Sergeant Robert Overstreet and other correctional officers,
conducted a search of three inmates, one of whom was the defendant. The search took place in the
jail’s “chow hall” as the inmates were leaving from an Alcoholics Anonymous (AA) meeting. The
defendant, wearing a jail-issued orange jacket, was the last inmate to be searched.

       As the officers began searching the defendant, they asked him to remove his jacket. While
Sergeant Overstreet searched the jacket, a pack of cigarettes fell out of the jacket onto the floor of
the chow hall. Simultaneously, the officers and the defendant reached for the cigarette pack, but the
defendant reached it first and quickly grabbed it off the floor. The defendant then attempted to flee
the area with the cigarette pack. While running away from the officers, the defendant removed a
cigarette and attempted to eat it. By this time, however, the officers tackled the defendant to the
floor and restrained him with handcuffs.

       After restraining the defendant, the officers took the cigarette pack from the defendant and
found two cigarettes in the pack. The officers also found a third cigarette laying under the defendant.
The handcuffed defendant also noticed the third cigarette and attempted to reach it with his mouth.
The cigarettes were confiscated and later submitted to the Tennessee Bureau of Investigation crime
laboratory for testing. The cigarettes tested positive for marijuana.

       According to the defendant’s testimony, he was set-up by another inmate, Bobby Heil. The
defendant stated that he and Heil had a problem in the past when Heil tried to take his fan and
extension cord. Heil’s attempted procurement of the defendant’s possessions caused an altercation.
Heil was then transferred to the jail’s main facility while the defendant remained in the jail’s annex
area. Later on, however, the defendant and Heil reconciled their differences and were on speaking
terms for about a month prior to December 17th.

         The evening of December 17th, the defendant was transported from the annex to the “new
jail” area in order to attend the AA meeting. As the defendant explained, a few minutes before the
AA meeting, Heil approached him, stuck a pack of cigarettes in his pocket and asked him to hold
it. After the AA meeting ended, the defendant observed correctional officers transporting most of
the inmates back to their cell blocks. The defendant noticed Heil, as he was being ushered out of the
meeting area, whisper something to one of the officers. At this time, the defendant checked the pack
of cigarettes and discovered three marijuana “joints” in the pack. Realizing he was in trouble and
going to be searched, the defendant stuck the cigarette pack up in the sleeve of his jacket. When the
pack of cigarettes fell out of his sleeve during the search, he grabbed it, took off, and tried to eat one
of the cigarettes. He was then tackled by the officers. On cross-examination, the defendant admitted
that typically the only reason an inmate would ask another inmate to hold an otherwise legal pack
of cigarettes was if there was something illegal inside. The defendant also admitted that he was
caught with the marijuana cigarettes in his possession.

       On appeal, the defendant contends that the evidence was insufficient to support his
conviction for possession of contraband in a penal facility. Specifically, the defendant argues that
the evidence was circumstantial and before he could be convicted of this offense based upon
circumstantial evidence alone “the facts and circumstances must be so strong and cogent as to
exclude every other reasonable hypotheses save the guilt of the defendant.”

     Our review begins with the well-established rule that once a jury finds a defendant guilty, his
or her presumption of innocence is removed and replaced with a presumption of guilt. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the
burden of demonstrating to this Court why the evidence will not support the jury’s verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). To meet this burden, the defendant must establish that no “rational trier of fact” could have


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found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); Tenn. R. App. P. 13(e). In
contrast, the jury’s verdict approved by the trial judge accredits the State’s witnesses and resolves
all conflicts in favor of the State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The State is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. Carruthers, 35 S.W.3d at 558; Tuggle, 639 S.W.2d at 914. Questions
concerning the credibility of the witnesses, conflicts in trial testimony, the weight and value to be
given the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and
not this Court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh
or re-evaluate the evidence. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002); Bland, 958 S.W.2d
at 659. Likewise, we do not replace the jury’s inferences drawn from the circumstantial evidence
with our own inferences. See State v. Elkins, 102 S.W.3d 581, 582 (Tenn. 2003); Reid, 91 S.W.3d
at 277.

       To convict the defendant, the State was required to prove that the defendant knowingly
possessed contraband such as marijuana while inside a penal institution where prisoners are
quartered or under custodial supervision. See Tenn. Code Ann. § 39-16-201(a)(2). A person “acts
knowingly with respect to the conduct or to circumstances surrounding the conduct when the person
is aware of the nature of the conduct or that the circumstances exist.” Id. § 39-11-302(b).

        Initially, we note that the guilt of the defendant as well as any fact required to be proved may
be established by direct evidence, by circumstantial evidence, or by a combination of both. See State
v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.Crim.App., 1999). In fact, a criminal offense may be
established exclusively by circumstantial evidence so long as the evidence excludes all other
reasonable theories except that of the defendant’s guilt. See State v. Crawford, 470 S.W.2d 610, 612
(1971). In addition, the weight of the circumstantial evidence is for the jury to determine and this
Court may not substitute the jury’s inferences drawn from the circumstantial evidence with our own
inferences. See Pruitt v. State, 460 S.W.2d 385, 391 (Tenn. Crim. App. 1970).

        Nonetheless, contrary to the defendant’s argument in brief, the defendant’s conviction was
not solely based upon “highly” circumstantial evidence. Circumstantial evidence means “evidence
based on inference and not on personal knowledge or observation.” Black’s Law Dictionary 595
(8th. ed. 2004). In the instant case, the proof at trial presented by eyewitness testimony and the
defendant’s own admissions established that the defendant was in possession of three cigarettes
containing marijuana while he was an inmate at the Bedford County Jail. When searched by
correctional officers, the defendant attempted to hide the pack of cigarettes in his jacket sleeve, but
the pack fell out. The defendant grabbed the pack of cigarettes and took off running. He then
opened the pack, removed a marijuana cigarette and attempted to eat it. After being restrained, the
defendant again tried to reach the cigarette with his mouth. Therefore, the direct evidence, via the
eyewitness testimony of the correctional officers and the defendant’s own admissions, clearly
established that the defendant was caught with marijuana cigarettes in his possession.




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        Moreover, the defendant’s knowledge of his possession of marijuana is typically proven by
circumstantial evidence and the inferences that can be reasonably drawn from that evidence. See
Hall v. State, 490 S.W.2d 495, 496 (Tenn. 1973). Again, the evidence at trial established that the
defendant tried to destroy the marijuana cigarettes by attempting to eat them. In addition, the
defendant admitted on cross-examination that he knew he was in possession of the marijuana
cigarettes prior to the search and attempted to hide then destroy the cigarettes because he did not
want to be caught with the cigarettes in his possession. Clearly, the evidence presented at trial
demonstrated the defendant’s knowing mental state. Therefore, based upon the direct and
circumstantial evidence presented, we conclude that the jury could reasonably find that the defendant
knowingly possessed contraband (marijuana) in a penal institution. Accordingly, the judgment of
conviction is affirmed.




                                                      ___________________________________
                                                      J.C. McLIN, JUDGE




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