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State v. Bush4/14/2004
02, 102, 59 S.W.2d 501, 501 (1933). In determining whether a defendant has been in possession of drugs or stolen property, this court has held that "possession means control." See Peters v. State, 521 S.W.2d 233, 235 (Tenn. Crim. App. 1974). Other jurisdictions have held that "possession" can be established simply by showing that the victim has a greater right to the property than the defendant. See State v. McColl, 813 A.2d 107, 127 (Conn. Ct. App. 2003); State v. Coburn, 556 P.2d 382, 387 (Kan. 1976); State v. Cutwright, 626 So. 2d 780, 784 (La. Ct. App. 1993); State v. White, 702 A.2d 1263, 1270 (Mary. App. 1997); People v. Needham, 155 N.W.2d 267, 270 (Mich. Ct. App. 1967); Gray v. State, 797 S.W.2d 157, 161 (Tx. Ct. App. 1990); see also State v. John Wayne Singleton, No. 1, Decatur County (Tenn. Crim. App. Sept. 2, 1987), app. denied (Tenn. Nov. 16, 1987) (noting in an armed robbery case that the cashier had a right of possession "superior" to that of the defendant).
In the present case, the state asked Mr. Lopez during direct examination if men came to "your house uninvited," and Mr. Lopez answered, "Yes." The state then continued to question Mr. Lopez about what happened in "your house." During the defense's cross-examination of Angel Lopez-Moralez, it referred to "your uncle's house" and at no time during any testimony did it challenge the inference that the house in question belonged to Mr. Lopez. Taken in the light most favorable to the state, a rational jury could conclude that Mr. Lopez had control of the house from which the defendant and his co-defendants took the stereo and CD. Although Mr. Lopez was not present in the bedroom when the items were taken, case law demonstrates that he still constructively possessed them. Moreover, despite the fact that Mr. Lopez was not the owner of the items, he obviously had a greater right to their possession than the defendant. Thus, the evidence is sufficient to show a "taking" from the person of Mr. Lopez.
As to the defendant's claim that the state failed to show that Mr. Lopez suffered serious bodily injury, Mr. Lopez acknowledged at trial that he was in "a great deal of pain." He testified that the pain lasted about three and one-half months and that he could not walk due to the gunshot for three months. Although no medical personnel testified about his injuries, the state introduced Mr. Lopez's hospital records into evidence. According to the records, a doctor treated Mr. Lopez for a four-centimeter scalp laceration and a gunshot wound that entered and exited his left thigh. The records show that Mr. Lopez complained of "much pain" in his left leg and that he received intravenous pain medication. He spent two days in the hospital, received a Lortab prescription for the pain, and was left with a scar on his leg.
In his brief, the defendant cites State v. Sims, 909 S.W.2d 46, 49 (Tenn. Crim. App. 1995), in which this court applied the ejusdem generis doctrine of statutory construction to explain that the "extreme physical pain" definition of serious bodily injury must be read as applying to the same class of injury as those causing a substantial risk of death, protracted unconsciousness, protracted or obvious disfigurement, or the protracted loss or substantial impairment of a bodily member, organ, or mental faculty. Id. at 50. The victim in Sims suffered a broken nose and a bruised cheekbone as the result of being hit in the face with a gun by the defendant during a robbery. Id. at 48. After observing that the victim had been given anti-anxiety medication but that no pain medication had been prescribed, this court concluded that the "pain commonly associated with a broken nose" was not "extreme enough to be in the same class as an i
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