State of Tennessee v. Travis Lindsey ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 9, 2016
STATE OF TENNESSEE v. TRAVIS LINDSEY
Appeal from the Circuit Court for Maury County
No. 22119 Stella Hargrove, Judge
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No. M2015-01954-CCA-R3-CD – Filed October 12, 2016
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The Defendant, Travis Lindsey, was convicted by a Maury County Circuit Court jury of
the sale of 0.5 gram or more of cocaine within 1000 feet of a school, a Class A felony,
and sale of 0.5 gram or more of cocaine, a Class B felony. See T.C.A. §§ 39-17-432
(2014) (school zone), 39-17-417(A)(3)(C)(1) (2010) (amended 2012, 2014) (sale of
cocaine). The trial court sentenced the Defendant to concurrent sentences of twenty years
for the sale of cocaine in a drug-free zone conviction and ten years for the sale of cocaine
conviction. The court also ordered concurrent service with an unrelated sentence in
federal court. On appeal, the Defendant contends that (1) the evidence is insufficient to
support his conviction for sale of cocaine in a drug-free zone, (2) the court erred by
allowing testimony relative to the Defendant‟s prior bad acts, and (3) the court erred by
admitting into evidence recorded statements in violation of the Confrontation Clause.
We affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed
ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL, P.J., and J. ROSS DYER, J., joined.
Michael Cox (on appeal) and L. Samuel Patterson (at trial), Columbia, Tennessee, for the
appellant, Travis Lindsey.
Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Mike Bottoms, District Attorney General; and Brent A. Cooper, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
This case relates to two controlled drug purchases conducted by the Columbia
Police Department. At the trial, Columbia Police Officer Brian Grey testified that in
April 2012, Kevin Odie1 approached the police with information related to purchasing
cocaine and that Mr. Odie arranged a meeting to purchase two grams of crack cocaine for
$100. Officer Grey stated that he installed a video camera in Mr. Odie‟s car. Officer
Grey said that he searched Mr. Odie and his car for cash and drugs before Mr. Odie left.
Officer Grey stated that when Mr. Odie returned from the meeting, Officer Grey retrieved
a video recording from the camera. Officer Grey identified the April 12, 2012 recording,
a portion of which was played for the jury.
Officer Grey testified that when Mr. Odie returned he gave the officers a bag
containing crack cocaine. Officer Grey said that he sent the bag to the Tennessee Bureau
of Investigation (TBI) laboratory for analysis. He stated that he met with Mr. Odie again
on April 26, that Mr. Odie‟s girlfriend accompanied him, and that Mr. Odie had received
a text message from a person Mr. Odie identified as the Defendant asking him to come to
the “Country Club,” an afterhours bar. Officer Grey said that later that day, Mr. Odie met
the officers at the police station after meeting the Defendant and that Mr. Odie gave him
a bag containing crack cocaine, which Officer Grey sent to the TBI for analysis. Officer
Grey said that based upon his experience, he thought each bag contained about two grams
of crack cocaine.
Officer Grey testified that he had worked daily for about eight and one-half years
in the area around Horace Porter School. He identified the school on an aerial map,
which was received as an exhibit. Officer Grey identified on the aerial map the location
of the April 12 transaction. Officer Grey stated that he used a computer program
provided by the City Engineer to calculate the distance between the sale location and the
school and that he also measured the distance by walking and using a measuring wheel.
Officer Grey said he calibrated the measuring wheel to ensure its accuracy and that the
distance between the approximate site of the sale and the school was 441 feet. Officer
Grey acknowledged that he stopped measuring about fifteen feet from the actual site of
the sale due to safety concerns.
On cross-examination, Officer Grey testified that Mr. Odie had pending charges
for selling drugs when he contacted the police and that as a result of his cooperation with
the police, Mr. Odie‟s bond was reduced on April 5 from $100,000 to $2,500. Officer
Grey agreed that Mr. Odie‟s bond was reduced in order for Mr. Odie to help the police.
Officer Grey agreed that an informant who testified at a trial generally received more
1
The record reflects two spellings of the informant‟s surname. For consistency, we use Odie.
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consideration than one who remained confidential. Officer Grey did not remember when
he first met Mr. Odie and said that he did not provide Mr. Odie names of people from
whom the police wanted Mr. Odie to purchase drugs. Officer Grey said that he asked Mr.
Odie to compose a list of people from whom Mr. Odie could purchase drugs, that Officer
Grey researched the individuals, and that Officer Grey looked for people who were
“bigger drug dealer[s]” than Mr. Odie.
Officer Grey testified that the April 12 meeting with Mr. Odie occurred near dusk
and that Mr. Odie contacted him about the meeting. Officer Grey said that Mr. Odie
drove his car to meet the Defendant. Officer Grey stated that he spent about ten minutes
with Mr. Odie and that Officer Grey searched Mr. Odie‟s car “pretty good” in that time.
Officer Grey said that he did not know in advance where Mr. Odie was going to meet the
Defendant and that although Officer Grey and Sergeant Ushery followed Mr. Odie‟s car,
they did not see the transaction between Mr. Odie and the Defendant. Officer Grey stated
that he was about 200 yards from Mr. Odie and that he did not have a clear line of vision.
Officer Grey said that although he placed an audio transmitter in Mr. Odie‟s car, the
device did not transmit audio after Mr. Odie left the car. Officer Grey agreed that several
people were visible and audible on the video recording. Officer Grey stated that he did
not obtain Mr. Odie‟s text messages with the Defendant because Mr. Odie used a prepaid
cell phone and because Mr. Odie changed telephone numbers. Officer Grey said that the
police department did not provide Mr. Odie‟s cell phone. Officer Grey said that the
police utilized a tool to attempt to trace the telephone number Mr. Odie identified as
belonging to the Defendant. Officer Grey acknowledged that he could have obtained a
subpoena for the telephone company‟s records related to the number but said that he
thought the number belonged to a prepaid cell phone. Officer Grey said that although
Mr. Odie dictated a license plate number for a Saturn vehicle, the officers were unable to
locate title records for the number.
Officer Grey testified that on April 26, Mr. Odie told Officer Grey that he had
arranged to purchase two grams of crack cocaine for $100 from the Defendant and that
Mr. Odie traveled to the purchase location in his girlfriend‟s car. Officer Grey did not
remember whether the Defendant or Mr. Odie sent the text message about meeting at
Country Club. Officer Grey agreed that he did not review other text messages on Mr.
Odie‟s phone. Officer Grey was unsure how long he met with Mr. Odie and his girlfriend
on April 26. Officer Grey said that he searched Mr. Odie‟s shoes on April 26 but that he
did not remember searching Mr. Odie‟s shoes on April 12. Officer Grey stated that he
and another officer searched Mr. Odie‟s girlfriend‟s car and that Officer Grey searched
Mr. Odie‟s girlfriend‟s purse. Officer Grey said that his undercover police vehicle was
not equipped with a video camera and that he did not record the searches of Mr. Odie, his
girlfriend, or their cars.
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Officer Grey testified that on April 26, he and another officer followed Mr. Odie
and his girlfriend and parked behind a building to listen to the transaction. Officer Grey
agreed that the video recording of the transaction showed Mr. Odie walk to a building
with a metal carport and that several black men sat underneath the carport, including a
man wearing a purple shirt and a purple hat. Officer Grey did not remember seeing
anything in the man‟s hands, and Officer Grey could not determine if the man was
Darnell Sharp. Officer Grey said that Mr. Odie wore the video camera on his wrist.
Officer Grey testified that he had not obtained the legal description of the school
property and that he had a mapping system on his computer which marked property lines
with a red outline. Officer Grey acknowledged that the City Engineer explained the
mapping system to him six or seven years before the trial and that he did not consult with
the City Engineer in connection with this case. Officer Grey said that the property line of
the school was “common knowledge” because it was marked by a fence.
Officer Grey testified that on the video recording, Mr. Odie spoke to several
individuals and that not all of their faces were visible on the recording. Relative to the
April 12 transaction, Officer Grey said that he was unable to follow Mr. Odie‟s car
closely because the undercover narcotics cars were known in the community. Officer
Grey said that Mr. Odie called them en route and told them “Travis” had called and told
him to meet at “the shop on 10th.”
Kevin Odie testified that he had felony drug convictions for selling cocaine, that in
April 2012, he had a pending probation violation and had been indicted on new drug
charges, and that he offered to help the police with the hope of avoiding prison. Mr. Odie
said that if his probation were revoked, he would serve “twenty-something” years. Mr.
Odie said that he purchased drugs from more than forty people while helping the police
department. Mr. Odie stated that his life involved significant criminal activities but that
since April 2012, he had changed and had moved away from Columbia to live with
family.
Mr. Odie testified that when he worked with the police department, he chose the
people from whom he bought drugs. He said that the April 12 transaction was his first
time helping the police. He agreed that the reduction in his bond the weekend before the
April 12 transaction was part of the arrangement with the police department. He stated
that after his release, he was required to stay in contact with the police, that the police
were able to search him at any time, and that he was required to undergo drug testing if
asked. He said that after his release from jail, he did not consider himself to be a free
man.
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Mr. Odie testified that on April 12, he met Officer Grey, that he had spoken with
the Defendant by telephone or text message earlier in the day, and that he had arranged to
meet the Defendant. Mr. Odie said that he was supposed to meet the Defendant in
College Hill in order to purchase one or two grams of cocaine for $100. Mr. Odie stated
that Officer Grey would not meet with him unless he had already arranged a transaction.
Mr. Odie said that when he met Officer Grey, officers searched Mr. Odie‟s car and
reviewed what he was supposed to do. Mr. Odie stated that his then-girlfriend
accompanied him, although the girlfriend did not participate in the transaction. After
reviewing the video recording, though, he said the girlfriend did not accompany him that
day. Mr. Odie said that he never took drugs with him to the transactions. Mr. Odie
denied representing that his own drugs had been sold to him by another person. Mr. Odie
said that if he had tried to trick the police, he would have gone to prison. Mr. Odie stated
that the police provided an audiovisual recording device he wore on his left wrist, that he
was supposed to try to get a good recording of the transaction, and that he did his best to
record it. Mr. Odie said that they also placed an audio transmitter under one of his car‟s
seats. Mr. Odie stated that Officer Grey followed his car in Officer Grey‟s undercover
police vehicle.
The video recording of the April 12 transaction was received as an exhibit and
played for the jury. The recording showed Officer Grey, who said that they were
conducting a “CI sale” from the Defendant. Officer Grey spoke briefly with Mr. Odie.
The recording showed Mr. Odie‟s driving to a location with a house and a carport, Mr.
Odie‟s speaking with a group of older people at the carport, and Mr. Odie‟s leaving the
group and talking with a man wearing a red shirt, a baseball cap, and a silver chain and
cross. The man had a prominent gold tooth. Mr. Odie spoke with the man very briefly,
walked back to his car, and drove directly to a different location, where he met with the
officers. Mr. Odie described the Defendant‟s car to the officers as a brown Saturn with
tinted windows and “rims.”
Mr. Odie testified that on April 12, he met the Defendant at the Defendant‟s
father‟s shop, which was “right up the street” from Horace Porter School. Mr. Odie
acknowledged that generally, many people were at the shop. Mr. Odie said that when he
arrived at the shop, he waited for about one and one-half minutes for the Defendant to
arrive and that he exited the car to speak to some of the people while he waited. Mr.
Odie identified the man wearing red as the Defendant. Mr. Odie stated that he and the
Defendant walked to Mr. Odie‟s car, Mr. Odie gave the Defendant cash, and the
Defendant gave him cocaine. Mr. Odie acknowledged that the transaction lasted less
than thirty seconds and that drug deals generally took place rapidly to avoid police
attention.
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Mr. Odie testified that in the recording, when he said “that „MF‟ was right,” he
referred to the weight of the drugs and that he told the Defendant he would return to buy
more cocaine. Mr. Odie agreed that he led the Defendant to believe Mr. Odie was selling
the cocaine. Mr. Odie identified three photographs of the Defendant, which were taken
from the recording. Mr. Odie acknowledged that the recording did not show the money
he gave the Defendant. Mr. Odie said that the recording showed the Defendant‟s hands
holding the drugs.
Mr. Odie testified that when he returned to his car, he called Officer Grey and
asked where he should go. Mr. Odie said that he did not stop between leaving the shop
and meeting Officer Grey. Mr. Odie stated that he kept the cocaine in his lap, that it was
packaged in a small bag, and that he did not remove or add anything to the bag. Mr. Odie
said that based upon experience, the amount of cocaine in the bag appeared to be about
two grams.
Mr. Odie testified that on April 26, he met Officer Grey and that the officers
searched him. Mr. Odie said that he had arranged to buy two grams of cocaine from the
Defendant “downtown” but that he did not remember the agreed-upon price. Mr. Odie
said that his girlfriend accompanied him on this occasion.
The April 26 video recording was received as an exhibit and played for the jury.
In the recording, Officer Grey said that Mr. Odie was going to buy one or two grams of
crack cocaine for $100 from the Defendant. When Mr. Odie entered a white SUV, a
female voice was audible. Mr. Odie commented that he was going to “get his a--.” Mr.
Odie drove past the same set of buildings twice before parking near a large building with
a carport. Mr. Odie left the car and spoke to a man wearing purple. When the man in
purple asked why Mr. Odie was there, Mr. Odie stated that he was waiting to meet
“Bert.” The man in purple said, “He‟s wide open,” confirmed he was talking about Bert,
and said Bert was “moving too fast.” Mr. Odie said that this was the reason he hated
meeting Bert in “places like this,” and the man in purple commented that he was glad
Bert was doing well but “[y]ou gotta put that money away.” Mr. Odie walked away from
the man in purple and got in the backseat of a brown SUV. Mr. Odie spoke briefly with
the driver and told him, “It‟s booming up there in Lebanon.” The driver said, “It‟s two. I
just got it off the board.” Mr. Odie exited the brown SUV and returned to the white
SUV. During the drive to meet the officers, Mr. Odie commented to the woman, “I can
make a career out of this, bring the whole g------ Columbia down.” When Mr. Odie met
with the officers, he noted that the Defendant‟s two daughters had been in the brown
SUV during the sale.
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Mr. Odie testified that in the recording, when he said he was “going to get his a--,”
he referred to another person from whom he was going to purchase drugs. Mr. Odie
stated that he met the Defendant at Country Club at the Defendant‟s request.
Mr. Odie testified that when he arrived, several people were standing under a
carport and that the Defendant was not present. Mr. Odie identified the man wearing
purple as Darnell Sharp and said that although Mr. Odie spoke to Mr. Sharp, Mr. Odie
did not see anything in Mr. Sharp‟s hands or purchase anything from him. When asked
whether Mr. Sharp had something in his hand, Mr. Odie said that he thought Mr. Sharp
had a paper towel in his hand. Mr. Odie said that Bert referred to the Defendant. Mr.
Odie said that Mr. Sharp‟s stating the Defendant was “too wide open” meant the
Defendant was selling drugs to anyone who wanted them.
Mr. Odie testified that the Defendant arrived in a car, that Mr. Odie got in the
backseat of the car, that the Defendant said he had just weighed the cocaine, and that the
Defendant said it weighed two grams. Mr. Odie noted that the Defendant‟s stating he got
the cocaine “off the board” meant measuring it with scales. Mr. Odie said that the
Defendant‟s two minor daughters were in the car. Mr. Odie identified the Defendant in
three still photographs taken from the recording, which were received as exhibits.
Mr. Odie testified that he returned to his car, called the officers, and drove to meet
them. He said that he did not stop on the way, kept the cocaine in his lap, and did not add
or remove anything from the bag. Mr. Odie said that he told the Defendant many people
were buying drugs in Lebanon and that he led the Defendant to believe Mr. Odie intended
to resell the cocaine. Mr. Odie identified the bag of cocaine he purchased and said that it
appeared to weigh slightly less than two grams. Mr. Odie denied purchasing drugs from
anyone other than the Defendant on April 12 and April 26.
On cross-examination, Mr. Odie testified that in April 2012, he had been arrested
for sale of marijuana and cocaine in a drug-free zone and for sale of cocaine. Mr. Odie
said that he was arrested in January 2012 and was in jail until his release in April. Mr.
Odie agreed that his drug charges were pending at the time of the trial. When asked
whether he hoped he would receive a reduced sentence or probation in exchange for his
work for the police, Mr. Odie said he did not know because nothing had been promised.
Mr. Odie denied that he or his attorney contacted the District Attorney‟s Office to
advise them he was willing to help the police. Mr. Odie stated that he agreed to work for
the Drug Task Force in exchange for reducing his bond. Mr. Odie said that he did not tell
the police about specific people from whom he intended to purchase drugs. Mr. Odie
stated that if Officer Grey testified about making or reviewing a list of people with Mr.
Odie, Officer Grey was mistaken. Mr. Odie said, though, that the police gave him a list
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of names and asked whether Mr. Odie could purchase drugs from any of those people.
When asked whether the Defendant was a person from whom Mr. Odie claimed he could
purchase drugs, Mr. Odie said, “His name wasn‟t on that list.”
Mr. Odie testified that although he had been paid for some of his purchases, he
was not paid for his work on the Defendant‟s case and had not been paid to testify at the
trial. Mr. Odie said that he was on probation for driving on a suspended license. He
stated that he was incarcerated between 1997 and 2007, that he was charged with sale of
cocaine about one and one-half months after his release, that he was placed on probation,
and that he was convicted in 2009 of misdemeanor sale of marijuana, for which he was
incarcerated. Mr. Odie stated that before he testified, he watched the video recordings in
order to refresh his memory of events.
Mr. Odie testified relative to the April 12 sale that he used his personal cell phone
to send a text message to the Defendant, that he had not saved the text messages, and that
he did not give Officer Grey a copy of the text messages because Officer Grey was
present for most of the text message conversation. Mr. Odie recalled showing Officer
Grey the messages. Mr. Odie stated that Officer Grey met with him for five or ten
minutes before the transaction, that Officer Grey searched Mr. Odie‟s car by pulling up
the floor mats, looking under the seats, and pulling the seats forward, and that Officer
Grey searched Mr. Odie. Mr. Odie agreed that Officer Grey put a recording device in
Mr. Odie‟s car and gave Mr. Odie one to wear.
Mr. Odie testified that when he left Officer Grey, he did not know the exact
location where he would meet the Defendant. Mr. Odie said that the Defendant chose the
location and that he thought the Defendant sent a text message with the location. Mr.
Odie said later, though, that he called the Defendant after he left Officer Grey and that the
Defendant told him to meet at the Defendant‟s father‟s shop. Mr. Odie acknowledged
that the recording did not reflect a telephone call and that Officer Grey commented in the
recording he did not know where Mr. Odie was going to meet the Defendant. Mr. Odie
stated that after the Defendant sent a text message, Mr. Odie sent a text message
containing the location to Officer Grey.
Mr. Odie testified that eight or nine people were at the Defendant‟s father‟s shop
and that Mr. Odie knew one man there. Mr. Odie said that the Defendant was not present
when he arrived at the shop. Mr. Odie stated that he had known the Defendant all his
life. Mr. Odie said that in 2012, he did not live in Columbia and did not “hang out” with
the Defendant.
Relative to the April 26 transaction, Mr. Odie stated that he drove his girlfriend‟s
car, that he met Officer Grey and Sergeant Ushery, that they searched Mr. Odie, Mr.
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Odie‟s girlfriend, and her purse, and that they thoroughly searched the car‟s passenger
compartment and trunk. Mr. Odie thought the search lasted about ten minutes and agreed
the officers searched longer than they had on April 12. Mr. Odie said that after leaving
the officers, he sent the Defendant a text message when he arrived downtown and that the
Defendant responded with instructions to come to Country Club. Mr. Odie stated that he
did not show Officer Grey the text message because Officer Grey was following in a
separate car.
Mr. Odie testified that when he arrived at Country Club, his girlfriend remained in
the car. Mr. Odie said that the Defendant was not present and that Mr. Odie sent the
Defendant a text message. Mr. Odie said that he had to circle the downtown area twice
because the Defendant had not yet told him where to go. Mr. Odie said that Officer Grey
only knew that they were going to 8th Street and Woodland. Mr. Odie stated he told
Officer Grey that the Defendant had sent a text message stating the Defendant was on his
way downtown and asking Mr. Odie to meet him downtown.
Mr. Odie testified that Mr. Sharp appeared to be reaching toward his pocket in the
recording. Mr. Odie agreed that he did not want to go back to prison but denied he would
“do whatever” to stay out of jail.
On redirect examination, Mr. Odie testified that although he and the prosecutor
met to review the video recordings, he and the prosecutor never discussed the content of
the recordings, and the prosecutor did not otherwise prepare him for the trial. Mr. Odie
said that on April 12, he knew where the Defendant‟s father‟s shop was located because
he had known the Defendant for a long time. Mr. Odie said that the Defendant‟s family
members, including the Defendant‟s mother, were present at the shop. Mr. Odie stated
that other than what was captured by the recording, he did not interact with the
Defendant. Mr. Odie did not remember what he did on April 12 while he waited for the
Defendant to arrive. Mr. Odie said that the April 26 recording showed him passing
Country Club twice as he circled the block. He stated that he did not know Mr. Sharp
would be at Country Club, that Mr. Sharp did not sell cocaine, and that Mr. Sharp had
smoked cocaine previously. Mr. Odie said that it did not occur to him while he was at
Country Club that he could purchase cocaine from Mr. Sharp. Mr. Odie said that had Mr.
Sharp offered to sell cocaine, it would have been unusual and would have caused Mr.
Odie to suspect the cocaine was fake.
Mr. Odie testified that Mr. Sharp‟s comment about putting away money related to
the conversation they were having and that Mr. Sharp referred to the Defendant in
multiple comments. Mr. Odie said that he did not have money in view when he talked to
Mr. Sharp and that Mr. Odie did not think Mr. Sharp was telling him to put away money.
Mr. Odie stated that he entered the Defendant‟s car to purchase crack cocaine. Mr. Odie
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said that someone wearing yellow was in the backseat when he got into the Defendant‟s
SUV. A photograph taken from the video recording showed the person in yellow. Mr.
Odie said that his work with the police had led to more than forty indictments and that it
had caused Mr. Odie problems.
TBI Special Agent Brent Trotter, an expert in controlled substance identification,
analyzed the substances in this case. Relative to the April 12 transaction, Agent Trotter
testified that the substance weighed 2.13 grams and contained cocaine base. Relative to
the April 26 transaction, Agent Trotter stated that the substance weighed 1.74 grams and
contained cocaine base.
The parties stipulated that Horace Porter School was a school. In a jury-out
hearing, the trial court noted that the Defendant had a gold tooth, and the Defendant
showed the jury his teeth.
Upon this evidence, the Defendant was convicted of the sale of 0.5 gram or more
of cocaine within 1000 feet of a school and of 0.5 gram or more of cocaine. The trial
court sentenced the Defendant to an effective twenty-year sentence. This appeal
followed.
I
Sufficiency of the Evidence
The Defendant contends that the evidence is insufficient to support his sale of 0.5
gram or more of cocaine within 1000 feet of a school conviction, arguing that the State
did not establish the location of the sale or the location of Horace Porter School beyond a
reasonable doubt. The State responds that sufficient evidence established both locations.
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 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).
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“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 sell a controlled substance. T.C.A. § 39-17-417(a)(3). The sale of
cocaine is a Class B felony “if the amount involved is point five (.5) grams or more[.]”
T.C.A. § 39-17-417(c)(1) (2010) (amended 2012, 2014). Tennessee Code Annotated
section 39-17-432(b)(1) states, “A violation of § 39-17-417 . . . that occurs . . . within
one thousand feet (1,000′) of the real property of [a school] shall be punished one (1)
classification higher than is provided in § 39-17-417(b)-(i) for such violation.”
In the light most favorable to the State, the record reflects that the Defendant met
Mr. Odie on April 12, 2012, at the Defendant‟s father‟s shop. Mr. Odie testified that he
gave the Defendant $100 and that the Defendant gave him a small plastic bag containing
cocaine. Officer Grey stated that Mr. Odie gave him a small bag of cocaine after meeting
the Defendant. Agent Trotter said that the substance in the bag contained 2.13 grams of
cocaine base. The video recording showed the Defendant‟s face, including a distinctive
gold tooth. Officer Grey testified that he identified the location of the transaction based
upon the video recording. Officer Grey had worked in the area for eight years and
recognized the address of the Defendant‟s father‟s shop. Officer Grey stated that he
measured the distance between the fence of Horace Porter School and the location of the
transaction and that the distance was 441 feet. Any conflicts in the evidence were
resolved by the jury in favor of the State. The evidence is sufficient.
Relative to the location of the school‟s property line, Officer Grey did not obtain
the deed for the property. However, Officer Grey testified that he used a computer
program provided by the City Engineer to outline the property line of the school, that the
school property was surrounded by a fence, and that it was common knowledge the
school property began at the fence. Officer Grey‟s calibrated measuring wheel measured
the distance between the school and the approximate location of the transaction as 441
feet, and Officer Grey acknowledged that he stopped measuring about fifteen feet from
the actual site of the sale. In any event, the April 12 sale occurred approximately 456 feet
from the school‟s fence line, well within the 1000 feet required by the statute. The
Defendant is not entitled to relief on this basis.
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II
Other Bad Act Evidence
The Defendant contends that the trial court erred by allowing Mr. Odie to testify
about the meaning of a portion of the April 26 video recording in which Darnell Sharp
commented that the Defendant was “wide open.” The Defendant argues that the
statement constituted evidence of a bad act and should have been excluded under
Tennessee Rule of Evidence 404(b). The State responds that the Defendant has waived
consideration of the issue by failing to take reasonable action at the trial to prevent any
error. Alternatively, the State argues that the Defendant objected at the trial on the basis
of the Confrontation Clause and cannot argue for the first time on appeal the evidence
should have been excluded pursuant to the rules of evidence.
Tennessee Rule of Evidence 404(b) prohibits the admission of evidence related to
other crimes, wrongs, or acts offered to show a character trait in order to establish that a
defendant acted in conformity with the trait. Tenn. R. Evid. 404(b). Such evidence,
though, “may . . . be admissible for other purposes,” including, but not limited to,
establishing identity, motive, common scheme or plan, intent, or absence of mistake. Id.;
see State v. McCary, 119 S.W.3d 226, 243 (Tenn. Crim. App. 2003). Before a trial court
determines the admissibility of such evidence,
(1) The court upon request must hold a hearing outside the jury‟s presence;
(2) The court must determine that a material issue exists other than conduct
conforming with a character trait and must upon request state on the record
the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear
and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.
Tenn. R. Evid. 404(b)(1)-(4). The standard of review is an abuse of discretion, provided
a trial court substantially complies with the procedural requirements. State v. DuBose,
953 S.W.2d 649, 652 (Tenn. 1997); see State v. Electroplating, Inc., 990 S.W.2d 211
(Tenn. Crim. App. 1998).
The record reflects that trial counsel objected to Mr. Odie‟s testimony relative to
Mr. Sharp‟s saying the Defendant was “wide open” but that the basis for the objection
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was speculation about Mr. Sharp‟s mental state. The prosecutor agreed to move on from
the questioning. During a jury-out hearing, the trial court cautioned the prosecutor for
agreeing to move on before the court had the opportunity to rule on the objection. At that
time, counsel commented that he could not cross-examine Mr. Sharp. The court clarified
that it was referring to Mr. Odie‟s interpreting Mr. Sharp‟s words, and counsel reiterated
that Mr. Odie would have been speculating about Mr. Sharp‟s state of mind.
In the motion for a new trial, trial counsel argued that the trial court erred by
allowing the portion of the video recording documenting the conversation between Mr.
Odie and Mr. Sharp to be played for the jury. Counsel did not raise as an issue Mr.
Odie‟s interpreting the meaning of “wide open.” At the motion for a new trial hearing,
counsel argued that it was prejudicial to allow the recording because Mr. Sharp did not
testify at the trial and because Mr. Sharp referred to the Defendant‟s “prior drug dealing
activity.” Even if counsel‟s objection to Mr. Sharp‟s characterization of the Defendant as
“wide open” were an attempt to raise a Rule 404(b) issue, counsel did not request a jury-
out hearing during the trial relative to Mr. Odie‟s defining “wide open,” and as a result,
the record does not reflect any consideration of this issue or findings by the trial court.
Because the record is undeveloped as to any potential Rule 404(b) issue, the
Defendant failed to take reasonable action to prevent any error, and the issue is waived.
See T.R.A.P. 36(a). The Defendant is not entitled to relief on this basis.
III
Confrontation Clause Violation
The Defendant contends that Darnell Sharp‟s statements on the video recording
violated the Confrontation Clause because Mr. Sharp was not presented as a witness, the
statements were elicited in order to gather evidence against the Defendant, and no
exception to the rule against hearsay applied. The State responds that the Confrontation
Clause was not violated because the statement was non-testimonial.
The Confrontation Clause provides a criminal defendant the rights to confront and
cross-examine witnesses. See U.S. Const. amends. VI, XIV; Tenn. Const. art. I, § 9;
State v. Williams, 913 S.W.2d 462, 465 (Tenn. 1996). In Crawford v. Washington, 541
U.S. 36, 59 (2004), the Supreme Court concluded that the Confrontation Clause permits
the admission of “[t]estimonial statements of witnesses absent from trial . . . only where
the declarant is unavailable, and only where the defendant has had a prior opportunity to
cross-examine.” A statement is testimonial when “made under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial[.]” Id. at 51-52 (internal quotation marks and citation
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omitted); see Davis v. Washington, 547 U.S. 813, 822 (2006). In order for a testimonial
statement to be admissible, the declarant must be unavailable to testify, and the defendant
must have had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at
53-55; see Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009). However, the
Confrontation Clause is not implicated when testimonial statements are not used to show
the truth of the matter asserted. Crawford, 541 U.S. at 59 n.9.
As a preliminary matter, we note that trial counsel objected to various statements
from the video recording but did not fully articulate an objection on confrontation
grounds. The first objection occurred during Mr. Odie‟s direct examination. The
prosecutor asked Mr. Odie what Mr. Sharp meant by the phrase “wide open.” The basis
for counsel‟s objection was speculation. During a jury-out hearing, the trial court
cautioned the prosecutor for agreeing to move on from the line of questioning before the
court had the opportunity to rule on the objection, and counsel commented that he could
not cross-examine Mr. Sharp. The court clarified that it was referring to Mr. Odie‟s
interpreting Mr. Sharp‟s words, and counsel reiterated that Mr. Odie would have been
speculating about Mr. Sharp‟s state of mind. No further objections were lodged relative
to Mr. Sharp‟s statement.
On cross-examination, counsel asked Mr. Odie questions about who commented
that the Defendant needed to “put that money back.” Mr. Odie said that Mr. Sharp made
the comment. On redirect examination, the prosecutor asked Mr. Odie who he and Mr.
Sharp discussed, and Mr. Odie said the Defendant. The prosecutor asked Mr. Odie what
the Defendant‟s nickname was in the video, and counsel objected. Counsel stated that he
did not know whether Mr. Odie or Mr. Sharp referred to the Defendant as “Bert” and that
he could not cross-examine Mr. Sharp. The court said, “Well, we heard it. Ask him if
that‟s what we heard out of him.” Counsel requested a jury-out hearing, but the court
only permitted a sidebar conference, which is not contained in the transcript. Afterward,
the prosecutor resumed questioning and laid a foundation as to the Defendant‟s nickname
based upon the conversation between Mr. Odie and Mr. Sharp. Later, the prosecutor
asked Mr. Odie to whom Mr. Sharp referred when he said that someone needed to “put
that money away.” Counsel objected on the basis of hearsay and speculation about Mr.
Sharp‟s state of mind. The court overruled the objection, stating that it would allow Mr.
Odie to give his opinion as to who he thought was the subject of the conversation. No
further objections were lodged about the video recording.
During closing argument, the prosecutor mentioned that much time was spent
discussing the second video recording and the phrase “he should put that money away.”
When discussing the April 26 transaction, the prosecutor said that although counsel had
focused on the phrase “[he] needs to put that money [away],” the jury should listen to the
phrase in the context of the conversation, and that the conversation consisted of Mr. Odie
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and Mr. Sharp discussing the Defendant‟s “running wide open.” The prosecutor stated,
“Mr. Odie told you what that meant. That meant that he‟s basically out there selling dope
to anybody that will buy it.”
In the motion for a new trial, counsel argued that “it was error for the court to
allow in a portion of the audio recording” between Mr. Odie and Mr. Sharp, but did not
state the legal basis for the argument. At the motion for a new trial hearing, counsel
argued that it was prejudicial to allow the recording because Mr. Sharp did not testify and
because Mr. Sharp referred to “prior drug dealing activity.” Counsel made no reference
to the Confrontation Clause.
Although we interpret counsel‟s remarks as an attempt to raise a violation of the
Defendant‟s confrontation rights, the record does not reflect further argument by the
parties or findings by the trial court relative to a confrontation violation. As a result, the
issue was not fully litigated in the trial court and is waived for purposes of appellate
review. See T.R.A.P. 36(a) (stating that this court may not act in contravention of the
trier of fact, and that relief is not required for any party who fails to take reasonable
action to prevent an error). The Defendant is not entitled to relief on this basis.
We note, however, that Mr. Sharp‟s statements were irrelevant relative to whether
the Defendant sold cocaine to Mr. Odie and should have been excluded on this basis. See
Tenn. R. Evid. 401, 402. The statements do not have “any tendency to make the
existence of a fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Tenn. R. Evid. 401. Moreover,
the statements implied the Defendant was a known drug dealer, which was impermissible
propensity evidence showing that the Defendant was more likely to have sold cocaine to
Mr. Odie because he was a drug dealer. Evidence of a character trait is not admissible to
prove a defendant‟s propensity to act in conformity with that trait. Tenn. R. Evid. 404(a).
The audio recording containing Mr. Sharp‟s statements to Mr. Odie should have been
redacted.
However, the error affords the Defendant no relief because the evidence of his
guilt is overwhelming. Officer Grey testified that on April 26, he searched Mr. Odie, Mr.
Odie‟s girlfriend, and her car and that after meeting with the Defendant, Mr. Odie
returned with a bag of a white substance later determined to be 1.78 grams of cocaine
base. The video recording showed Mr. Odie‟s entering a brown SUV and speaking
briefly with the Defendant about two grams that were “fresh off the board” before
returning to the officers‟ location. Mr. Odie testified about the circumstances of the
transaction and identified the Defendant in the recording.
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In consideration of the foregoing and the record as a whole, we affirm the
judgments of the trial court.
_____________________________ __
ROBERT H. MONTGOMERY, JR., JUDGE
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