State of Tennessee v. Alejandro Neave Vasquez and Nazario Araguz

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville May 15, 2012

STATE OF TENNESSEE v. ALEJANDRO NEAVE VASQUEZ

and NAZARIO ARAGUZ

Appeal from the Criminal Court for Davidson County

No. 2009-B-1141 Steve Dozier, Judge

No. M2010-02538-CCA-R3-CD - Filed November 28, 2012

A Davidson County jury convicted appellants, Alejandro Neave Vasquez and Nazario

Araguz, of conspiracy to deliver 300 grams or more of cocaine in a drug-free school zone and

possession with intent to deliver 300 grams or more of cocaine in a drug-free school zone.

The trial court sentenced appellant Vasquez to an effective twenty-year sentence and

sentenced appellant Araguz to an effective seventeen-year sentence. On appeal, both

appellants argue that: (1) the trial court erred in denying their motions to suppress; (2) the

trial court erred in admitting evidence regarding money recovered by law enforcement; (3)

the evidence was insufficient to support their convictions; and (4) the trial court erred in

denying appellants’ requests for a special jury instruction and in granting the State’s request

for a special jury instruction. After reviewing the record, the parties’ briefs, and applicable

law, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and

N ORMA M CG EE O GLE, JJ., joined.

James O. Martin, III (on appeal); Richard McGee (at trial), Nashville, Tennessee, for the

appellant, Alejandro Neave Vasquez.

William E. Griffith (on appeal); Robert P. Ballinger (at trial), Nashville, Tennessee, for the

appellant, Nazario Araguz.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; and John Zimmerman

and Rachel Thomas, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

I. Facts and Procedural History

A Davidson County grand jury indicted each appellant for one count of conspiracy to

deliver 300 grams or more of cocaine in a drug-free school zone and one count of possession

with intent to deliver 300 grams or more of cocaine in a drug-free school zone. Appellants

filed motions to suppress the cocaine and money that law enforcement officers found when

they stopped a vehicle in which appellant Araguz was driving and appellant Vasquez was a

passenger. The trial court denied the motions to suppress, and appellants were convicted as

charged at trial. The facts were set forth at the suppression hearing and at trial.

A. Suppression Hearing

Detective John Simonik with the 20th Judicial District Drug Task Force testified that

on February 18, 2009, a confidential informant advised him of a potential drug transaction.

Detective Simonik had used the informant in previous investigations. He said the

information provided by this informant in the previous investigations produced evidence of

criminal activities and led to the recovery of narcotics, the seizure of weapons, and

convictions of those parties involved.

Regarding this case, the informant told Detective Simonik he could arrange for an

unknown Hispanic male to deliver to him a kilogram (“kilo”) of cocaine. The informant had

been talking to an unknown black male subject who arranged for the Hispanic male to bring

the kilogram of cocaine to 528 Norton Avenue. Detective Simonik told the informant to

go look at this kilo of cocaine and cook a piece of [it] up into crack cocaine

and tell them that it wasn’t coming back good, that it wasn’t producing the

right amount of cocaine and then tell him that he didn’t want . . . the kilo of

cocaine because of this reason.

Detective Simonik explained that the plan was for the informant to send the cocaine back so

law enforcement could track it and find the “stash house.”

Before the transaction, officers placed a recording device on the informant, searched

the informant for narcotics and contraband, and confiscated the informant’s “personal

money.” The officers were at a remote location, and the recording device allowed them to

listen to the informant’s communications while at the Norton Avenue home. Detective

Simonik stated that the informant arrived at the home on Norton Avenue and went inside.

A white Volkswagen Jetta, which was registered to appellant Araguz, drove up to the home,

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and two unknown Hispanic males exited the vehicle. Detective Simonik did not see the two

men enter the home. However, the informant told him they entered and described them to

Detective Simonik. The recording device captured the informant’s asking the men about the

prices of cocaine.

The State played the audio recording from the transaction in open court. Detective

Simonik testified that he recognized the informant’s voice on the recording. He said he heard

the men open the package and heard the informant cook the cocaine in a microwave. After

cooking the cocaine, the informant told the men the cocaine “cooked up real soft,” just as

Detective Simonik had directed him. The informant also told the men the cocaine did not

produce the correct weight of crack cocaine, which indicated that it was not pure. The

informant asked the men to lower the original price for the kilo, which was $32,500, to

$30,000. One of the men told the informant that “if the [informant] could get something

going on, they would cut the [informant,] and they could come tomorrow.” The informant

and the Hispanic men left the residence. Detective Simonik met with the informant and

searched him. The Hispanic men left the home in the Jetta, and surveillance units followed

the men to a laundromat.

Detective Simonik testified that Detective Justin Fox was in a surveillance unit

reporting his observations to Detective Simonik via police radio. Detectives followed the

kilogram of cocaine as it was transferred to multiple vehicles. A suspect eventually brought

the kilogram of cocaine to a house at 925 Strand Fleet Drive, in Antioch, Tennessee.

Detective Simonik remained in contact with other detectives who reported their observations

to him. Based on the observations of the other officers, Detective Simonik went to the Strand

Fleet Drive house.

When Detective Simonik arrived at the house on Strand Fleet Drive, he observed the

black Chevrolet Tahoe that the surveillance units were also following. Detective Simonik

saw Jose Aragus1 exit the Tahoe and go inside the house carrying a white bag. Surveillance

officers had previously described the white bag to Detective Simonik. The detectives

determined this location was possibly the “stash house,” so Detective Simonik went to obtain

a search warrant while other detectives continued to conduct surveillance on the house.

Detective Simonik stated that while he was obtaining a search warrant, officers

summoned him to the scene of a vehicle stop on Richards Road. The vehicle that the officers

stopped was a brown Ford F-150 with a personalized license plate that said “Araguz.” The

officers on the scene had already searched the vehicle when Detective Simonik arrived. They

1

The record indicates that Jose Aragus and Appellant Araguz spell their surnames differently.

Aragus was indicted with appellants; however, he is not a party to this appeal.

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found one kilogram of cocaine inside a white bag in the engine compartment of the vehicle.

Detective Simonik examined the bag and said it looked like the bag he had observed earlier.

The officers also seized a brown paper bag containing a large amount of money from under

the front seat and plastic bags containing large amounts of money from under the backseat

of the vehicle. The total amount of money seized was $123,015.

Appellant Araguz was driving the brown F-150, and appellant Vasquez was a

passenger. Detectives advised appellants of their Miranda rights. Appellant Vasquez said

he understood his rights and declined to give a statement. Appellant Araguz stated that he

understood his rights and gave a statement to detectives. Detective Simonik said he did not

offer an interpreter to appellant Araguz during the traffic stop because “it appeared that he

spoke pretty good English.”

On cross-examination, Detective Simonik testified that the informant was reliable and

had helped in three other investigations, two that yielded the expected amount of drugs and

one that yielded more than the expected amount. The informant was on probation when he

helped with these three investigations. Detective Simonik recalled that the informant initially

began helping the drug task force to “work off” charges and later became a paid informant.

Under their agreement, the informant was not to arrange any transactions without Detective

Simonik’s knowledge. He said he did not ask the informant for the unknown black male’s

name or interview the unknown black male to learn any additional information. Detective

Simonik was unsure if detectives executed a search warrant at the home of the informant’s

friend but said they might have done so.

Detective Simonik testified that the informant did not give him names or physical

descriptions of the Hispanic men with whom he was going to meet. He also did not describe

the vehicles that would be involved in the transaction. Detective Simonik said he did not

know who lived at 528 Norton Avenue, but he thought the unknown black male was

connected to that address. He believed that the unknown black male was at the house on

Norton Avenue and said the officers did not search him before he went into the home. The

detectives did not photograph or video record the activity at the house on Norton Avenue.

Detective Simonik stated that he first saw appellant Vasquez when he arrived at the scene

of the traffic stop, and he did not have any evidence that appellants were in the Norton

Avenue home.

Detective Justin Fox with the Metro Nashville Police Department testified that he

participated in the investigation that led to appellants’ arrests. He was a member of the team

that conducted surveillance of 528 Norton Avenue. On February 18th at 4:53 p.m., a black

male arrived at the home on Norton Avenue. The informant arrived at the home at 6:30 p.m.,

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and the white Volkswagen Jetta arrived at 6:37 p.m. Detective Fox said he observed two

Hispanic men exit the Jetta and enter the home.

Detective Fox testified that he also observed the informant and the two Hispanic men

leave the home. The two Hispanic men drove away in the Jetta at 7:03 p.m. One Hispanic

man was heavyset and wore a red hat. The other Hispanic man was skinny, spoke English,

and translated for the heavyset Hispanic man. Detective Fox followed the Jetta after it left.

The Jetta pulled into the parking lot of a laundromat, and two Hispanic men exited the

vehicle and got into a white pickup truck. Other surveillance units followed the white pickup

truck while Detective Fox continued to follow the Jetta, which was driven by the heavyset

Hispanic man who was wearing the red hat.

Detective Fox stated that the Jetta entered the Nob Hill Villa apartment complex and

parked in front of the D building. Detective Fox observed the man exit the vehicle and open

the vehicle’s trunk. The man looked around to ensure no one was watching him and

retrieved a dark-colored block from the trunk. Detective Fox stated that he thought the block

was cocaine based on his experience. He said the cocaine was packaged in a compressed

brick form when it was for sale and distribution. The heavyset Hispanic man placed the

dark-colored block in a shiny white bag, looked around again, and got back into the Jetta.

Detective Fox stated that the man left the Nob Hill Villa Apartments, and he continued

to follow the Jetta as it went across the street to a gas station and parked in front of a black

Chevrolet Tahoe. The heavyset Hispanic man exited the Jetta with the white bag that

contained the dark-colored block and went to the passenger side of the Tahoe. The man

leaned into the vehicle and placed the white bag in the Tahoe’s middle console area. While

he was doing this, Jose Aragus was pumping gas for the Tahoe. The heavyset Hispanic man

then returned to his car and left. Aragus finished pumping his gas, got into the Tahoe, and

drove away with Detective Fox following him.

Detective Fox testified that he followed the Tahoe to 925 Strand Fleet Drive. The

Tahoe parked in the driveway, and Detective Fox continued to watch the Tahoe and the men.

Aragus exited the Tahoe and went inside the home. Detective Fox observed a brown F-150

pickup truck that had “Araguz” on the license plate pull into the home’s driveway. Appellant

Vasquez and appellant Araguz exited the truck and entered the home. Appellants and Aragus

eventually exited the home, and Detective Fox observed appellant Vasquez carrying the

white bag containing the dark-colored block. Appellant Araguz opened the hood of the

brown pickup truck, and appellant Vasquez placed the white bag on the left side of the

engine compartment. Appellants then got into the brown pickup truck and left. Surveillance

units followed appellants. A short time later, Aragus exited the home, got into the Tahoe,

and left. Detective Fox followed him.

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On cross-examination, Detective Fox stated that he did not see the heavyset Hispanic

man carry anything out of the Norton Avenue house. He stated that he was unable to see

through the white bag that contained the dark-colored block. The first time Detective Fox

saw the cocaine was at the Nob Hill Villa Apartments. He was not present when officers

recovered the evidence from the vehicles.

Detective Fox stated that after the heavyset Hispanic man transferred the package to

the Tahoe, he drove away in the Jetta. Detective Fox followed the Tahoe because it had the

drugs in it. None of the officers followed the Jetta, and Detective Fox did not know the

identity of the heavyset Hispanic man.

Sergeant Robert Fidler with the Metro Nashville Police Department testified that he

participated in the investigation that led to appellants’ arrests. Director James McWright and

Detective Fox told him about their observations at 925 Strand Fleet Drive, including the

brown F-150 that left that address. Sergeant Fidler stated that the brown F-150 passed him

as it was going to and from the address. He said Drug Enforcement Agency authorities

initiated a traffic stop of the brown F-150, and he participated in the search. Officers

immediately took appellants into custody. Sergeant Fidler opened the hood of the vehicle

and observed the package Detective Fox had described to him. He called for a K-9 unit to

come to the scene to detect any hidden drugs. Officers on the scene did not touch the drugs

until the K-9 unit arrived. Sergeant Fidler further testified that officers seized more than

$120,000 from the vehicle.

Officer Isaac Wood with the Metro Nashville Police Department testified that he

participated in the investigation of this case. He identified an affidavit he completed that

stated the probable cause for appellant Vasquez’s arrest. The affidavit alleged appellant

Vasquez was a passenger in a vehicle that picked up a kilogram of cocaine from 925 Strand

Fleet Drive. It further stated that officers observed someone put a bag containing a kilogram

of cocaine into the engine compartment of the vehicle in which appellant Vasquez was a

passenger. According to the affidavit, the officers followed the vehicle until it reached a safe

area for a felony traffic stop. The vehicle went past J.E. Moss Elementary School and pulled

into a parking lot at 941 Richards Road. Officers took appellants into custody. Appellant

Vasquez advised officers that the driver was just taking him to his vehicle, which was in the

parking lot.

Officer Wood stated that he completed his affidavit based on what officers broadcast

over the police radio. He did not see the suspects who put the cocaine in the engine

compartment of the vehicle. His affidavit stated, “Officers observed the co-defendant in this

case put a bag that contained a kilogram into the engine compartment.” He said that when

he wrote “co-defendant” he was referring to someone other than appellant Vasquez.

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On cross-examination, Officer Wood testified that officers did not include the names

of the suspects in the brown F-150 while broadcasting the information about the vehicle.

However, they identified the suspects by describing their clothing and physical attributes.

Officer Wood later “matched up” each suspect based on those descriptions and included that

information in his affidavit. Officer Wood estimated that officers arrested appellants

approximately fifteen to twenty minutes after he heard over the radio that someone placed

cocaine under the hood of the vehicle.

At the conclusion of the hearing, the trial court denied the motions to suppress, finding

that the officers had reasonable suspicion that criminal activity was occurring and that the

police officers’ observations gave probable cause to stop the vehicle and search it for

contraband.

B. Trial

At the July 19, 2010 jury trial, several officers testified regarding the 20th Judicial

District Drug Task Force’s investigation on February 18, 2009. Director James McWright,

Sergeant Robert Fidler, Detective Justin Fox, and Detective Isaac Wood presented testimony

corroborating each other’s testimony and testified consistently with the evidence established

at the suppression hearing.

In addition to their testimony consistent with the facts established at the suppression

hearing, the officers’ testimony at trial further showed that the package they recovered from

under the hood contained a “kilo-shaped” object that had been cut open. The object was a

brick of white powdery substance “one and [a] half to two inches high, the size of a

kilogram, wrapped in black tape that had been cut open with a smaller bag of crack cocaine

pushed back down in the hole and taped back over it.” Sergeant Fidler testified that

kilograms were typically packaged like the object the officers found in this case, “[a]bout one

and a half to two inches high, kind of in a rectangular form.” The smaller bag of crack

cocaine that the informant had cooked was in the middle of the brick. Officers also found

a brown shopping bag containing a “Ziploc” storage bag containing $20,000 to $30,00 under

the passenger seat. They found more plastic bags containing money under the backseat of

the vehicle. Officers recovered approximately $123,000 from the vehicle, $3,784 from the

appellant Vasquez, and $7,843 from appellant Araguz. Sergeant Fidler testified that he was

not aware of any connection between the money found in the truck and the activity at the

Norton Avenue home or the white bag that contained the kilogram.

Detective Wood placed the cocaine and money that officers recovered from the

vehicle in his police vehicle and transported them to the drug task force office. He stated that

the block of cocaine was already cut open when he recovered it from the scene. The block

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contained a small clear cellophane bag of cocaine base. At the drug task force office,

Detective Wood photographed and weighed the cocaine. He also performed a field test on

it. The following day, Detective Wood transported the evidence to the police department’s

property room.

The officers who were still conducting surveillance at the Strand Fleet Drive home

observed Aragus exit the house, get into the Tahoe, and leave. Director McWright instructed

Officers Fox and Wood to stop Aragus. According to Director McWright, Aragus was

cooperative and signed a consent form allowing officers to search his home without a

warrant. Officers searched the Strand Fleet Drive home, which belonged to Aragus’s

girlfriend, and recovered a small amount of marijuana. They did not find any “testing

equipment” at the home. However, the officer found $6,000, three counterfeit $100 bills,

two guns, and six cellular telephones inside the home.

Denotra Patterson, a special agent forensic scientist with the Tennessee Bureau of

Investigation, testified as an expert in forensic chemistry. She stated that she tested the

substance recovered in this case and determined that it was cocaine, a Schedule II controlled

substance. The total weight of the cocaine was 2.7 pounds, which was more than 300 grams.

She also tested a substance that she determined to be cocaine base and said it weighed 4.1

grams. She explained that cooking the cocaine powder converted it to cocaine base.

David Klein, the manager of the Metropolitan Planning Department Mapping

Division, testified that he generated an aerial map for the area around J.E. Moss Elementary

school. He stated that the north side of the school faces Richards Road. The map showed

a 1,000-foot boundary around the school. Mr. Klein testified that the area of traffic stop on

Richards Road was within 1,000 feet of the school.

Steve Keele testified that he was a director of school security for Metro Nashville

public schools. He stated that his duties required him to know where schools are located

throughout Davidson County. He was familiar with J.E. Moss Elementary School and said

that in February 2009, it was an active elementary school operated by the board of education.

The State rested its case-in-chief. Appellant Araguz waived his right to testify.

Appellant Vasquez likewise declined to testify; however, he entered Sergeant Fidler’s

testimony from the suppression hearing as substantive evidence.

After hearing the evidence and deliberating, the jury convicted both appellants of

conspiracy to deliver more than 300 grams of cocaine in a drug-free school zone and

possession with intent to deliver more than 300 grams of cocaine in a drug-free school zone.

The trial court sentenced appellant Vasquez to serve concurrent twenty-year sentences for

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each count, for a total effective sentence of twenty years in the Tennessee Department of

Correction. The court sentenced appellant Araguz to concurrent seventeen-year sentences

for each count, for a total effective sentence of seventeen years to be served in the Tennessee

Department of Correction. Appellants filed motions for new trials, which the trial court

denied, resulting in the instant appeal.

II. Analysis

A. Motion to Suppress

Appellants first argue that the trial court erred by denying their motions to suppress

the evidence obtained from the brown Ford F-150 pickup truck. They contend that the

officers did not have probable cause to support the warrantless seizures of appellants and

resulting warrantless search of the vehicle because there was not a sufficient nexus between

the activity at the Norton Avenue home and the police officers’ observations. The State

responds that the trial court properly denied the motions to suppress because the officers had

probable cause to arrest appellants and search the vehicle. We agree with the State.

A trial court’s findings of fact at a hearing on a motion to suppress are binding upon

this court unless the evidence contained in the record preponderates against them. State v.

Ross, 49 S.W.3d 833, 839 (Tenn. 2001). As the trier of fact, the trial court is in a better

position to assess the witnesses’ credibility, determine the weight of the evidence and the

value to be afforded it, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). However, the trial court’s conclusions of law are not binding on this

court. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). Further, the trial court’s

applications of law to the facts are questions of law that we review de novo. State v. Daniel,

12 S.W.3d 420, 423 (Tenn. 2000). On appeal, the prevailing party is entitled to the strongest

legitimate view of the evidence and all reasonable inferences drawn therefrom. State v.

Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The defendant bears the burden of establishing that

the evidence contained in the record preponderates against the trial court’s findings of fact.

Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).

At a hearing on a motion to suppress evidence recovered as a result of a warrantless

search, the State must prove that the search was reasonable. State v. Coulter, 67 S.W.3d 3,

41 (Tenn. Crim. App. 2001). To carry its burden, the State must prove that law enforcement

conducted the warrantless search or seizure pursuant to one of the narrowly-defined

exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).

Our supreme court has held:

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[U]nder both the federal constitution and our state constitution, a search

without a warrant is presumptively unreasonable, and any evidence obtained

pursuant to such a search is subject to suppression unless the [S]tate

demonstrates that the search was conducted under one of the narrowly defined

exceptions to the warrant requirement. Moreover, Tennessee has approved of

and adopted exceptions to the requirement of obtaining a valid search warrant,

including search incident to arrest, plain view, stop and frisk, hot pursuit,

search under exigent circumstances, and others.

State v. Cox, 171 S.W.3d, 174, 179 (Tenn. 2005) (internal citations omitted).

Exigent circumstances exist: “‘(1) when officers are in ‘hot pursuit’ of a fleeing

suspect; (2) when the suspect presents an immediate threat to the arresting officers or the

public; or (3) when immediate police action is necessary to prevent the destruction of vital

evidence or thwart the escape of known criminals.’” State v. Adams, 238 S.W.3d 313, 321

(Tenn. Crim. App. 2005) (quoting State v. Givens, No. M2001-00021-CCA-R3-CD, 2001

WL 1517033, at *3 (Tenn. Crim. App. Nov. 29, 2001)). In State v. Meeks, 262 S.W.3d 710,

723 (Tenn. 2008), our supreme court added an additional situation, “to render emergency aid

to an injured person or to protect a person from imminent injury,” to the list of circumstances

that would establish exigent circumstances. The mere existence of one of these

circumstances does not, in and of itself, validate a warrantless search; the State must also

show that “the exigencies of the situation made the search imperative.” State v. Yeargan, 958

S.W.2d 626, 635 (Tenn. 1997). The question of whether the exigent circumstances were

sufficient to justify a warrantless search is a mixed question of law and fact that we review

de novo. Meeks, 262 S.W.3d at 722.

The following guidance from our supreme court is instructive on this issue:

[I]n assessing the constitutionality of a warrantless search, the inquiry is

whether the circumstances give rise to an objectively reasonable belief that

there was a compelling need to act and insufficient time to obtain a warrant.

The exigency of the circumstances is evaluated based upon the totality of the

circumstances known to the governmental actor at the time of the entry. Mere

speculation is inadequate; rather, the State must rely upon specific and

articulable facts and the reasonable inferences drawn from them. The

circumstances are viewed from an objective perspective; the governmental

actor’s subjective intent is irrelevant. The manner and the scope of the search

must be reasonably attuned to the exigent circumstances that justified the

warrantless search, or the search will exceed the bounds authorized by

exigency alone.

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Id. at 723-24.

As noted above, there are several exceptions to the presumption that a warrantless

search and seizure is invalid, including searches incident to lawful arrests and searches

supported by probable cause in the presence of exigent circumstances. State v. Richards, 286

S.W.3d 873, 878 (Tenn. 2009) (citing State v. Day, 263 S.W.3d 891, 901 n. 9 (Tenn. 2008);

State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007)). A well-recognized exception to the rule

that warrantless searches are unreasonable is “that an officer of the law may search an

automobile without a warrant if, at the time, he has probable cause to believe that it contains

contraband and if the circumstances existing are such that the vehicle will probably escape

before a search warrant can be obtained.” State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976)

(citing Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968)). “Probable cause in the

context of a warrantless arrest ‘exists, if at the time of the arrest, the facts and circumstances

within the knowledge of the officers, and of which they had reasonably trustworthy

information, are sufficient to warrant a prudent man in believing that the [defendant] had

committed or was committing an offense.’” State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim.

App. 2000) (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)).

Here, the officers had probable cause to arrest appellants and search the vehicle that

they occupied based on the trustworthy and reliable information from their observations and

their reasonable inferences that appellants had placed a kilogram of cocaine under the hood

of the vehicle. Appellants claim a lack of a nexus between the activity at the Norton Avenue

home and the search and seizure of appellants. However, the evidence showed that after the

informant told the Hispanic men at Norton Avenue that the cocaine was not cooking

properly, they negotiated the price and eventually left the home with a dark colored block

that officers believed to be the kilogram of cocaine. Detective Fox testified that based on his

law enforcement experience, he recognized the block as a kilogram of cocaine. “Our courts

have previously held that an officer, qualified by training and experience to detect and

identify [narcotics], can establish probable cause upon such detection.” State v. Luis Perez,

W2004-00980-CCA-R3-CD, 2005 WL 1114463, at * 4 (Tenn. Crim. App. May 11, 2005)

(citing State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976); Hicks v. State, 534 S.W.2d 872,

873-74 (Tenn. Crim. App. 1975)). Officers observed the kilogram of cocaine as it was

transferred from the Jetta to the Tahoe and from the Tahoe to the brown F-150 occupied by

appellants. Moreover, appellants concealed the contraband by placing it in the engine

compartment of the vehicle, which supported the officers’ belief that the object was cocaine.

See State v. Alvin Dean Shaver, No. 134, 1986 WL 4292, at * 8 (Tenn. Crim. App, April 9,

1986) (noting that an officer’s observation of appellant attempting to hide contraband

coupled with prior information about the crime produced enough probable cause to justify

a warrantless search and seizure.) Considering the totality of the circumstances, including

information provided by the informant and the officer’s observations, the officer had

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probable cause to search the vehicle in which appellants were riding. Accordingly, we

conclude that the trial court’s denial of the motion to suppress was proper and the evidence

obtained from the stop of the vehicle was admissible. Appellants are not entitled to relief on

this issue.

B. Motion in Limine

Appellants next argue that the trial court committed error when it denied their motions

in limine to prevent the State from introducing evidence about the money found in the

vehicle. They contend that the money was not relevant to any fact in issue. The State

responds that appellants waived this issue because the record does not contain a transcript

of the hearing on the motion or the trial court’s order disposing of the motion. We agree with

the State that appellants have waived this issue.

Appellants have a duty to prepare a record that conveys “a fair, accurate and complete

account of what transpired with respect to the issues which form the basis of the appeal” and

will enable the appellate court to decide the issues. Tenn. R. App. P. 24(a); see State v.

Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).

It is well-established that an appellate court is precluded from considering an

issue when the record does not contain a transcript or statement of what

transpired in the trial court with respect to that issue. Moreover, the appellate

court must conclusively presume that the ruling of the trial judge was correct,

the evidence was sufficient to support the defendant’s conviction, or the

defendant received a fair and impartial trial. In summary, a defendant is

effectively denied appellate review of an issue when the record transmitted to

the appellate court does not contain a transcription of the relevant proceedings

in the trial court.

State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). Accordingly, we conclude

that appellants did not adequately preserve this issue for appeal and have thereby waived

appellate review of this claim. See State v. Young, No. W2008-01885-CCA-R3-CD, 2010

WL 161502, at *2 (Tenn. Crim. App. Jan. 15, 2010).

C. Sufficiency

Both appellant Araguz and appellant Vasquez challenge the sufficiency of the

convicting evidence. Specifically, they contend that the evidence was insufficient to prove

that they knowingly possessed cocaine or conspired to deliver cocaine.

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The standard for appellate review of a claim of insufficiency of the State’s evidence

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) (citing Johnson v. Louisiana, 406

U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729

(Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant must

demonstrate that no reasonable trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of review

is identical whether the conviction is predicated on direct or circumstantial evidence, or a

combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown,

551 S.W.2d 329, 331 (Tenn. 1977).

On appellate review, “we afford the prosecution the strongest legitimate view of the

evidence as well as all reasonable and legitimate inferences which may be drawn therefrom.”

Davis, 354 S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010));

State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978). In a jury trial, questions involving the credibility of witnesses and the

weight and value to be given the evidence, as well as all factual disputes raised by the

evidence, are resolved by the jury as trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn.

1997); State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). This court presumes that the jury

has afforded the State all reasonable inferences from the evidence and resolved all conflicts

in the testimony in favor of the State; as such, we will not substitute our own inferences

drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the

evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,

676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of

innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate

level, the burden of proof shifts from the State to the convicted appellant, who must

demonstrate to this court that the evidence is insufficient to support the jury’s findings.

Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).

To sustain appellants’ convictions for possession with intent to deliver 300 grams or

more of cocaine in a drug-free school zone, the State was required to prove that appellants

knowingly possessed 300 grams or more of cocaine with the intent to deliver. Tenn. Code

Ann. § 39-17-417 (2010). Possession of a controlled substance may be actual or

constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). A person constructively

possesses a drug when the person has both the power and intention to exercise dominion and

control over the drugs either directly or indirectly through others. See State v. Patterson, 966

S.W.2d 435, 444-45 (Tenn. Crim. App. 1997). “One’s mere presence in an area where drugs

are discovered, or one’s mere association with a person who is in possession of drugs, is not

alone sufficient to support a finding of constructive possession.” Shaw, 37 S.W.3d at 903.

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“Proof that a possession is knowing will usually depend on inference and circumstantial

evidence. Knowledge may be inferred from control over the vehicle in which the contraband

is secreted.” State v. Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995) (internal citations

omitted) (citing United. States v. Pierre, 932 F.2d 377, 392 (5th Cir. 1991)).

Appellants’ sole contention is that there was no evidence that they knowingly

possessed cocaine. “[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.” Tenn. Code Ann. § 39-11-302(b) (2010). Viewed in the

light most favorable to the State, the evidence showed that appellants entered the house on

Strand Fleet Drive that contained the cocaine. Officers then observed appellants exit the

house. When they exited, appellant Vasquez was holding the packaged cocaine. Appellant

Araguz opened the hood of his truck and stood by as appellant Vasquez placed the package

in the engine compartment of the truck. Appellant Araguz then closed the hood of his truck,

and appellants drove away in the truck with the package concealed under the hood.

Appellants’ joint effort in concealing the package under the vehicle’s hood is circumstantial

evidence that they knew the package contained cocaine and were attempting to prevent its

discovery. See State v. Randall Bishop, No. M2004-02641-CCA-R3-CD, 2005 WL 3038624,

at *3 (Tenn. Crim. App. Nov. 8, 2005) (noting that “the defendant’s attempt to hide the

iodine jug provided evidence of his knowledge of the manufacturing as well as his intent to

prevent discovery of the process”).

Moreover, the large quantity of cocaine in appellants’ possession was circumstantial

evidence that appellants possessed the cocaine with the intent to deliver. “It may be inferred

from the amount of a controlled substance or substances possessed by an offender, along with

other relevant facts surrounding the arrest, that the controlled substance or substances were

possessed with the purpose of selling or otherwise dispensing.” Tenn. Code Ann.

§ 39-17-419 (2010). Additionally, the manner in which the cocaine was packaged and the

lack of drug paraphernalia are strong indicators that the cocaine was for delivery rather than

personal use. See State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995). The large

amount of cash found in the vehicle is another strong indicator that the appellants were

engaged in selling drugs for profit. Further, the evidence showed that appellants possessed

the cocaine within 1,000 feet of J.E. Moss Elementary School.

To sustain the conviction for conspiracy to deliver 300 grams or more of cocaine in

a drug-free school zone, the State had to prove the existence of a conspiracy to commit the

crime discussed above.

The offense of conspiracy is committed if two (2) or more people, each having

the culpable mental state required for the offense that is the object of the

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conspiracy, and each acting for the purpose of promoting or facilitating

commission of an offense, agree that one (1) or more of them will engage in

conduct that constitutes the offense.

Tenn. Code Ann. § 39-12-103(a) (2010). A jury may not convict a defendant of conspiracy

to commit an offense unless the State proves the defendant or another with whom the

defendant conspired committed an overt act in furtherance of the conspiracy. Id. § 39-12-103

(d).

The evidence showed that appellants engaged in a conspiracy to possess 300 grams

or more of cocaine with intent to deliver. Appellants need not manifest their agreement to

engage in the criminal activity underlying the conspiracy by any formal words or by a written

agreement. State v. Cook, 749 S.W.2d 42, 44-45 (Tenn. Crim. App. 1987) (citing Randolph

v. State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978)). Further, “[t]he unlawful

confederation may be established by circumstantial evidence, and by the conduct of the

parties in the execution of the criminal enterprise.” Id. (citing Randolph 570 S.W.2d at

871.). Here, appellants committed overt acts in furtherance of the conspiracy. Appellants

entered and exited the home on Strand Fleet Drive together. Upon exiting the home,

appellants went to the brown Ford F-150 and, acting in concert, concealed the cocaine in the

engine compartment of the truck. After concealing the cocaine, appellants transported it

from the home together.

A reasonable jury could have inferred that appellants possessed 300 grams or more

of cocaine with the intent to deliver. Moreover, the jury could have reasonably inferred that

appellants agreed to commit the offense and committed an overt act in furtherance of the

crime. Accordingly, we conclude that the evidence was sufficient to support appellants’

convictions, and they are not entitled to relief on this issue.

D. Jury Instructions

Finally, appellants argue that the trial court erred in granting the State’s request for

a special jury instruction and by denying their request for a special jury instruction. The State

responds that the trial court issued a complete charge on the applicable law, thus, appellants

are not entitled to relief. We agree with the State.

At trial, defendants have a “constitutional right to a correct and complete charge of

the law.” State v. Garrison, E2011-00496-CCA-R3CD, 2012 WL 3079238, at *6 (Tenn.

Crim. App. July 27, 2012) (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn.1990)). “A

defendant has a right to have every issue of fact raised by the evidence and material to his

defense submitted to the jury upon proper instructions by the trial court. State v. Phipps, 883

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S.W.2d 138, 149-50 (Tenn. Crim. App. 1994) (citing Casey v. State, 491 S.W.2d 90, 94

(Tenn. Crim. App. 1972)). However, trial courts are not required to give special instructions

if the general jury charge covers the substance of the requested special instructions. State v.

Wendi Nicole Garrison, No. E2011-00496-CCA-R3CD, 2012 WL 3079238, at *6 (Tenn.

Crim. App. July 27, 2012). “The test for whether a special instruction must be given is

whether ‘there is any evidence which reasonable minds could accept as to any such [defense]

. . . .’” State v. Anthony Eugene Poole, No. M2010-01179-CCA-R3CD, 2012 WL 826605,

at *6 (Tenn. Crim. App. Mar. 9, 2012), perm. app. denied (Tenn. Aug. 16, 2012) (quoting

Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975)). Questions regarding the propriety of

jury instructions are mixed questions of law and fact; thus, our standard of review is de novo

with no presumption of correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State

v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).

On appeal, this court will only invalidate a jury instruction if, “when read as a whole,

it fails to fairly submit the legal issues or misleads the jury as to the applicable law.” State

v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). “A challenge to a single jury

instruction must be judged in context of the entire jury charge.” State v. Bonam, 7 S.W.3d

87, 89 (Tenn. Crim. App. 1999). When reviewing a challenge to a particular jury instruction

on appeal, the key consideration is “‘whether the ailing instruction by itself so infected the

entire trial that the resulting conviction violates due process.’” State v. Odom, 336 S.W.3d

541, 568 (Tenn. 2011) cert. denied, 132 S. Ct. 397, 181 L. Ed. 2d 255 (U.S. 2011) (quoting

State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008)). A charge that results in prejudicial error

is one that fails to fairly submit the legal issues to the jury or misleads the jury about the

applicable law. Wendi Nicole Garrison, 2012 WL 3079238, at *6 (citing State v. Hodges,

944 S.W.2d 346, 352 (Tenn. 1997)).

Appellants assert that the trial court committed error when it denied their request for

a special jury instruction. Appellants filed motions requesting the court to instruct the jury

as follows:

In order for a verdict of guilty to be returned as to either Count 1 or Count 2

of the indictment the State must [have proved] beyond a reasonable doubt that

[appellants] knew that substance contained in the bag retrieved from the

[residence of] Jose Aragus was, in fact, cocaine.

The trial court denied the request and instructed the jury pursuant to Tennessee Pattern Jury

Instruction 31.04. Appellants assert that the court’s instruction confused the issue of whether

appellants knew the package contained cocaine and that it lessened the State’s burden of

proof.

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The trial judge instructed the jury that the State had to prove beyond a reasonable

doubt that appellants “knowingly possessed Cocaine, a Schedule II controlled substance.”

The trial judge further instructed the jury as follows:

“Knowingly” means that a person acts knowingly with respect to the conduct

or to the circumstance surrounding the conduct when the person is aware of

the nature of the conduct or that the circumstances exist. A person acts

knowingly with respect to a result of the person’s conduct when the person is

aware that the conduct is reasonably certain to cause the result.

The trial court’s instruction gave a correct and complete charge of the law. It did not

confuse the issue of whether appellants knowingly possessed cocaine with the intent to

deliver and did not lower the State’s burden of proof as alleged by appellants. The

instruction clearly defined the “knowingly” mental state, and there was no need for further

instruction. Thus, the trial court did not err by denying appellants’ requests for special jury

instructions regarding the “knowingly” mens rea.

Appellants further argue that the trial court erred when it granted the State’s motion

for a special instruction explaining that the jury did not have to find that appellants intended

to drive through a school zone. In their briefs2 , both appellants challenge the State’s request

that the trial court instruct the jury that “[t]he State is not required to prove any defendant

knowingly or intentionally committed the offense on the grounds or facilities of any school

or within one thousand feet of real property that comprises a public or private elementary

school, middle school or secondary school.” Appellants assert that this instruction gave the

jury “the impression that no mental state was required and thus gave a misleading application

of the law.” We have reviewed the jury charge in this case and find that the trial court did

not issue this instruction to the jury. Moreover, this court has previously held that the Drug-

Free School Zone Act is an “enhancement statute” and does not require a mens rea. State v.

Smith, 48 S.W.3d 159, 167 (Tenn. Crim. App. 2000); see State v. Jenkins, 15 S.W.3d 914,

917 (Tenn. Crim. App. 1999) (holding that if the state legislature intended the Drug-Free

School Zone Act to be an enhancement statute, it does not require explicit mens rea

language). Accordingly, we conclude that this issue is without merit and appellants are not

entitled to relief.

2

We note that the record does not contain the State’s motion requesting the special instruction.

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CONCLUSION

Based on the foregoing, we affirm the judgments of the trial court.

_________________________________

ROGER A. PAGE, JUDGE

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