The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs April 14, 2009
STATE OF TENNESSEE v. DERRICK FUTCH
Direct Appeal from the Criminal Court for Shelby County
No. 07-04920, 910, 952 W. Otis Higgs, Jr., Judge
No. W2008-01046-CCA-R3-CD - Filed August 20, 2009
The defendant, Derrick Futch, was convicted of two counts of obtaining a controlled substance by
forgery, Class D felonies, and one count of attempt to obtain a controlled substance by forgery, a
Class E felony. The defendant was sentenced to three years for each conviction of obtaining a
controlled substance by forgery and two years for his conviction of attempt to obtain a controlled
substance by forgery. On appeal, the defendant raises the following issues: (1) whether the trial
court erred in consolidating the three offenses for trial; (2) whether the trial court erred in allowing
the state to impeach the defendant’s testimony with evidence of a prior conviction; (3) whether the
evidence was sufficient to support the convictions; and (4) whether the cumulative effect of the trial
court’s errors violated due process and the defendant’s right to a fair jury trial. Upon review of the
record and the parties’ briefs, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E.
GLENN , JJ., joined.
Robert Wilson Jones (at trial), Chief Public Defender; Phyllis Aluko (on appeal), Assistant Public
Defender and Michael Johnson (at trial), Assistant Public Defender, Memphis, Tennessee, for the
appellant, Derrick Futch.
Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Marianne Bell, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
I. Background
The defendant was indicted in two separate cases for obtaining a controlled substance by
forgery and in another case for attempt to obtain a controlled substance by forgery. The state moved
to consolidate the three cases for trial and defense counsel objected. The trial court consolidated the
three cases and a trial commenced. The following pertinent testimony was presented at trial. Joshua
Richard Groves, a board certified general surgeon, testified that in July of 2006, he began a
fellowship at the burn and wound care center (hereinafter “the wound care center”) at The Regional
Medical Center in Memphis (hereinafter “The Med”). Dr. Groves stated that he treated the
defendant at the wound care center on several occasions for lower extremity venous stasis ulcers,
wounds related to circulatory problems and swelling. On August 3, 2006, the defendant complained
of pain and Dr. Groves wrote a prescription for fifteen Percocet tablets. Dr. Groves explained that
Percocet was another name for Oxycodone, a Schedule II controlled substance with addictive
qualities. According to Dr. Groves, Percocet caused drowsiness and therefore should only be taken
at bedtime. Furthermore, if a patient with venous stasis ulcers failed to move around during the day,
the condition could become worse.
Dr. Groves explained the procedure followed in prescribing the defendant Percocet. He said
that the prescription pad was locked in a mechanized cabinet. Dr. Groves entered his security code,
pulled out a prescription sheet, wrote the prescription, and handed the prescription to a nurse. The
nurse would stamp the prescription with the defendant’s information, write the prescription
information in the defendant’s medical chart, and give the prescription to the defendant. Dr. Groves
did not allow nurses or other personnel to change his prescription orders. He identified the
prescription that he wrote for the defendant on August 3, 2006, and it was made a trial exhibit. Dr.
Groves testified that the prescription had been signed by him and contained his instructions: “One
to two tablets, by mouth, at night, as needed for pain.” The prescription allowed for no refills and
the dose was five milligrams. Dr. Groves testified that the prescription indicated an order for forty-
five Percocet tablets, however, he wrote the prescription for fifteen Percocet tablets. He stated that
he had never written a prescription for forty-five Percocet tablets because the quantity was too great
considering the medication’s risks of addiction and overdose.
Dr. Groves also identified a prescription dated August 17, 2006, which was made a trial
exhibit. He stated that on August 17th, he treated the defendant and gave him a prescription for eight
Percocet tablets. The same procedure that Dr. Groves followed on August 3rd was followed in
writing the prescription on August 17th. Upon reviewing the prescription, Dr. Groves confirmed
that he did not allow the prescription to be altered, but said that the quantity had been changed from
eight, the quantity that he ordered, to forty-eight. Dr. Groves stated that he had never written a
prescription for forty-eight Percocet tablets.
On August 24, 2006, the defendant returned to the wound care center. Dr. Groves stated he
treated the defendant and wrote a prescription for fifteen Percocet tablets. A prescription for
Percocet dated August 24, 2006 was made a trial exhibit. Dr. Groves testified that he followed the
same procedure on August 24th as had been followed in prescribing the medication to the defendant
on August 3rd and August 17th. Dr. Groves stated he did not allow anyone to change the quantity
of the prescription. Upon reviewing the prescription, Dr. Groves identified his signature and
confirmed that he wrote the instructions, print strength, and refill information which were identical
to the instructions, print strength, and refill information written on the August 3rd and August 17th
prescriptions. Dr. Groves stated the prescription quantity had been altered from fifteen to forty-five.
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Dr. Groves stated that according to his medical records, the defendant was getting his
prescriptions filled at the Medplex Pharmacy located inside The Med. Dr. Groves stated that he
became suspicious that the defendant was altering the prescriptions. After he had written a
prescription for the defendant on August 24th, Dr. Groves had a member of the wound care center
staff contact the pharmacy to determine the quantity of Percocet tablets that had been dispensed to
the defendant. Dr. Groves later spoke with someone at the pharmacy and determined that the
defendant’s prescriptions had been altered.
On cross-examination, Dr. Groves stated that the only way to obtain a prescription for
Percocet at the wound care center was to get a prescription sheet from the locked machine which
required a code. Dr. Groves stated that all Percocet prescriptions that he wrote for the defendant
were in response to the defendant’s complaints of pain. Dr. Groves stated that four or five nurses
worked at the wound care center; and the same nurse would not have treated the defendant at each
visit.
Kelly Woods testified that in August of 2006, she was working as a staff pharmacist at the
Medplex Pharmacy. Dr. Woods stated the defendant often brought prescriptions to the Medplex
Pharmacy. The defendant qualified for a charity program and received his prescribed medications
free of charge. On August 3rd, the defendant presented Dr. Woods with a prescription written by
Dr. Groves for the pain reliever, Percocet, five milligrams. Dr. Woods stated that she entered the
prescription information into the pharmacy data base including the quantity, forty-five tablets. The
prescription was then filled by pharmacy technicians. Dr. Woods stated that the defendant came into
the pharmacy again on August 17th and handed her another prescription written by Dr. Groves for
Percocet. The quantity on the prescription was forty-eight tablets. Dr. Woods entered the
prescription into the computer and filled the prescription.
Dr. Woods testified that on August 24th, she was contacted by a nurse regarding the
defendant’s prescriptions. At the nurse’s request, Dr. Woods investigated the defendant’s pharmacy
prescription history and determined that the prescriptions brought into the pharmacy by the
defendant on August 3rd and August 17th did not match the information regarding the defendant’s
prescriptions in the wound care center’s records. Dr. Woods was advised that the defendant had
been seen earlier that day and given a prescription for fifteen Percocet tablets. Later on August 24th,
the defendant came into the pharmacy and presented Dr. Woods with a prescription for forty-five
Percocet tablets. Dr. Woods stated that she entered the prescription information into the computer
system, gave the prescription to a pharmacy technician to be filled, and alerted hospital security and
the police. When the defendant came to pick up his filled prescription order, he was taken into
custody. Dr. Woods stated that she provided the police with pharmacy records indicating that on
August 3rd, the defendant had a prescription filled for forty-five Oxycodone/Acetaminophen
(Percocet) tablets, and on August 17th, the defendant had a prescription filled for forty-eight
Oxycodone/Acetaminophen (Percocet) tablets.
On cross-examination, Dr. Woods stated that she was familiar with the defendant because
he was a weekly pharmacy customer. She did not remember receiving a telephone call from the
defendant regarding his prescriptions.
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Velma Pilcher, a pharmacy technician, identified the defendant as a Medplex Pharmacy
customer. Ms. Pilcher testified that on August 3, 2006, she witnessed the defendant sign for his
prescription and she initialed his signature. Ms. Pilcher gave the defendant forty-five Oxycodone
(Percocet) tablets. Nikia Rogers, a pharmacy technician, also identified the defendant as a Medplex
Pharmacy customer. A print-out of the signature pad bearing the defendant’s signature and Ms.
Rogers’ initials was identified by Ms. Rogers and made a trial exhibit. Ms. Rogers confirmed that
on August 17, 2006, she gave the defendant forty-eight Percocet tablets.
Anthony Morris, officer with the Memphis Police Department, testified that on August 24,
2006, he responded to a call from The Med reporting fraudulent prescriptions. He stated he spoke
with Dr. Groves and pharmacy technicians and obtained copies of the fraudulent prescriptions. The
defendant was arrested when he came into the pharmacy and attempted to pick up medication.
Officer Morris said that the defendant asked if he could receive a citation instead of going to jail.
The defendant testified that in 2003, he was diagnosed with venous stasis ulcers and diabetes
and received treatment for both conditions at The Med. The defendant stated that he was first treated
by Dr. Groves in July of 2006. In August of 2006, the defendant was seeing Dr. Groves on a weekly
basis at the wound care center. On August 3rd, the defendant told Dr. Groves that he was in pain
and asked for some pain medication. When the defendant left the wound care center, a nurse gave
him discharge papers and a prescription. The defendant stated he did not look at the prescription
because the same information was included on the discharge papers which he had reviewed. The
defendant stated that he proceeded directly to the pharmacy located down the hall and gave the
prescription to Dr. Woods who entered the information into the pharmacy computer. The defendant
waited about thirty minutes for his prescription to be filled.
On August 17, 2006, the defendant again saw Dr. Groves and complained of pain. After Dr.
Groves left the examination room, a nurse returned with the defendant’s discharge papers and said
that the doctor was going to order some Percocet. About five minutes later, the nurse brought him
a prescription. The defendant stated that he did not look at the actual prescription, but knew that he
had been prescribed eight Percocet tablets from looking at the discharge papers. The defendant
stated that he usually had a different nurse every time he was treated at the wound care center. From
the wound care center, the defendant went directly to the pharmacy and gave the prescription to Dr.
Woods. Several hours later, he returned to the pharmacy to retrieve his medication. After he
returned home, the defendant discovered that he had received forty-eight Percocet tablets instead of
eight. The defendant claimed that he called the Medplex Pharmacy to ask that the computer be
checked. He stated that he took no action as a result of the telephone call. The defendant returned
to the wound care center on August 24th, however, he could not remember if he saw Dr. Groves.
After treating his legs, a nurse gave him discharge papers and left. About five minutes later, the
nurse returned with a prescription. The defendant stated that the nurse who gave him his prescription
on August 24th was not the same nurse who gave him his prescription on August 3rd or on August
17th. He stated that he went directly to the pharmacy and gave Dr. Woods the prescription. The
defendant agreed that the three prescriptions had been altered, but he denied any knowledge of the
changes. The defendant stated that on the dates in question, only he had access to his prescriptions
from the time that he received them from a nurse until he gave the prescriptions to Dr. Woods. The
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defendant admitted that he was convicted of theft approximately ten years ago and stated, “They did
sentence me[.]”
On cross-examination, the defendant agreed that on August 3rd, his discharge papers
indicated he was to receive fifteen Percocet tablets, the discharge papers he received on August 17th
indicated that he was to receive eight Percocet tablets, and the discharge papers he received on
August 24th indicated that he was to receive fifteen Percocet tablets. The defendant agreed that he
picked up his prescriptions on August 3rd and August 17th and that he tried to pick up his
prescription on August 24th. According to the defendant, on either August 3rd or August 17th, he
called the pharmacy to report that he had received more Percocet than had been prescribed. The
defendant stated that he saw Dr. Groves on the 17th, however, he did not tell the doctor that he had
received more medication than was prescribed. The defendant agreed that he asked Dr. Groves for
more pain medication. The defendant could not recall if he saw Dr. Groves on August 24th. He
stated that he asked a nurse for more pain medication and the nurse paged Dr. Groves to request a
prescription for the defendant. According to the defendant, the nurses also had access to prescription
sheets. The defendant denied that upon his arrest, he asked a police officer if they could give him
a citation instead of taking him to jail. He agreed that in 1998, he was convicted of theft of property
over five hundred dollars. He stated that he was put on probation and ordered to “pay the money
back[.]”
Analysis
I. Consolidation of the Offenses for Trial
The defendant asserts that the trial court erred in consolidating the three offenses for trial.
Specifically, the defendant argues that because defense counsel objected to the state’s motion to
consolidate, the trial court should have applied the rule governing the severance of cases. The
defendant asserts that the trial court’s consolidation of the cases unfairly prejudiced him by allowing
the jury to consider evidence of his propensity to commit the offenses charged.
In pretrial proceedings, the state moved to consolidate the three cases pursuant to Rules 8 and
13 of the Tennessee Rules of Criminal Procedure. Rule 8(b) provides that two or more offenses may
be “consolidated pursuant to Rule 13 if the offenses constitute parts of a common scheme or plan
or if they are of the same or similar character.” Rule 13 allows the trial court to consolidate the
offenses if the offenses could have been joined in a single indictment pursuant to Rule 8 or sever the
offenses if the prosecution or defense could have obtained a severance under Rule 14. See Tenn. R.
Crim. P. 13(a) and (b). The defendant opposed the state’s motion. “[W]hen a defendant objects to
a pre-trial consolidation motion by the state, the trial court must consider the motion by the
severance provisions of Rule 14(b)(1), not the ‘same or similar character’ standard of Rule 8(b).”
Spicer v. State, 12 S.W.3d 438, 443 (Tenn. 2000). Pursuant to Rule 14(b)(1), “the defendant shall
have a right to a severance of the offenses unless the offenses are part of a common scheme or plan
and the evidence of one would be admissible upon the trial of the others.” Id. at 445.
The first prong of Rule 14(b)(1) requires a showing that: (1) the offenses are of distinctive
design or are signature crimes; (2) the evidence demonstrates a larger continuing plan or conspiracy;
or (3) the offenses are part of the same criminal transaction. State v. Moore, 6 S.W.3d 235, 240
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(Tenn. 1999). Also, a common scheme or plan may be supported by evidence of “groups or
sequences of crimes committed in order to achieve a common ultimate goal or purpose.” State v.
Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993). The larger, continuing plan classification
has been reserved for cases involving evidence of crime sprees demonstrating the commission of
several crimes closely related in time. See State v. Allen Prentice Blye, No.
E2001-01375-CCA-R3-CD, 2002 WL 31487524, at *6 (Tenn. Crim. App., at Knoxville, Nov.1,
2002), perm. app. denied (Tenn. Mar. 10, 2003).
The second prong of Rule 14(b)(1) requires a showing that the evidence of one offense would
be admissible in the trial of the other offenses. Therefore, the question of evidentiary admissibility
must be addressed. Spicer, 12 S.W.3d at 445. The trial court must conclude that: (1) evidence of
each offense is relevant to some material issue in the trial of the other offenses; and (2) the probative
value of the evidence of other offenses is not outweighed by the prejudicial consequences of
admission. Id. “Evidence of a person’s character or trait of character is not admissible for the
purpose of proving action in conformity with the character or trait on a particular occasion.” Tenn.
R. Evid. 404(b). But, evidence of “other crimes, wrongs, or acts” may be admissible for “other
purposes” such as proving identity, criminal intent, or rebuttal of accident or mistake. Id.; Tenn. R.
Evid. 404, Advisory Comm’n Cmts. To determine whether evidence of other crimes, wrongs or acts
is admissible for a purpose other than to prove that the person acted in conformity with a character
trait, the trial court must determine whether “a material issue exists other than conduct conforming
with a character trait,” and the court “must exclude the evidence if its probative value is outweighed
by the danger of unfair prejudice.” Tenn. R. Evid. 404(b)(2) and (4).
Generally, if the trial court complied with the Rules of Criminal Procedure, its decision to
consolidate offenses will not be overturned absent an abuse of discretion. State v. Toliver, 117
S.W.3d 216, 231 (Tenn. 2003); Spicer, 12 S.W.3d at 442. In the instant case, the trial court found
the offenses were part of a common scheme or plan. However, the court failed to consider the
admissibility of evidence of each offense in the trial of the other offenses and therefore applied the
incorrect legal standard. See State v. Jovan Xavier Moore, No. M2007-02515-CCA-R3-CD, 2008
WL 4253636, at *7 (Tenn. Crim. App., at Jackson, Sept. 16, 2008), perm. app. denied (Tenn. May
4, 2009) (concluding that following the defendant’s objection to the state’s motion for consolidation,
the trial court applied the incorrect legal standard finding that the offenses were of the same or
similar character, but failing to address the question of admissibility). Furthermore, at the pretrial
hearing, the state described the nature of the case, named the witnesses expected to testify, and
confirmed that the offenses took place within a three week time period; however, the state failed to
present any evidence. We conclude that in the absence of evidence countervailing the defendant’s
right to severance under Rule 14(b)(1), the trial court erred in granting the state’s motion to
consolidate the cases over the objection of the defendant. See id. The trial court’s error is subject
to harmless error analysis. See id. (citing Tenn. R. Crim P. 52(a); State v. Dotson, 254 S.W.3d 378,
388 (Tenn. 2008); and Spicer, 12 S.W.3d at 447).
Our primary focus in addressing whether the trial court’s error was harmless error is “whether
the error likely had an injurious effect on the jury’s decision-making process.” Dotson, 254 S.W.3d
at 389. We look to the evidence along with the trial court’s findings of fact and conclusions of law
to determine if the trial court’s consolidation of the offense was justified despite use of an incorrect
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standard. See Jovan Xavier Moore, 2008 WL 4253636, at *8. The evidence must be assessed under
Rule 404(b) of the Tennessee Rules of Evidence. Spicer, 12 S.W.3d at 445. We must determine
from the evidence presented that:
(1) the multiple offenses constitute parts of a common scheme or plan; (2) evidence
of each offense is relevant to some material issue in the trial of all the other offenses;
and (3) the probative value of the evidence of other offenses is not outweighed by the
prejudicial effect that admission of the evidence would have on the defendant.
Id. (citations omitted). Because no evidence was presented at the pretrial hearing, we look to the
evidence presented at trial to determine whether the evidence supported a common scheme or plan
and to determine whether such evidence was admissible under the Rule 404(b). See Jovan Xavier
Moore, 2008 WL 4253636, at *9.
The evidence presented at trial established that the defendant was seen at the wound care
center on August 3, 17, and 24, 2006. At each visit, Dr. Groves wrote prescriptions for Percocet in
the quantities of fifteen, eight, and fifteen tablets respectively. The defendant confirmed that on each
occasion, he read the discharge sheet and was aware of the quantity prescribed. The defendant
further testified that after receiving his prescriptions on the 3rd and on the 17th, he knew that the
pharmacy gave him more Percocet than his discharge sheets indicated would be prescribed. The
defendant stated that when he returned for treatment on August 17th and on August 24th, he did not
tell anyone at the wound care center that he received more medication than was indicated on the
discharge sheets. The defendant stated that on August 17th, he asked Dr. Groves for more pain
medication and that on August 24, he asked a nurse to request that Dr. Groves give him more pain
medication. The evidence also established that in all cases, the prescriptions were altered by
changing the quantity of Percocet tablets prescribed. Twice the prescriptions were altered by
changing the number one into the number four. On one occasion, the prescription was changed by
adding a four in front of the number eight. The incidents were linked as part of the same treatment
the defendant received from Dr. Groves at the wound care center; and all incidents occurred within
a period of three weeks.
We conclude that the evidence supports that all three offenses were part of a common scheme
or plan. We further conclude that the evidence of each offense that was presented at trial would have
been admissible under the Rule 404(b) upon the trial of each of the two remaining offenses.
Evidence of each offense was probative of the defendant’s intent in the commission of all three
offenses. The defendant’s intent would be a material issue in the separate trial of each offense. The
probative value of evidence showing the defendant’s intent is not outweighed by the danger of unfair
prejudice. Accordingly, the trial court’s failure to make findings regarding the admissibility of the
evidence of each offense upon the trial of each of the remaining offenses was harmless error. The
record supports consolidation of the offenses and the denial of severance under Rule 14(b)(1). The
defendant is without relief on this issue.
II. Impeach the Defendant’s Testimony
The defendant asserts that the trial court improperly permitted the state to ask the defendant
about his sentence in an attempt to impeach his testimony with a prior conviction. The defendant
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further asserts that in the event of any waiver, this court may consider the issue under a plain error
standard. The state argues that the defendant waived the issue by failing to make a contemporaneous
objection and by failing to raise the issue in his motion for a new trial.
Ordinarily, the defendant’s failure to make an objection to the admissibility of evidence at
the time it is entered results in a waiver of the issue. See Tenn. R. App. P. 36(a); State v.. Killebrew,
760 S.W.2d 228, 235 (Tenn. Crim. App. 1988). However, in cases where the precise issue has been
considered and a ruling made, it is not necessary for counsel to further object at trial to preserve the
issue for appeal. State v. McGhee, 746 S.W.2d 460, 463-64 (Tenn. 1988). In the instant case, prior
to the defendant’s testimony and outside of the presence of the jury, the prosecutor sought
instructions regarding the boundaries of impeaching the defendant’s testimony with a prior theft
conviction and inquired whether she could “ask him about being placed on probation.” The trial
court responded:
The only thing you can ask him is if he is the same person that was convicted of
whatever the offense was and whatever time frame and that he in that case received
probation. That’s - - you don’t ask him about the results. Now, he may open the
door. If he opens the door, you can get into it. Let’s just see what happens. That is
all you can ask him.
We conclude that defense counsel’s failure to object at trial did not waive the issue for appellate
review. See Tenn. R. Evid. 103(a)(2) (“Once the court makes a definitive ruling on the record
admitting to or excluding evidence, either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.”). Nevertheless, waiver becomes a
consideration because of the affirmative actions taken by the defense at trial. Specifically, during
the direct examination of the defendant, defense counsel asked if the defendant had been convicted
of theft and if he was sentenced and received punishment. The defendant affirmed that he had been
convicted and was sentenced and received punishment. On cross-examination, the prosecutor
revisited the issue of the prior conviction and asked if the defendant had been sentenced to two years.
The defendant responded that he had received probation and was instructed to pay restitution. The
trial court interrupted the defendant’s testimony, thereby preventing further testimony on the prior
conviction.
When defense counsel attempts to “gain credibility” with the jury by first presenting evidence
which has been ruled admissible by the trial court, the strategy, though sound, “can be fraught with
danger in terms of preserving issues for appeal.” State v. Charles Drake, No.
E2004-00247-CCA-R3-CD, 2005 WL 1330844, at *15 (Tenn. Crim. App., at Knoxville, June 6,
2005) (defense counsel first brought up the defendant’s intoxication in direct testimony after the trial
court ruled that the defendant’s blood toxicology report was admissible). As observed by the court
in Charles Drake, “[h]owever, when, as here, defense counsel elects to elicit the [prior] conviction
during direct-examination, he waives all issues relating to the admissibility of the conviction. This
is the price that an accused must pay when defense counsel invokes this strategy.” Id. at *16
(quoting State v. Milburn Greene, No. C.C.A. 317, 1990 WL 170431, at *3 (Tenn. Crim. App., at
Knoxville, Nov. 7, 1990), perm. app. denied (Tenn. Mar. 18, 1991)). In the instant case, since
defense counsel first addressed the defendant’s conviction for theft and his sentence in direct
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examination, issues relating to the admissibility of evidence of the defendant’s prior conviction were
waived.
In addition, the defendant failed to present the issue in his motion for a new trial. “[I]n all
cases tried by a jury, no issue presented for review shall be predicated upon error in the admission
or exclusion of evidence, . . . or other ground upon which a new trial is sought, unless the same was
specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.”
Tenn. R. App. P. 3(e); State v. Martin, 940 S.W.2d 567, 569 (Tenn.1997) (holding that a defendant
relinquishes the right to argue on appeal any issues that should have been presented in a motion for
new trial but were not raised in the motion). The defendant argues that although not addressed in
a motion for new trial, the improper impeachment of the defendant’s testimony should be reviewed
by this court under the standard of plain error.
Plain error review extends only to an obvious error which affects the substantial rights of the
defendant. The criteria for finding plain error are difficult to satisfy. We will not recognize plain
error unless the following five factors are established: (1) the record must clearly establish what
occurred in the trial court; (2) a clear and unequivocal rule of law must have been breached; (3) a
substantial right of the defendant must have been adversely affected; (4) the accused did not waive
the issue for tactical reasons; and (5) consideration of the error is necessary to do substantial justice.
Tenn. R. Crim. P. 52(b); State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000). All five factors must
be established, and consideration of all five factors is unnecessary if any one factor indicates that
relief is not warranted. Id. at 283. The defendant has the burden of persuasion regarding plain error
claims. See United States v. Olano, 507 U.S. 725, 734 (1993).
The record demonstrates what occurred in the trial court and does not support that a clear and
unequivocal rule of law was breached or that a substantial right of the defendant was adversely
affected. The record reveals that before the prosecutor attempted to impeach the testimony of the
defendant, defense counsel asked the defendant about his prior conviction and whether he had
received a sentence and punishment. The defendant responded, “They did sentence me[.]” The
defendant thereby opened the door on questions regarding his sentence for the prior conviction. On
cross-examination, the prosecutor revisited the issue, asking “you were sentenced to two years,
correct?” The defendant responded, “Probation and they gave me three years probation.” The
defendant offered unsolicited testimony that he was also ordered to pay restitution. The trial court
prevented further testimony by the defendant on the issue. Finally, although addressing the
defendant’s prior conviction during his direct examination may have been a tactical maneuver
waiving the issue, the failure to address the issue in a motion for a new trial was not. Therefore, the
five requisite factors are not met. We conclude that the defendant has waived the issue and has not
carried the burden of showing he is entitled to plain error review. The defendant is without relief
on this issue.
III. Sufficiency of the Evidence
On appeal, the defendant asserts that the record does not reasonably support his convictions.
We begin our review by reiterating the well-established rule that once a jury finds a defendant guilty,
his or her presumption of innocence is removed and replaced with a presumption of guilt. State v.
Evans, 838 S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the
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burden of demonstrating to this court why the evidence will not support the jury’s verdict. State v.
Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982). To meet this burden, the defendant must establish that no “rational trier of fact” could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319 (1979); State v. Evans, 108 S.W.3d 231, 236 (Tenn. 2003); see Tenn. R. App. P. 13(e).
In contrast, the jury’s verdict approved by the trial judge accredits the state’s witnesses and resolves
all conflicts in favor of the state. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is
entitled to the strongest legitimate view of the evidence and all reasonable inferences which may be
drawn from that evidence. Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of
the witnesses, conflicts in trial testimony, the weight and value to be given the evidence, and all
factual issues raised by the evidence are resolved by the trier of fact and not this court. State v.
Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the
evidence. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Likewise, we do not replace the jury’s
inferences drawn from the circumstantial evidence with our own inferences. State v. Reid, 91
S.W.3d 247, 277 (Tenn. 2002). These rules are applicable to findings of guilt predicated upon direct
evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence.
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999).
The defendant was found guilty of two counts of obtaining possession of a controlled
substance by forgery and one count of attempt to obtain possession of a controlled substance by
forgery. Under Tennessee Code Annotated section 53-11-402(a)(3), “[i]t is unlawful for any person
knowingly or intentionally to: . . . (3)[a]cquire or obtain, or attempt to acquire or attempt to obtain,
possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge.”
A defendant “knowingly” commits an offense when he “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). A defendant “intentionally”
commits an offense when he “acts intentionally with respect to the nature of the conduct or to a
result of the conduct when it is the person’s conscious objective or desire to engage in the conduct
or cause the result.” Id. at § 39-11-302(a). Criminal attempt is defined as, a person “acting with the
kind of culpability otherwise required for the offense,” and either, “(2) [a]cts with intent to cause a
result that is an element of the offense, and believes the conduct will cause the result without further
conduct on the person’s part; or (3) [a]cts with intent to complete a course of action or cause a result
that would constitute the offense, under the circumstances surrounding the conduct as the person
believes them to be, and the conduct constitutes a substantial step toward the commission of the
offense . . . .” Id. at § 39-12-101(a)(2) and (3). Pursuant to Tennessee Code Annotated section 39-
17-408, Oxycodone is a Schedule II controlled substance.
When viewed in a light most favorable to the state, the evidence showed that on August 3,
2006, Dr. Groves prescribed the defendant fifteen Percocet tablets for the relief of pain. Dr. Groves
explained that Percocet was another name for the narcotic pain medication, Oxycodone, a Schedule
II controlled substance. The defendant testified that the discharge sheet indicated that Dr. Groves
wrote a prescription for fifteen Percocet tablets. The defendant testified that after receiving the
prescription, he went directly from the wound care center to the pharmacy located down the hall.
After receiving the prescription from the nurse, only the defendant had access to the prescription.
Dr. Woods entered the order for forty-five Percocet tablets into the pharmacy computer system and
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sent the prescription to be filled. A pharmacy technician testified that she knew the defendant as a
customer of the pharmacy and that he picked up the prescription and signed for its receipt. The
defendant testified that he later discovered that he had received forty-five Percocet tablets. The
evidence further established that the defendant returned to the wound care center on August 17th and
was again treated by Dr. Groves. The defendant failed to mention to Dr. Groves that he had received
more Percocet than had been prescribed. To the contrary, the defendant requested that Dr. Groves
prescribe more medication. The evidence showed that Dr. Groves prescribed eight Percocet tablets
and that the prescription was filled at the Medplex Pharmacy in much the same manner as the
prescription of August 3rd had been filled. Dr. Woods testified that when the defendant gave the
prescription to her, it indicated that the defendant was to receive forty-eight Percocet tablets. The
defendant picked up and signed for the filled prescription later on August 17th. Dr. Woods testified
that she did not recall receiving a telephone call from the defendant regarding his prescriptions.
On August 24th, the defendant returned for treatment and again requested more pain
medication. Dr. Groves wrote a prescription for fifteen Percocet tablets which the defendant took
to the Medplex Pharmacy to be filled. Dr. Woods testified that the prescription that the defendant
submitted ordered forty-five Percocet tablets. Dr. Woods contacted security and police. The
defendant was arrested when he returned to the pharmacy and attempted to obtain the Percocet
tablets. We conclude that based upon the evidence presented at trial a reasonable jury could have
found the defendant guilty of obtaining a controlled substance by fraud and attempt to obtain a
controlled substance by fraud. Therefore, the defendant is without relief on this issue.
IV. Cumulative Effect
The defendant contends that the cumulative effect of the errors in this case deprived him of
his right to a fair trial and due process. However, we find no merit to this claim in light of our
previous determinations.
Conclusion
Based upon the foregoing review, we affirm the judgments of the trial court.
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J.C. McLIN, JUDGE
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