State of Tennessee v. Jamie Paul Click

03/30/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 16, 2016 Session

STATE OF TENNESSEE v. JAMIE PAUL CLICK

Appeal from the Circuit Court for Sevier County

No. 18116-II Richard R. Vance, Judge

No. E2015-01769-CCA-R3-CD

The Defendant, Jamie Paul Click, was convicted of one count each of selling heroin

within a drug-free school zone, delivering heroin within a drug-free school zone, and

casually exchanging marijuana; and two counts each of delivering heroin and selling

heroin. The trial court merged the three delivery convictions with the corresponding sale

convictions and imposed an effective sentence of eighty years’ incarceration. In this

appeal as of right, the Defendant raises challenges to the following: (1) the trial court’s

refusal to sever the offenses, contending that each drug deal should have been tried

separately because his conduct was not part of a common scheme or plan and,

additionally, that evidence of the drug-free school zone deal was prejudicial to the other

counts; (2) the sufficiency of the convicting evidence supporting his various convictions

for sale and delivery of heroin, arguing that all of the transactions were merely casual

exchanges and that there was inadequate proof that the one transaction occurred within a

drug-free school zone; and (3) various aspects of the trial court’s sentencing decision,

including the Defendant’s range classification, the length of his sentences, the imposition

of consecutive sentences, and the subsequent denial of his motion to reduce his total

effective sentence.1 Following our review of the record, we affirm the judgments of the

trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Wesley D. Stone, Knoxville, Tennessee, for the appellant, Jamie Paul Click.

1

For the sake of clarity, we have renumbered and reordered the issues as stated by the Defendant in his

brief.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant

Attorney General; James B. (“Jimmy”) Dunn, District Attorney General; and George C.

Ioannides, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

This case relates to controlled drug purchases conducted by the Sevierville Police

Department (“SPD”) in September 2012. Thereafter, the Defendant was charged with

alternate counts of selling and delivering heroin on September 5, 2012, within a drug-free

school zone (Counts 1 and 2), Class A felonies; one count of casually exchanging

marijuana on September 10, 2012 (Count 3), a Class A misdemeanor; alternate counts of

selling and delivering heroin on September 10, 2012 (Counts 4 and 5), Class B felonies;

and alternate counts of selling and delivering heroin on September 11, 2012 (Counts 6

and 7), likewise Class B felonies. See Tenn. Code Ann. §§ 39-17-417, -418, -432. The

Defendant proceeded to a jury trial.

At trial, Eric Blalock testified that, in 2012, he ran into the Defendant, whom he

had known for “[a]t least fifteen” years, at Sunoco gas station, and a conversation ensued.

Mr. Blalock said that, during their talk, the Defendant asked him if he was “messing with

anything at the time[,]” which Mr. Blalock understood to mean “[d]oing any drugs or

anything.” The men exchanged telephone numbers and went their separate ways. A

couple of days later, Mr. Blalock “was needing to make some money[,]” so he started

working with the SPD as a “cooperating individual” (“CI”). According to Mr. Blalock,

he had been offered this opportunity to work as a CI when his “wife was picked up on a

theft charge” and the authorities asked him “if [he] could help them out.” Mr. Blalock

confirmed that he was paid for his services, approximately $100 per buy.

Detective Josh Turner was employed with SPD as a narcotics investigator in 2012.

He testified that he began working as an investigator approximately two years prior to

that time. He also had seven years of previous experience as a narcotics investigator with

the Knox County Sheriff’s Department. According to Det. Turner, he would often use

CIs in narcotics investigations, and it was customary for CIs to get paid or receive help

on pending charges in exchange for their services.

Det. Turner testified that, in “street level” drug transactions, typically only

“smaller amounts” of drugs were purchased for personal use and small purchases were

made frequently once money became available. Det. Turner also said that “street level

dealers” did not usually carry large amounts of drugs on their person, especially when

making deals. This, according to Det. Turner, was because they were afraid of being

arrested while in possession of a large amount of drugs. When asked why the police

might not arrest someone immediately for selling drugs, Det. Turner replied, “[W]e’ll do

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several buys to show that they are a drug dealer and they’re just not doing it to help a

friend out or doing favors[.]” The police, Det. Turner testified, may also be “try[ing] to

find out where they’re supplied.”

Det. Turner confirmed that Mr. Blalock and his wife, who was “being looked at on

a charge” by the “Criminal Investigation Division[,]” contacted him in 2012, and he set

up a meeting with the couple. At the meeting which followed, Det. Turner enrolled Mr.

Blalock as a CI, and it was agreed that Mr. Blalock would be paid for services.

According to Det. Turner, Mr. Blalock was unemployed and staying with his grandfather

at the time of the meeting. Det. Turner testified that he used Mr. Blalock “in a number of

investigations” over a period of three or four years and that Mr. Blalock was

compensated approximately $2600 in total for his work.

An undercover investigation, Det. Turner said, began with the CI’s identifying a

possible “target” from whom they could buy drugs. After the target had been identified,

the CI would place a recorded phone call to that individual “to see if they [could]

purchase anything that day to see if they have anything.” If a purchase was imminent,

Det. Turner met with the CI. Det. Turner explained that the CI was searched along with

any vehicle driven by the CI and that the CI was then provided with photographed money

to purchase the drugs. According to Det. Turner, the CI was also outfitted with a “wire,”

allowing the police to listen to the transaction as it was taking place, and a “recording

device,” capturing either a video or audio recording of the drug deal. Once the purchase

was consummated, the CI returned to the officers, turned over the drugs, and was

searched again.

The first controlled purchase of heroin involving the Defendant and Mr. Blalock

occurred on September 5, 2012. On that day, Mr. Blalock, under police supervision,

called the Defendant and arranged to meet at a local Kroger to purchase a small quantity

of heroin. Following the procedure previously detailed, Det. Turner prepared Mr.

Blalock for the transaction. Thereafter, Det. Turner, in a vehicle being driven by

Tennessee Bureau of Investigation (“TBI”) Agent Greg McNamara, followed Mr.

Blalock to the Kroger parking lot. Assisting Det. Turner with the controlled purchase

that day were Agents Steve Kitts, Norton,2 and McNamara.

After waiting in the Kroger parking lot a while, Det. Turner requested that Mr.

Blalock call the Defendant to see if he still planned on coming. The Defendant answered

Mr. Blalock’s call and said that he was “parked behind the Clarion Inn, that he was

having truck trouble.” The Defendant told Mr. Blalock that he was driving a red Chevy

truck, which Det. Turner later determined was registered to a “Jeff Click.” Upon Det.

Turner’s directive, Mr. Blalock began driving towards the Clarion Inn, but just as Mr.

2

The first name of Agt. Norton is not apparent from the record.

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Blalock was leaving Kroger, Heather Arwood phoned Mr. Blalock and told Mr. Blalock

to meet the Defendant at the Taco Bell on Winfield Dunn Parkway instead of at the

Clarion Inn. All parties proceeded towards the Taco Bell.

Det. Turner observed Mr. Blalock pull his vehicle into the “Exxon/Taco Bell

area.” So as not to be suspicious, Agt. McNamara and Det. Turner continued driving past

the Taco Bell. After quickly turning around and heading back for the Taco Bell, Det.

Turner saw Mr. Blalock’s truck parked next to a red Chevy truck and the Defendant

“standing outside between the two vehicles.” Mr. Blalock testified that the Defendant

exited his truck and got inside the passenger side of Mr. Blalock’s vehicle. According to

Mr. Blalock, they then exchanged $25 for a small bag containing a powdery substance,

which was later determined to be 0.05 grams of heroin. As Agt. McNamara and Det.

Turner were entering the Exxon pulling up to the gas pump, the Defendant’s truck was

heading “right at” them, and Det. Turner was able to identify the Defendant and Ms.

Arwood as the truck’s occupants. The Defendant could be heard on the recording device

during this transaction instructing Mr. Blalock on how to use the heroin intravenously;

telling Mr. Blalock that he should like the heroin better than “R,” meaning Roxicodone,

and that heroin’s effects last longer; and informing Mr. Blalock that, if Mr. Blalock

wanted to ride with the Defendant to his supplier, Mr. Blalock would be able to buy ten

bags of heroin for $120.

Ms. Stacey Whaley, the director of Sevier County Geographical Information

Systems (“GIS”), testified about the maps she created showing the area where the

September 5, 2012 transaction occurred and averred that they accurately reflected how

the property looked in 2012. For the Defendant’s trial, she created several maps

providing aerial views of Taco Bell and Cattlesburg Elementary School with parcel lines

drawn.3 In several of the maps, the elementary school can be seen nearby to the

northwest of the restaurant. Ms. Whaley stated that Sevier County School Board owned

two tracts of land involving Cattlesburg Elementary—the initial tract of land being the

school and school’s grounds (“Tract 3”), and the second parcel was a right-of-way that

was later deeded to the school board and that was the primary method of ingress and

egress from the school, including the route travelled by school buses. Two certified

deeds governing these parcels were entered into evidence. Also two certified maps

3

Ms. Whaley was qualified as “an expert to use ArcGIS software to draw maps and give opinions about

how to interpret the maps and using the data to plot the maps.” She testified that the maps were created

using the following process: “We input the data, the parcel line that we received from the property

assessor’s office into our system and add the aerial photography from T[ennessee] D[epartment] O[f]

T[ransportation] and create a map that you can physically see property lines and aerial photography.”

This was Ms. Whaley’s first time to testify in a court of law. She was thoroughly questioned about how

the maps were prepared.

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depicting the parcels in the area comprising “United Commercial Park,” which included

both the school and restaurant, were made exhibits.

Det. Turner identified one of the aerial view maps and stated that the map “fairly

and accurately reflect[ed] the geography on the day that this drug transaction occurred”

between Mr. Blalock and the Defendant. Det. Turner placed an “X” on the map

signifying the location of the drug deal, which was near a median in the “parking area

between the Taco Bell and the Exxon[.]” Agt. McNamara also identified this location.

Utilizing a measuring wheel, Det. Turner physically calculated the distance from

the drug transaction’s location, which location he designated as location number one, to

several different places inside the school’s boundaries. The first measurement was 185

feet from the where the drug deal occurred and was marked by a cone numbered two.

Det. Turner also notated cone two on the aerial map, which was inside the school’s right-

of-way parcel. A photograph of cone two showed its location in a field directly across

from the Taco Bell parking lot. Another photograph from cone two looking towards the

school showed the school’s main entrance road and the Cattlesburg Elementary School’s

sign. Location number three was directly in front on the school sign, and the distance to

location three from the drug deal was 250 feet, according to Det. Turner. A cone marked

number four was placed further up the entrance road at a distance measuring 500 feet

from location one. Location one in the Taco Bell parking lot can be seen in a photograph

taken from cone four. Next, Det. Turner stated that a cone designated number five was

placed on the entrance road 750 feet from location one. The Taco Bell and Exxon were

no longer visible in a photograph taken from cone five. Finally, Det. Turner marked the

distance of 1000 feet from the drug deal’s location with a cone labeled number six, which

location “was pretty much right at the intersection of United Boulevard and the entrance

to the school.” There was a stop sign facing United Boulevard at this intersection. In a

photograph looking towards the school from cone six’s location, the elementary school

and a gate in front of the school on the entrance road can clearly be seen. Det. Turner

also noted cone six on the aerial map, and cone six was inside Tract 3, the initial tract of

land comprising the school and school’s grounds. All previously numbered locations

were on the school’s right-of-way parcel.

SPD school resource officer Tim Russell testified that he routinely patrolled the

school’s grounds, including the right-of-way, and that the school board maintained the

right-of-way. When considering ownership of the school’s right-of-way, the drug deal,

Ofc. Russell said, took place within about 150 feet from the school property line. Ofc.

Russell also stated that the “gate across the driveway” was only used when the school

was on “full lockdown.” The gate’s location on the school’s property was further than

1000 feet from where the transaction occurred in the Taco Bell parking lot.

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Returning to the ongoing narcotics investigation, Det. Turner described a second

controlled-buy attempt by Mr. Blalock to purchase heroin from the Defendant on

September 7, 2012. Mr. Blalock again telephoned the Defendant. On the recordings, the

Defendant can be heard asking Mr. Blalock how he liked the heroin from “the other day,”

affirming that heroin was better because it lasted longer and was cheaper than pills,

stating that he was going to “make a run here in a minute” to obtain more drugs, and

inquiring how many bags of heroin Mr. Blalock wanted. Ultimately, the Defendant

stated that his supplier was “stalling” him, and no drug purchase took place that day.

On September 10, 2012, Mr. Blalock, once more under police supervision, called

the Defendant trying to buy heroin. The Defendant said that “he would have some bags

later on but then he asked [Mr.] Blalock to sell some of that good strawberry kush for

him.” According to Det. Turner, strawberry kush was a strain of marijuana. Mr. Blalock

told the Defendant that he would call him back after making some phone calls “to see if

he would be able to help [the Defendant] get rid of some of” the marijuana. Det. Turner

told Mr. Blalock to go ahead and buy the marijuana from the Defendant. They arranged

to meet at a local Walmart, with the understanding that the Defendant would obtain

heroin to sell Mr. Blalock later that day. After following the same established procedure

for CI drug buys, Det. Turner dropped Mr. Blalock off at the Walmart and observed the

drug deal from a parked car. Det. Turner testified that he saw the Defendant arrive with

Ms. Arwood in a red Mustang, which was registered to Ms. Arwood. When the couple

parked, Mr. Blalock went to the passenger-side window of the Mustang and bought

marijuana from the Defendant, trading $75 for 5.08 grams of marijuana. The Defendant

said to Mr. Blalock that he “wished [he] knew” he was going to get this $75 for selling

marijuana because he could have already bought more heroin from his supplier.

Later on September 10, Mr. Blalock called the Defendant to inquire about the

status of the heroin. The Defendant stated that he was headed to Knoxville to get the

heroin and asked Mr. Blalock if he could front the money for the heroin purchase.

However, Mr. Blalock, upon Det. Turner’s order, declined to give the Defendant money

before he was in possession of the heroin. The Defendant stated that he understood and

that he would call Mr. Blalock about forty-five minutes before he returned to the

Sevierville area. Sometime later, they agreed to meet at a Pilot gas station.

Mr. Blalock was dropped off and waited for the Defendant “on the south side of

the Pilot where there’s a retaining wall.” In order to observe the transaction, Agt.

McNamara parked in the Pilot parking lot, and Det. Turner parked across the street.

Eventually, the Defendant arrived as a passenger in the same red Mustang. Mr. Blalock

went to the passenger side of the vehicle, paid the money the police provided, and

received two bags of heroin, 0.07 grams in total, from the Defendant. On this occasion,

Mr. Blalock noticed that the Defendant had six other small bags of heroin in his lap.

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Det. Turner described a final controlled drug buy on September 11. For this

controlled purchase of heroin, the same procedures were followed, and Mr. Blalock

arrived at the predetermined meeting location, a Chick-fil-A restaurant. The Defendant

chose the Chick-fil-A over Walmart because the Defendant “was worried about the

cameras in front of Walmart.” Again, the Defendant arrived as a passenger in the same

red Mustang. Mr. Blalock purchased two more bags weighing 0.07 grams in total.

Mr. Blalock testified that each bag of heroin he bought from the Defendant was

enclosed in the same light blue packaging. Furthermore, Mr. Blalock paid $50 each time

for the two bags of heroin he purchased from the Defendant, although he unsuccessfully

tried to negotiate a lower price. Furthermore, Mr. Blalock testified that he had no other

interactions with the Defendant during the narcotics investigation, although he did have

some social involvement with the Defendant after these transactions. Mr. Blalock

testified that he “never hung out with” the Defendant prior to September 2012, explaining

that he “had met [the Defendant] through [his] brother years before.” Mr. Blalock

confirmed that he was facing a new drug charge at the time of the Defendant’s trial;

however, Mr. Blalock said that he had not been promised any benefit in exchange for his

testimony.

Following the presentation of evidence, the Defendant was convicted as charged.

A sentencing hearing was held, and the trial court sentenced the Defendant to an effective

eighty-year incarcerative sentence as a Range II, multiple offender. This appeal

followed.

ANALYSIS

On appeal, the Defendant argues (1) that the trial court erred when it denied his

motion for severance of offenses; (2) that the evidence was insufficient beyond a

reasonable doubt to establish that he sold or delivered heroin, claiming that he was guilty

of casual exchange instead, or to establish that the September 5, 2012 transaction

occurred within 1000 feet of real property comprising an elementary school; and (3) that

the trial court made sentencing errors, including classifying him as a Range II, multiple

offender, imposing maximum sentences within each conviction’s range, ordering

consecutive sentences, and denying his subsequently filed motion to reduce his overall

sentence pursuant to Rule 35 of the Tennessee Rules of Criminal Procedure. We will

address each issue in turn.

I. Motion to Sever

The State joined the various drug deals by charging the offenses in the same

presentment. Prior to trial, the Defendant filed a motion to sever each transaction by

date; a motion that the trial court denied after a hearing. After the jury trial, the

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Defendant was found guilty of alternate counts of selling and delivering cocaine on

September 5, 2012, within a drug-free school zone (Counts 1 and 2); one count of

casually exchanging marijuana on September 10, 2012 (Count 3); alternate counts of

selling and delivering cocaine on September 10, 2012 (Counts 4 and 5); and alternate

counts of selling and delivering cocaine on September 11, 2012 (Counts 6 and 7).

On appeal, the Defendant argues that the trial court erred by denying his motion to

sever Counts 1 and 2; from Counts 3, 4, and 5; and all of the preceding counts from

Counts 6 and 7, alleging that three separate trials should have been held. In support of

his argument, he asserts that the separate drug transactions on three different dates were

not part of a common scheme or plan and that evidence of each drug transaction would

not have been admissible in the trial of the others, resulting in “bad act evidence” being

introduced to buttress each drug buy. Furthermore, the Defendant submits that he was

unfairly prejudiced by the introduction of the school zone evidence pertaining to Counts

1 and 2 where the subsequent transactions did not include school zones. The State

responds that each drug deal was part of a larger, continuing plan and that the evidence of

the various offenses would have been admissible in the trials of the others to prove the

Defendant’s intent.

At the motion to sever hearing, Det. Turner testified concerning the three separate

drug deals occurring on September 5th, 10th, and 11th of 2012, and about the

unsuccessful attempt to purchase drugs on September 7, 2012. At the conclusion of Det.

Turner’s testimony, the Defendant, noting the “different weights, different quantities[,]

and different drugs on different dates[,]” made the following argument:

And so it’s our position, . . . while we don’t necessarily agree that these

offenses are part of a common scheme or plan, that they would not be

admissible in the trial of the other. . . . [I]t’s [the Defendant’s] position that

it would be a violation of Rule 404 of the Tennessee Rules of Evidence to

allow prior bad acts allegedly occurring on September the 5th and

September the 10th in a trial for things occurring on September 11th. And

equally so as it relates to September the 10th and September the 5th. So it’s

our position that they’re not admissible at the trials of each other for the

reasons of 404(b), but particularly the standards set forth

in Tennessee Rule of Criminal Procedure 14(b)(1). The State responded that

the evidence of the things that occurred on the 7th and the 10th and the 11th

would prove the [D]efendant’s intent, lack of mistake, and those various

items for the transaction on the 5th. And likewise, the things that happened

on the 5th, the 7th and 11th, would do so for the 10th. So I think all of the

evidence . . . would be admissible on that basis in a trial[.]

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The trial court thereafter denied the motion to sever, reasoning as follows:

In this case, the only fact [different] between the three events are the

locations. The officer is the same. The [cooperating individual], the person

making the buy, is the same. The defendant is the same. The drugs are the

same, except the marijuana was used—that sale was used in order for the

[D]efendant to be able to fund the purchase of the heroin, which was sold

again. It appears to the [c]ourt that these three transactions were part of a

very common scheme, plan, involving the same actors, the same type of

drug, and it was part of a common plan, and that each would be admissible

to the other to show the lack of any mistake, to show motive, to show

intent, and the identity of this defendant.

A trial court’s denial of a motion to sever is reviewed under an abuse of discretion

standard. State v. Garrett, 331 S.W.3d 392, 401 (Tenn. 2011) (citing Spicer v. State, 12

S.W.3d 438, 442 (Tenn. 2000)). A trial court abuses its discretion when it applies

incorrect legal standards, reaches an illogical conclusion, bases its ruling on a clearly

erroneous assessment of the proof, or applies reasoning that causes an injustice to the

complaining party. Id. (citing State v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010)). This

court will also find an abuse of discretion when the trial court has failed to consider the

relevant factors provided by higher courts as guidance for determining an issue. State v.

Lewis, 235 S.W.3d 136, 141 (Tenn. 2007).

Tennessee Rule of Criminal Procedure 8(b) provides that “[t]wo or more offenses

may be joined in the same indictment” if the offenses are either (1) “parts of a common

scheme or plan” or (2) “of the same or similar character.”4 However, Rule 14(b)(1)

4

Tennessee Rule of Criminal Procedure 8 provides for two types of joinder of offenses: mandatory and

permissive. Mandatory joinder is required when two or more offenses are “(A) based on the same

conduct or arise from the same criminal episode; (B) within the jurisdiction of a single court; and (C)

known to the appropriate prosecuting official at the time of the return of the indictment(s) . . . .” Tenn. R.

Crim. P. 8(a)(1). The Defendant seemingly concedes that the State could have permissibly joined the

separate drug buys pursuant to Rule 8(b). However, the State appears to imply in a footnote that

mandatory joinder might have been appropriate in this case. We are constrained to agree with the

Defendant this is not a case of mandatory joinder pursuant to Rule 8(a) because, based upon these facts,

the underlying drug transactions were not all part of one criminal episode. See State v. Jamie N. Grimes,

No. M2012-00530-CCA-R3-CD, 2013 WL 5761301, at *3-4 (Tenn. Crim. App. Oct. 22, 2013) (holding

that the two offenses which occurred almost a month apart and at different locations were not part of the

same criminal episode, even though the same cooperating individual was used in both cases); see also

State v. Johnson, 342 S.W.3d 468, 475 (Tenn. 2011) (concluding that, for principles of mandatory joinder

to apply, “the acts to be included in the same criminal episode must occur simultaneously or in close

sequence and must occur in the same place or in closely situated places”). Moreover, we warn the State

that the result it implies could be problematic in subsequent cases. The failure by the State to join all the

“same conduct” or “same criminal episode” offenses in the original indictment prevents the State from

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provides that if “two or more offenses are joined . . . pursuant to Rule 8(b), the defendant

has the 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 in the trial of the others.”

Accordingly, once a defendant makes a motion to sever or 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)” instead of the provisions of Rule 8(b). Garrett,

331 S.W.3d at 402 (quoting Spicer, 12 S.W.3d at 443). Upon a defendant’s motion to

sever, “the trial court must hold a hearing in order to gather the information necessary to

adjudicate the issue.” Id. at 403. The trial court must sever the offenses unless it can

conclude from the evidence and arguments presented at the hearing that: (1)

the multiple offenses constitute parts of a common scheme or plan; (2)

evidence of [one] 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. (quoting Spicer, 12 S.W.3d at 445).

As our supreme court has previously stated, “a common scheme or plan for

severance purposes is the same as a common scheme or plan for evidentiary purposes.”

State v. Moore, 6 S.W.3d 235, 240 n.7 (Tenn. 1999). For offenses to be considered part

of a continuing scheme or plan, the crimes must be directed toward a “common goal or

purpose.” State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004) (quoting State v. Hoyt, 928

S.W.2d 935, 943 (Tenn. Crim. App. 1995)) (internal quotation marks omitted). This

“requires proof of ‘a working plan, operating towards the future with such force as to

make probable the crime for which the defendant is on trial.”’ State v. Allen Prentice

Blye, No. E2001-01375-CCA-R3-CD, 2002 WL 31487524, at *5 (Tenn. Crim. App.

Nov. 1, 2002) (quoting Hoyt, 928 S.W.2d at 943).

We agree with the trial court’s assessment that the three sets of offenses, occurring

within a one-week time period, all involving the same cooperating individual, same

defendant, and his same companion, Ms. Arwood, were part of a common scheme or plan

to sell and deliver heroin. The offenses also involved the same geographical area. Det.

Turner testified that the buys involved virtually the same sequence of events. Except for

the marijuana sale, each buy involved a similar amount of heroin. The money from the

marijuana sale was used to purchase more heroin to sell to Mr. Blalock. This court has

subsequently prosecuting the other charges that should have been included in the original indictment

unless the charges have been severed pursuant to Tennessee Rule of Procedure 14. See Tenn. R. Crim. P.

8(a)(2); Tenn. R. Crim. P. 8, Advisory Comm’n Cmt. (stating that charges that have been saved back “are

barred from future prosecution if known to the appropriate prosecuting official at the time that the other

prosecution is commenced, but deliberately not presented to a grand jury”).

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repeatedly acknowledged “common scheme or plans” involving drug transactions with

similar factual patterns. See, e.g., State v. Garrick Graham, No. E2014-01267-CCA-R3-

CD, 2016 WL 892013, at *6 (Tenn. Crim. App. Mar. 8, 2016) (concluding that the

evidence—“[a]ll but one of the offenses in this case took place during a period of time

from September 1, 2011, through October 24, 2011, and involved the same controlled

substance, the same [cooperating individual], and either [the defendant or his co-

defendant] or both”; the “offenses also involved the same area in Kingsport”; and an

officer testified that “the buys involved virtually the same sequence of events”—

established a larger continuing plan to supply the cooperating individual with

progressively greater quantities of crack cocaine); Grimes, 2013 WL 5761301, at *3-4;

State v. Patrick L. Maliani, No. M2012-01927-CCA-R3-CD, 2013 WL 3982156, at *12-

13 (Tenn. Crim. App. Aug. 5, 2013) (holding that the “two offenses were part of a

continuing criminal scheme” because the same cooperating individual sought to purchase

drugs from the same seller, the defendant was present at both drug sales and acted as a

look out on both occasions, and each time, a small quantity of crack cocaine was

purchased); State v. Joseph Clyde Beard, Jr., No. 03C01-9502-CR-00044, 1996 WL

563893 (Tenn. Crim. App. Sept. 26, 1996) (finding “common scheme” where same

individual purchased similar amounts of cocaine from the same defendant for the same

amount of money in the same location although the drug transactions occurred a month

apart); State v. Roger D. Pulley, No. 01C01-9501-CC-00013, 1995 WL 555060, at *2

(Tenn. Crim. App. Sept. 20, 1995) (concluding that a severance was inappropriate when

the five drug offenses “[o]ccurred within eight weeks of one another and involved

virtually the same sequence of events, the same [cooperating individual], and the same

established procedure”); State v. Steve Mosley, No. 01C01-9211-CC-00345, 1993 WL

345542, at *4 (Tenn. Crim. App. Sept. 9, 1993) (“[I]n the case at bar, four of the indicted

offenses occurred within a three-day period and the other occurred approximately six

weeks later. All of the offenses involved the same controlled substance, the same

defendant, the same [cooperating individual] and the same witnesses. It was such a

continuous episode so closely related that the proof was essentially the same in each

case.”). Moreover, we note that there is no requirement that “each incident be identical to

the previous one.” Pulley, 1995 WL 555060, at *2.

The Defendant relies on State v. Reba Nell Woods, No. M2012-01922-CCA-R3-

CD, 2013 WL 6406275 (Tenn. Crim. App. Dec. 9, 2013), in support of his argument that

three separate transactions were not part of larger, continuing plan. In that case, a panel

of this court held that “nothing indicated that the [defendant’s] drug sales to [the

cooperating individual] were part of a working plan with a readily distinguishable goal”

but were “to the contrary, . . . simply a string of similar offenses.” 2013 WL 6406275, at

*12. But cf. State v. Donald Ray Blevins, No. M2009-00124-CCA-R3-CD, 2010 WL

1687736, at *6-8 (Tenn. Crim. App. Apr. 26, 2010) (concluding that multiple telephone

calls setting up separate buys did evince a common scheme or plan). The present case is

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readily distinguishable from Woods. In Woods, the cooperating individual made calls to

the defendant and arranged to buy drugs from a third party. The dates of the various drug

deals spanned over a month, and the defendant argued that she “did not have anything to

do with the drug transactions[,]” even presenting testimony to that effect from one of the

sellers. 2013 WL 6406275, at *1-8, *10. Here, the Defendant was present at every drug

deal, all taking place within a one-week period, and he can be heard on the tape

recordings instructing Mr. Blalock on how to use the heroin and asking Mr. Blalock to

help him sell drugs. The Defendant’s reliance on Woods is misplaced.

Turning to the second factor of Rule 14(b)(1), a primary issue of any severance

case is whether the evidence of one offense would be admissible in the trial of the other if

the two offenses remained severed. Garrett, 331 S.W.3d at 402. Put another way, a

severance motion is essentially “‘a question of evidentiary relevance.’” Id. (quoting

Spicer, 12 S.W.3d at 445). In order to determine whether “evidence of one [offense]

would be admissible in the trial of the other,” a trial court, in essence, must determine

whether proof of a defendant’s alleged bad act may be admitted in his trial for another

alleged bad act. See State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008). Thus, this

determination implicates Tennessee Rule of Evidence 404(b), which excludes evidence

of “other crimes, wrongs, or acts” committed by the defendant when offered only to show

the defendant's propensity to commit the crime charged. This is because such evidence

lacks relevance and invites the finder of fact to infer guilt from propensity. Garrett, 331

S.W.3d at 402-03. However, evidence of prior bad acts may be admissible for other

purposes, such as “to show identity, guilty knowledge, intent, motive, to rebut a defense

of mistake or accident, or to establish some other relevant issue.” Moore, 6 S.W.3d at

239 n.5 (quoting State v. Hallock, 875 S.W.2d 285, 292 (Tenn. Crim. App. 1993)).

The trial court found that the evidence of each set of the offenses would have been

admissible in the trials of the others if the three sets were severed because the other drug

transactions would be relevant and probative as to “show the lack of any mistake, to show

motive, to show intent, and the identity of this defendant.” In this case, identity was not

an issue. Instead, the Defendant’s main argument at trial was that he did not intend to

sell or deliver the heroin and that the transactions were merely casual exchanges with no

preset plan or arrangement. One of the elements of the crime of sale or delivery of a

controlled substance is that the Defendant did so “knowingly.” See Tenn. Code Ann. §

39-17-417(a).

State v. Steve Edward Houston, No. 01C01-9711-CC-00510, 1998 WL 749414

(Tenn. Crim. App. Oct. 28, 1998), presented a similar factual scenario. In Houston, the

defendant did not “contest the fact that he sold crack cocaine to the State’s agents[,]” but

instead, defended the charges “upon grounds that his sales of cocaine were ‘casual

exchange’ rather than a designed sale as contemplated by Tenn[essee] Code Ann[otated]

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[section] 39-17-417(a)(3).” 1998 WL 749414, at *5. This court determined that “the

evidence of the other counts was relevant” because “[e]ach of the transactions were

closely related with a distinctive design common among the four occurrences.” Id. The

Houston court continued, “the evidence of one offense would be admissible upon the trial

of the others” to show intent and guilty knowledge, and “[t]he probative value of the

evidence clearly outweighs the danger of unfair prejudice.” Id.; see Maliani, 2013 WL

3982156, at *13 (agreeing with the trial court that proof of two separate drug transactions

was relevant to the other to prove identity, motive, and guilty knowledge because the

defendant argued at trial that he merely “stood there, not doing anything” during the drug

transactions and the State offered the evidence to show that the defendant had knowledge

that a drug transaction was occurring, that he acted as a look-out, and that he was the

source of the drugs exchanged); State v. Wayne Hymes Richards, a/k/a Pete Richards,

No. 03C01-9503-CR-00102, 1996 WL 384897, at *3 (Tenn. Crim. App. July 8, 1996)

(holding that severance was not warranted on two separate charges of delivery of

marijuana, where, “[g]iven that the two offenses were so similar, evidence of the

defendant’s participation in each offense was probative of both his identity and his guilty

knowledge as to the other offense”).

The Defendant also contends that he was unfairly prejudiced by the introduction of

the school zone evidence pertaining to Counts 1 and 2 where the subsequent transactions

did not include school zones. While the record contains no ruling by the trial court with

respect to whether the probative value of the evidence outweighed its prejudicial effect,

our review of the transcript of the trial convinces us that the probative value of each set of

offenses outweighed any danger of unfair prejudice by admission of the evidence. See,

e.g., State v. Chris Smith, No. 03C01-9807-CR-00259, 1999 WL 619042, at *2 (Tenn.

Crim. App. Aug. 17, 1999) (concluding that, although the trial court did not make

findings as required by Tennessee Rule of Evidence 404(b), the defendant was entitled to

no relief); Richards, 1996 WL 384897, at *3 (“While the record contains no ruling by the

trial court with respect to this issue, our review of the transcript of the trial convinces us

that the probative value of each offense with respect to the defendant’s identity and state

of mind outweighed any danger of unfair prejudice.”). In this case, the facts of each

transaction were alike except for the date. The Defendant’s actions in each set of

offenses were extremely probative of intent, motive, guilty knowledge, and lack of

mistake, and established a common scheme or plan. The drug-free school zone

enhancement is strict liability in nature, meaning that the seller does not have to have any

knowledge of the school’s location relative to the drug deal. See Tenn. Code Ann. § 39-

17-432(b); State v. Smith, 48 S.W.3d 159, 169 (Tenn. Crim. App. 2000). We agree with

the State that “there is no reason to believe the jury convicted [the] Defendant of selling

[and delivering] drugs, as opposed to casually exchanging them, just because one of the

sales occurred in close proximity to a school.” We conclude that both prongs of the test

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under Rule 14(b) are met, and the trial court did not abuse its discretion by denying the

Defendant’s motion to sever the three separate drugs deals.

Additionally, the Defendant has not established that he has been clearly prejudiced

by the consolidation of these offenses. “On appeal, a denial of the severance will not be

reversed unless it appears that the defendant was clearly prejudiced.” State v. Barber,

753 S.W.2d 659, 671 (Tenn. 1988); Mosley, 1993 WL 345542, at *4. There was

overwhelming evidence of guilt with respect to the three drug deals, which we will

discuss in more detail later in this opinion. See Moore, 6 S.W.3d at 242-43 (noting that

“the line between harmless and prejudicial error is in direct proportion to the degree . . .

by which proof exceeds the standard required to convict” and holding that denial of

motion to sever was harmless error where “the evidence presented was more than

sufficient for conviction”). Accordingly, even if the trial court erred by denying the

Defendant’s motion to sever, such error would ultimately have been harmless. Id. at 242

(stating that “the defendant must show that the error probably affected the judgment

before reversal is appropriate”).

II. Sufficiency of the Evidence

The Defendant challenges the sufficiency of the evidence supporting each heroin

transaction, arguing that the evidence established merely a casual exchange as opposed to

a sale or delivery.5 He also submitted that the proof did not support the school zone

enhancement. The State insists that the evidence was sufficient to support the

convictions.

An appellate court’s standard of review when a defendant questions the

sufficiency of the evidence on appeal 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). This court does not reweigh the evidence; rather, it presumes that the jury

has resolved all conflicts in the testimony and drawn all reasonable inferences from the

evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);

State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness

credibility, conflicts in testimony, and the weight and value to be given to evidence were

resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

A guilty verdict “removes the presumption of innocence and replaces it with a

presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the

evidence is insufficient to support the jury’s verdict.” Id.; State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). The standard of proof is the same whether the evidence is direct

5

The Defendant does not challenge his marijuana conviction on appeal.

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or circumstantial. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise,

appellate review of the convicting evidence “is the same whether the conviction is based

upon direct or circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265,

275 (Tenn. 2009)). The duty of this court “on appeal of a conviction is not to

contemplate all plausible inferences in the [d]efendant’s favor, but to draw all reasonable

inferences from the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67

(Tenn. 2011).

The Defendant was convicted of the sale and delivery of heroin, in violation of

Tennessee Code Annotated section 39-17-417(a)(2) and (3), which makes it a crime to

knowingly sell or deliver a controlled substance. “[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). Heroin is a Schedule I controlled substance. Tenn. Code Ann. § 39-17-

406(c)(11). A violation of Tennessee Code Annotated section 39-17-417(a)(2) or (3)

involving heroin is a Class B felony. Tenn. Code Ann. § 39-17-417(b). An enhanced

criminal penalty is imposed if the drug transaction occurs within 1000 feet of a drug-free

school zone. See Tenn. Code Ann. § 39-17-432. Specifically, if a violation of Tennessee

Code Annotated section 39-17-417 occurs “on the grounds or facilities of any school or

within one thousand feet (1000') of the real property that comprises a public or private

elementary school, middle school, [or] secondary school, . . . [the offender] shall be

punished one classification higher than is provided[.]” Tenn. Code Ann. § 39-17-

432(b)(1).

A. Casual Exchange

The Defendant argues that the evidence does not prove beyond a reasonable doubt

that the transactions in this case were felonious deliveries or sales rather than casual

exchanges. Specifically, Defendant asserts that the following facts “are inconsistent with

a drug dealer selling and delivering a controlled substance”: all three of the drug deals

were initiated by Det. Turner and Mr. Blalock and included numerous phone calls to

establish the locations and times of the meetings; the Defendant “had to travel out of the

county to obtain the heroin” before exchanging it; the Defendant was always

accompanied by Ms. Arwood; “the small personal use quantity of the heroin”; and on one

occasion, the Defendant tried to get Mr. Blalock “to front the money” for the heroin

purchase. The State counters that the evidence is sufficient to support the Defendant’s

convictions because the “Defendant and [Mr. Blalock] made arrangements for the sale of

drugs prior to the actual exchange in every transaction in this case; each time they agreed

on a meeting place, subsequently met at the agreed-upon location, and then exchanged

money for drugs.”

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The offense of casual exchange is defined by Tennessee Code Annotated Section

39-17-418(a), which provides: “It is an offense for a person to knowingly possess or

casually exchange a controlled substance, unless the substance was obtained directly

from, or pursuant to, a valid prescription or order of a practitioner while acting in the

course of professional practice.” Additionally, the inference of casual exchange is

located in the second sentence of Tennessee Code Annotated section 39-17-419:

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. It may be

inferred from circumstances indicating a casual exchange among

individuals of a small amount of a controlled substance or substances that

the controlled substance or substances so exchanged were possessed not

with the purpose of selling or otherwise dispensing in violation of the

provisions of § 39-17-417(a). The inferences shall be transmitted to the

jury by the trial judge’s charge, and the jury will consider the inferences

along with the nature of the substance possessed when affixing the penalty.

An exchange means “to part with, give or transfer consideration of something

received as an equivalent,” and the term casual means “without design.” State v. Helton,

507 S.W.2d 117, 120 (Tenn. 1974). This court has concluded that the offense of casual

exchange “contemplates a spontaneous passing of a small amount of drugs, for instance,

at a party. Money may or may not be involved.” State v. Copeland, 983 S.W.2d 703,

708 (Tenn. Crim. App. 1998). A transaction will not be deemed a casual exchange if

there was a design or previous plan to make the exchange. State v. Carey, 914 S.W.2d

93, 96 (Tenn. Crim. App. 1995); Loveday v. State, 546 S.W.2d 822, 826 (Tenn. Crim.

App. 1976).

Whether a transfer is a casual exchange is to be determined from all facts and

circumstances of the case. Helton, 507 S.W.2d at 121.

Facts and circumstances indicating that the transaction is not a casual

exchange include a lack of evidence that the defendant gave the drugs to the

buyer out of friendship or as a friendly gesture, no evidence reflecting

anything other than a pecuniary motive for the transfer of the drugs, no

prior relationship between the defendant and the buyer, and no reason for

the defendant and the buyer to be together, other than for the buyer to

purchase drugs.

State v. Bernard Miguel Wallace, No. W2004-02124-CCA-R3-CD, 2006 WL 16315, at

*4 (Tenn. Crim. App. Jan. 3, 2006) (internal citations omitted) (quoting State v. Donald

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L. Haynes, No. E2000-00672-CCA-R3-CD, 2001 WL 416729, at *4 (Tenn. Crim. App.

Apr. 24, 2001)).

Here, the record contains no evidence that the Defendant was giving the drugs to

Mr. Blalock out of friendship or as a friendly gesture; to the contrary, the evidence shows

that the Defendant made the deals solely for the purpose of monetary gain. The

Defendant solicited Mr. Blalock at a Sunoco gas station, asking Mr. Blalock what type of

drugs he was using at the time, and the men exchanged telephone numbers. According to

Mr. Blalock, he did not socialize with the Defendant prior to this meeting nor during the

ongoing narcotics investigation. There was little to no interaction between the Defendant

and Mr. Blalock outside of the actual drug transactions. Mr. Blalock contacted the

Defendant for the purpose of buying drugs, and the record shows that the Defendant

perceived Mr. Blalock’s requests for heroin as ones of business and not friendship.

Regarding the details of the transactions, Mr. Blalock and the Defendant arranged

a meeting place, and their conversations were confined to the particulars of the drug

deals. The Defendant exchanged heroin for money on three different occasions within a

one-week period. The amount of heroin, the price, and the meeting places were clearly

established prior to each transaction. For example, Mr. Blalock attempted, although

unsuccessfully, to negotiate the price of the heroin. Moreover, Det. Turner testified that,

in his experience with illegal drug transactions, drug dealers did not carry large amounts

of drugs on their person when making a sale or delivery. Nonetheless, Mr. Blalock

testified that he saw additional bags of heroin in the Defendant’s lap during the third

heroin transaction. Additionally, the Defendant instructed Mr. Blalock on how to inject

the heroin and tried to get Mr. Blalock to help sell the Defendant’s drugs. Despite the

small amount of drugs and money involved in each drug buy, the transactions were not

ones without design.

The trial judge properly instructed the jury on the offense of sale and delivery of a

Schedule I controlled substance and on the lesser-included offense of casual exchange of

a controlled substance, including the casual exchange inference. Notwithstanding the

Defendant’s argument that the transactions were more properly seen as casual exchanges

rather than as felonious sales or deliveries, the jury, acting in its purview, reviewed the

evidence and found the Defendant guilty beyond a reasonable doubt of selling and

delivering heroin on three occasions. The evidence, viewed in the light most favorable to

the State, was more than sufficient to support the Defendant’s convictions. See State v.

Ziberia Marico Carero, No. E2015-00140-CCA-R3-CD, 2015 WL 9412836 (Tenn. Crim.

App. Dec. 22, 2015) (“Although [d]efendant claims that the transaction was a casual

exchange, the jury could conclude from the evidence, particularly from [d]efendant’s

action of adding additional rocks to the bag of cocaine when [the cooperating individual]

complained that [d]efendant was trying to provide less than the drugs were worth, that he

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knowingly delivered cocaine . . . as part of a drug sale rather than a casual exchange.

Moreover, [the cooperating individual] and [d]efendant made plans for the drug buy in

advance and had agreed on a purchase price.); State v. Jason Lyles, No. M2013-02618-

CCA-R3-CD, 2015 WL 3533719, at *5 (Tenn. Crim. App. June 5, 2015) (holding that the

offense of casual exchange did not contemplate the type of transactions established by the

evidence, which were for pecuniary gain; the amount of cocaine, the price, and the

meeting places were clearly established prior to each transaction; there was little to no

interaction between the defendant and the cooperating individual outside of the actual

drug transactions, and a detective testified that “the locations of transactions were often

changed during the course of the transaction” (citing State v. Michael Moore, No. 02C01-

9705-CR-00180, 1997 WL 703343, at *1 (Tenn. Crim. App. Nov. 13, 1997) (noting that

the evidence at trial illustrated that defendant was acting with a “definite design” and for

pecuniary gain); State v. David Humphrey, No. 01C01-9404-CR-00134, 1995 WL

50039, at *2 (Tenn. Crim. App. Feb. 8, 1995) (concluding that evidence that a

cooperating individual made two fifty-dollar purchases of cocaine from the defendant

established a “designed sale”))).

Moreover, the Defendant seems to imply that, because he was only found guilty in

Count 3 of casually exchanging 5.08 grams of marijuana under a similar factual scenario,

those same facts could not be used to support convictions for selling and delivering

heroin. However, given the amount of marijuana exchanged, the State had no choice but

to charge the Defendant with casual exchange in Count 3 because Tennessee Code

Annotated section 39-17-418(b) specifically provides that the distribution of less than

one-half ounce of marijuana (or 14.175 grams) is a casual exchange. The State explained

as much to the jury in its closing argument. The Defendant’s casual exchange conviction

has no impact on his guilt of the selling and delivering offenses.

B. School Property

Next, the Defendant contends that the proof did not establish that the September 5,

2012 drug transaction occurred within 1000 feet of the real property comprising a school.

Specifically, the Defendant argues that the “evidence demonstrate[s] that the real

property physically capable of comprising a public elementary school was more than

1000 feet from where the September 5, 2012 transaction took place[,]” noting that the

drug deal occurred outside of the school’s gate. While the Defendant does not challenge

Ms. Whaley’s expert qualifications, he does submit that her qualifications “may have

bearing as it relates to sufficiency of the evidence” in Counts 1 and 2. The State contends

that the evidence sufficiently established that the transaction occurred within a drug-free

school zone.

Tennessee Code Annotated section 39-17-432 plainly and unambiguously states

that the Act is intended “to serve as a deterrent” in order “to create drug-free zones for

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the purpose of providing vulnerable persons in this state an environment in which they

can learn, play and enjoy themselves without the distractions and dangers that are

incident to the occurrence of illegal drug activities” by imposing “enhanced and

mandatory minimum sentences.” Tenn. Code Ann. § 39-17-432(a). The State is not

required to prove that the defendant knew that he was committing an offense within 1000

feet of a school, nor even that school was in session at the time of the offense. Smith, 48

S.W.3d at 169. A defendant may be convicted under the statute if he or she was merely

traveling through the school zone while in possession of controlled substances, even if

the sale occurred elsewhere. See State v. Vasques, 221 S.W.3d 514, 523 (Tenn. 2007).

This court has explained the rationale for this rule:

[R]egardless of a defendant’s intent to distribute drugs within a school

zone: “the mere presence of substantial quantities of drugs increases the

risk of gunfire and other violence . . . . In addition, a person possessing

drugs may abandon them while fleeing from the police . . . . The drugs may

also be lost or stolen near a school and may then find their way into

students’ hands.”

Smith, 48 S.W.3d at 169 (quoting United States v. Rodriguez, 961 F.2d 1089, 1094 (3d

Cir. 1992)); see also State v. Arturo Jaimes-Garcia, No. M2009-00891-CCA-R3-CD,

2010 WL 5343286, at *14 (Tenn. Crim. App. Dec. 22, 2010).

In the case herein, the original meeting location was Kroger; however, the

Defendant was having vehicle trouble while parked at the Clarion Inn. Mr. Blalock was

headed towards the Clarion Inn, when the Ms. Arwood telephoned him and asked him to

meet at the Taco Bell. Cattlesburg Elementary School was to the northwest of the

restaurant. Both Det. Turner and Agt. McNamara observed the exact location that the

drug deal took place in the Taco Bell parking lot. Det. Turner, using a measuring wheel,

physically measured the distance from the location of the drug transaction to the school’s

boundaries. Det. Turner marked the distance of 1000 feet with cone number six on an

aerial map. According to Det. Turner, this location “was pretty much right at the

intersection of United Boulevard and the entrance to the school.”

Ms. Whaley, the director of Sevier County GIS, testified about the maps she

created showing the area where the transaction occurred and averred that they accurately

reflected how the property looked in 2012. According to Ms. Whaley’s testimony, the

school board owned two tracts of land—the initial tract of land being the school and

school’s grounds (Tract 3), and the second parcel was a right-of-way that was later

deeded to the school board and was the primary method of ingress and egress from the

school, including the route travelled by school buses. The matter of Ms. Whaley’s

testimony was submitted to the jury under the appropriate instruction regarding expert

witnesses, and the jury heard her testimony as to her qualifications and were

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appropriately instructed that it was in their discretion the weight and credibility to assign

to her testimony.

SPD school resource officer Tim Russell testified that he routinely patrolled the

school’s grounds, including the right-of-way, which parcel was even closer to the Taco

Bell parking lot than Tract 3. He also testified that the school board maintained the right-

of-way. According Ofc. Russell, when considering ownership of the school’s right-of-

way, the drug deal took place within approximately 150 feet from the school property

line. Moreover, the school’s sign was posted on the right-of-way and was approximately

250 feet from the drug buy’s location. Regardless, much ado has been made about the

right-of-way and whether that parcel comprises the real property of an elementary school

for purposes of the drug-free school zone statute. However, the placement of cone six

(1000 feet from the sale) was inside the boundaries of Tract 3, the initial tract of land

deeded to the school board comprising the school and its grounds. The evidence

reflecting the ownership of the right-of-way was superfluous and unnecessary to establish

that the drug deal took place within 1000 feet of the real property comprising Cattlesburg

Elementary School.

The Defendant also takes issue with the location of the gate, contending that only

the grounds inside of the gate comprised the real property of Cattlesburg Elementary

School and noting that cone six’s location was outside of the gate. Ofc. Russell testified

that the “gate across the driveway” was merely used when the school was on “full

lockdown.” We agree with the State that the Defendant has not provided us with any

authority, and we know of none, that real property comprising an elementary school

applies to only portions inside a gate and not the property as a whole. We believe to so

hold would be contrary to the intent stated in the statute. Cf. Vasques, 221 S.W.3d at 523

(rejecting defendant’s argument that simply traveling through a school zone is not enough

to apply the provisions of the Drug-Free School Zone Act); State v. Vernon Elliot

Lockhart, No. M2013-01275-CCA-R3-CD, 2015 WL 5244672, at *42 (Tenn. Crim. App.

Sept. 8, 2015) (applying school-zone enhancement even when a defendant was simply

traveling on an interstate and drove through a school zone), perm. app. denied (Tenn. Jan.

20, 2016).

The jury determined that the State proved beyond a reasonable doubt that the

transaction occurred within 1000 feet of Cattlesburg Elementary School. The evidence

was sufficient for a rational trier of fact to make this determination. As such, the

Defendant is not entitled to relief on this issue.

III. Sentencing

The Defendant challenges multiple aspects of the trial court’s sentencing

determination: (1) that the trial court improperly sentenced him as a Range II, multiple

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offender; (2) that the trial court imposed an excessive sentence by sentencing him to

maximum, consecutive sentences; and (3) that the trial court erred in denying his motion

for reduction of his overall sentence. Again, we deal with each issue one at a time.

A. Range Classification

First, the Defendant argues that the trial court erred by sentencing him to an

offender classification for which he was not lawfully noticed by the State. Specifically,

the Defendant submits that the State only provided notice that it sought to sentence him

as a career offender, and when the State failed to establish the necessary convictions for

that range, the trial court was precluded from considering any other status beyond that of

a Range I, standard offender. The State responds that the trial court properly sentenced

the Defendant as Range II, multiple offender.

Tennessee Code Annotated section 40-35-202(a) provides that if the State believes

that a defendant’s sentence should be enhanced, it “shall file a statement thereof with the

court and defense counsel not less than ten (10) days before trial or acceptance of a guilty

plea.” See also Tenn. R. Crim. P. 12.3(a) (“Written statements of the district attorney

giving notice that the defendant should be sentenced to an enhanced punishment . . . shall

be filed not less than ten (10) days prior to trial. If the notice is filed later than this time,

the trial judge shall grant the defendant, upon motion, a reasonable continuance of the

trial.”). This statement “must set forth the nature of the prior felony convictions, the

dates of the convictions and the identity of the courts of the convictions.” Id. The

purpose of the statement is to provide notice to a defendant that he is exposed to

enhanced sentencing beyond the standard range, to encourage plea bargain agreements, to

help the defendant make an educated decision before entering a plea of guilt, and to assist

with trial strategy. State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006) (citing State v.

Adams, 788 S.W.2d 557, 559 (Tenn. 1990); State v. Taylor, 63 S.W.3d 400, 412 (Tenn.

Crim. App. 2001)).

Regarding the accuracy of the information on the notice of intent, the Tennessee

Supreme Court has stated: “When a detail of the required information is omitted or

incorrect, the inquiry should be whether the notice was materially misleading. Where an

ambiguity or contradiction appears on the face of the notice, defendant has a duty to

inquire further.” Adams, 788 S.W.2d at 558. “While ‘perfect’ notice is not required, . . .

some notice meeting the minimal requirements of the statute be given.” Livingston, 197

S.W.3d at 713. At a minimum, the statute requires that the State file: “(1) written notice,

(2) clearly expressing the State’s intention to seek sentencing outside of the standard

offender range, (3) setting forth the nature of the prior felony conviction, the dates of the

convictions, and the identity of the courts of the convictions.” Id. at 713-14 (internal

footnote omitted). Ultimately, “when the State has substantially complied with [s]ection

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40-35-202(a), an accused . . . must show prejudice to obtain relief.” Adams, 788 S.W.2d

at 559.

Here, the State filed a notice of intent to seek enhanced punishment pursuant to

Tennessee Code Annotated section 40-35-202(a) on June 19, 2013, which was more than

a year before the trial and well before the ten-day requirement contained in the statute.

See Tenn. Code Ann. § 40-35-202(a). The State asserted that the Defendant “should be

sentenced as a [c]areer [o]ffender” and listed twelve prior felony convictions in the notice

of intent to seek enhanced punishment:

1. Aggravated burglary, a Class C felony, and theft of property valued at

$1000 or more, a Class D felony; case number 8688, Jefferson County,

Tennessee; offense date January 6, 2006; and sentence imposed date

September 25, 2006, three years to the TDOC;

2. Aggravated burglary, a Class C felony; case number 11322 count 1,

Sevier County, Tennessee; offense date January 5, 2006, and sentence

imposed date April 4, 2006, three years to the TDOC;

3. Aggravated burglary, a Class C felony; case number 11322 count 2,

Sevier County, Tennessee; offense date January 5, 2006, and sentence

imposed date April 4, 2006, three years to the TDOC;

4. Aggravated burglary, a Class C felony; case number 11322 count 3,

Sevier County, Tennessee; offense date January 5, 2006, and sentence

imposed date April 4, 2006, three years to the TDOC;

5. Aggravated burglary, a Class C felony; case number 11322 count 4,

Sevier County, Tennessee; offense date January 5, 2006, and sentence

imposed date April 4, 2006, three years to the TDOC;

6. Aggravated burglary, a Class C felony, theft of property valued at $1000

or more, a Class D felony, and aggravated assault, a Class C felony; case

number 10093, Sevier County, Tennessee; offense date October 7, 2003;

and sentence imposed date April 12, 2005, three years to the TDOC;

7. Aggravated burglary, a Class C felony, and theft of property valued at

$1000 or more, a Class D felony; case number 10199, Sevier County,

Tennessee; offense date December 15, 2003; and sentence imposed date

April 12, 2005, three years to the TDOC; and

-22-

8. Sale of oxycodone, a Class C felony; case number 9784, Sevier County,

Tennessee; offense date December 11, 2002; and sentence imposed date

March 30, 2004, four years to the TDOC.

Certified judgment forms reflecting ten of the twelve convictions listed above were made

exhibits to the sentencing hearing. Two convictions, the aggravated burglaries in case

numbers 10093 and 10199, were never mentioned by the State at the sentencing hearing.6

The State did introduce an additional certified judgment in case number 11322 for count

6—theft of property valued at $1000 or more, a Class D felony; offense date January 5,

2006; with a sentence of three years to the TDOC (no sentence imposed date reflected).

The Defendant objected to using this last referenced judgment for range classification

purposes because it was not contained in the State’s notice. The State responded that it

was not relying on this judgment document for range enhancement purposes but merely

as “evidence of other criminal conduct”; the Defendant withdrew his objection.

The Defendant stands convicted of two Class A felonies and four Class B felonies.

As relevant here, a career offender is a defendant who has “[a]ny combination of six (6)

or more Class A, B or C prior felony convictions, and the defendant’s conviction offense

is a Class A, B or C felony[.]” Tenn. Code Ann. § 40-35-108(a)(1). A persistent

offender is a defendant who has received “[a]ny combination of five (5) or more prior

felony convictions within the conviction class or higher or within the next two (2) lower

felony classes, where applicable[.]” Tenn. Code Ann. § 40-35-107(a)(1). A defendant is

classified as a Range II, multiple offender when the defendant has received “[a] minimum

of two (2) but not more than four (4) prior felony convictions within the conviction class,

a higher class, or within the next two (2) lower felony classes, where applicable[.]”

Tenn. Code Ann. § 40-35-106(a)(1). In order to label a defendant as a multiple,

persistent, or career offender, the trial court has to determine beyond a reasonable doubt

that the defendant has the requisite prior felonies. Tenn. Code Ann. §§ 40-35-106(c), -

107(c), -108(c).

Referencing the relevant temporal code sections, each range classification

included the following caveat:

Convictions for multiple felonies committed as part of a single

course of conduct within twenty-four (24) hours constitute one (1)

conviction for the purpose of determining prior convictions; however, acts

resulting in bodily injury or threatened bodily injury to the victim or

victims shall not be construed to be a single course of conduct[.]

6

Photocopies of certified judgments for both of these aggravated burglaries were attached to the

enhancement notice filed by the State.

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Tenn. Code Ann. §§ 40-35-106(b)(4), -107(b)(4), -108(b)(4) (1997).7 This is commonly

known as the twenty-four-hour merger rule. The legislature amended the statute in 2009

to also exclude aggravated burglary from the twenty-four-hour merger rule, but the

aggravated burglaries in this case occurred before 2009. See Tenn. Code Ann. §§ 40-35-

106(b)(4), -107(b)(4), -108(b)(4) (2010). The Compiler’s Notes to the amended versions

of each section make it clear that only aggravated burglaries “occurring on or after

August 17, 2009, shall count as prior convictions for the purposes enumerated in this

act.” Tenn. Code Ann. §§ 40-35-106, Compiler’s Notes; -107, Compiler’s Notes; -108,

Compiler’s Notes; see also State v. Kenneth Edward Watts, No. E2010-00553-CCA-R3-

CD, 2011 WL 5517000, at *6 (Tenn. Crim. App. Nov. 8, 2011) (noting this change to the

twenty-four-hour merger rule).

Additionally, we note that the Defendant’s offenses in case numbers 8688 and

11322 were committed on consecutive days, January 5 and 6 of 2006. Various panels of

this court have held “that it is the responsibility of the defendant to establish that offenses

which were committed on consecutive days occurred within twenty-four hours of each

other.” State v. Gregory L. Sain, No. M2006-00865-CCA-R3-CD, 2008 WL 624924, at

*12 (Tenn. Crim. App. Mar. 6, 2008) (quoting State v. Freddie T. Inman, Jr., No. W2004-

02371-CCA-R3-CD, 2005 WL 729149, at *10 (Tenn. Crim. App. Mar. 30, 2005))

(internal quotation marks omitted); see also State v. John Roy Polly, No. M1999-00278-

CCA-R3-CD, 2000 WL 1606586, at *3 (Tenn. Crim. App. Oct. 27, 2000) (holding that

“where the defendant seeks the application of the twenty-four hour rule and the relevant

convictions occur on different days, it is the defendant’s responsibility to demonstrate

that the two offenses occurred within twenty-four hours of each other”); Watts, 2011 WL

5517000, at *7 (citing John Roy Polly with approval). In addition, we previously have

held that “[t]he date of adjudication or the entry of judgment is irrelevant when applying

the twenty-four-hour merger rule.” State v. David Anthony Lee, No. E1999-02537-

CCA-R3-CD, 2000 WL 1478570, at *2 (Tenn. Crim. App. Oct. 6, 2000).

At the sentencing hearing, the Defendant argued that the four aggravated burglary

convictions comprising case number 11322 should be merged because they occurred on

the same date January 5, 2006, and were therefore subject to the twenty-four-hour merger

rule under the statute applicable to the Defendant. The Defendant also asserted that case

numbers 8688 and 11322 occurred within twenty-four hours of each other on January 5

7

In 2005, these sections were amended to provide, “Except for convictions for which the statutory

elements include serious bodily injury, bodily injury, threatened serious bodily injury, or threatened

bodily injury to the victim or victims, convictions for multiple felonies committed within the same

twenty-four-hour period constitute one (1) conviction for the purpose of determining prior convictions.”

Tenn. Code Ann. §§ 40-35-106(b)(4), -107(b)(4), -108(b)(4) (2005).

-24-

and 6 of 2006 and, therefore, should merge as a single course of conduct.8 The State

conceded that it had not considered the old law regarding merger of aggravated burglaries

and agreed that the four aggravated burglaries in case number 11322 should merge.

Thereafter, the trial court merged the aggravated burglaries in case number 11322, but

refused to merge cases 8688 and 11322. Accordingly, the trial court ruled that the State

had established four C felonies in case numbers 8688, 11322, 10093,9 and 9784, and

sentenced the Defendant as Range II, multiple offender.

Neither party challenges the trial court’s range determination on appeal as it

pertains to the number of convictions found; the issue presented is one of notice.10 All of

the convictions utilized by the trial court were included in the State’s enhancement notice

and were supported by certified copies of judgments of conviction introduced at the

sentencing. The information contained in the notice was accurate, setting forth the nature

of the prior felony convictions, the dates of the convictions, and the identity of the courts

of the convictions. The Defendant does not dispute these facts; he simply argues that the

notice of the higher range classification does not incorporate the lesser classification. We

disagree.

Here, the notice filed by the State gave “fair notice to accused that he is exposed to

other than standard sentencing.” Adams, 788 S.W.2d at 559. Furthermore, the

Defendant was not misled or surprised by the State’s seeking enhanced punishment.

Thus, the notice accomplished the purpose of the statute. See State v. Chase, 873 S.W.2d

8

Again, it is the Defendant’s responsibility to establish that offenses which were committed on

consecutive days and occurred within twenty-four hours of each other. The Defendant’s two cases

occurred on consecutive days in two different counties. The record is devoid of any proof, other than the

Defendant’s bald assertion at the sentencing hearing, to support a claim for merger under the twenty-four-

hour rule. See, e.g., Watts, 2011 WL 5517000, at *7 (concluding same); State v. Cory Shane Rollins, No.

E2008-01407-CCA-R3-CD, 2010 WL 342653, at *15 (Tenn. Crim. App. Knoxville, Feb. 1, 2010) (“The

[d]efendant proved that he committed the offenses on two consecutive days, but he did not establish a

time-frame proving that the offenses occurred within twenty-four hours of each other.”).

9

The State only presented evidence of the aggravated assault conviction in case number 10093.

However, we note that this aggravated assault conviction could have been separated from the aggravated

burglary in that same case because aggravated assault is an offense either “resulting in bodily injury or

threaten[ing] bodily injury[.]” See Tenn. Code Ann. §§ 40-35-106(b)(4), -107(b)(4), -108(b)(4) (1997).

Nonetheless, the State never entered a judgment or referenced the aggravated burglary conviction in case

10093 at the sentencing hearing, although a certified copy was attached to the enhancement notice.

10

Based upon the evidence presented by the State at the sentencing hearing, we cannot find any error

with the trial court’s decision regarding the Defendant’s range classification. However, we note that had

the State introduced proof of the two aggravated burglary convictions in case numbers 10093 and 10199,

the Defendant would have qualified as a career offender with six Class C felony convictions. We make

this statement in order to properly put into focus the Defendant’s argument that his sentence was

excessive, which we will address in the next section of this opinion.

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7, 9 (Tenn. Crim. App. 1993). Based on his prior convictions presented by the State at

the sentencing hearing, the trial court sentenced the Defendant within the appropriate

range, which was actually a lesser range than that listed on the notice of intent to seek

enhanced punishment. The notice in this case was clearly sufficient under Tennessee

Code Annotated section 40-35-202(a). See, e.g., State v. Taylor, 63 S.W.3d 400, 412-13

(Tenn. Crim. App. 2001) (holding that “Notice of Enhancement” document, which listed

the defendant’s seven prior convictions, but did not specify which range applied,

nonetheless, substantially complied with notice requirements); State v. Timothy W.

Sparrow, No. M2012-00532-CCA-R3-CD, 2013 WL 1089098, at *26-27 (Tenn. Crim.

App. Mar. 14, 2013) (finding substantial compliance where an “all-purpose notice”

contained the defendant’s entire criminal history even though the notice did not identify

range); State v. James Allen Gooch, Jr., No. M2011-01135-CCA-R3-CD, 2012 WL

4358195, at *11-14 (Tenn. Crim. App. Sept. 25, 2012) (finding substantial compliance

where the notice identified the range as a career offender, even though the listed prior

convictions only supported multiple offender status, but an additional prior conviction

presented at the sentencing hearing established persistent offender range). Accordingly,

we conclude that the trial court did not err in sentencing the Defendant as a Range, II

multiple offender.

B. Excessive Sentence

After determining that the Defendant was a Range II, multiple offender, the trial

court imposed the maximum term of forty years for the Class A felony conviction and

twenty years for each Class B felony conviction. See Tenn. Code Ann. § 40-35-112(b).

The trial court merged the three heroin delivery convictions into the corresponding heroin

sale convictions and aligned these three sentences consecutively, resulting in a total

effective sentence of eighty years’ incarceration.11 In so concluding, the trial court

offered the following rationale in support of its sentencing decision:

In this case, the [c]ourt has considered the pre-sentence investigation

report, the exhibits, the proof introduced at trial, the records of previous

convictions, the principles of sentencing under the sentencing laws,

statements and arguments of counsel, and the entire record in this cause.

From all of which the court finds as follows. . . .

....

The [c]ourt . . . finds that [the Defendant’s] records of conviction as

shown by the certified copies of convictions in Exhibits 2 through 11, and

as shown in the pre-sentence investigation report, is extensive and that the

11

The trial court imposed a concurrent sentence of eleven months and twenty-nine days for the

misdemeanor casual exchange conviction. Like the sufficiency of the evidence supporting this

conviction, the Defendant does not challenge the sentence on appeal.

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enhancement factor as set out in T.C.A. § 40-35-114(1), that he has

numerous criminal convictions in addition to those necessary to establish

his range as a multiple offender, and the [c]ourt finds that aggravated

enhancing factor.

The [c]ourt further finds that there are no mitigating factors as

shown.

The [c]ourt therefore finds that the appropriate sentence for each

offense is the maximum penalty for each offense. The [c]ourt further finds

by a preponderance of the evidence that these sentences should run

consecutively pursuant to T.C.A. § 40-35-115. He is a professional

criminal, as shown not only by his extensive criminal record, but the facts

at trial show that he was engaging in a continuing criminal enterprise to

profit, that is selling of drugs. This substantial criminal record further

supports the imposition of consecutive sentences. The State urges that the

sale of heroin further qualifies him as a dangerous offender. Certainly the

sale of a dangerous drug, such as heroin, coupled with instructions given

for intravenous use, as shown at trial, would qualify his conduct as creating

a danger to others. The [c]ourt does find that this conduct does make him a

dangerous offender. However, [t]he court relies more heavily on the

findings that he is a professional criminal with a very extensive criminal

record.

The [c]ourt further finds that the consecutive sentences with an

aggregate of eighty years is reasonably relat[ed] to the severity of the

crimes for which he is convicted when considering his prior record and all

the circumstances.

The Defendant argues that the trial court imposed an excessive sentence by

sentencing him to the maximum sentence within the range for each felony conviction and

by imposing consecutive sentences. The Defendant submits that his overall eighty-year

sentence was not consistent with the purposes and principles of the Sentencing Act. The

State responds that the trial court appropriately exercised its discretion when sentencing

the Defendant for his crimes.

Before a trial court imposes a sentence upon a convicted criminal defendant, it

must consider: (a) the evidence adduced at the trial and the sentencing hearing; (b) the

presentence report; (c) the principles of sentencing and arguments as to sentencing

alternatives; (d) the nature and characteristics of the criminal conduct involved; (e)

evidence and information offered by the parties on the enhancement and mitigating

factors set forth in Tennessee Code Annotated sections 40-35-113 and 40-35-114; (f) any

statistical information provided by the Administrative Office of the Courts as to

Tennessee sentencing practices for similar offenses; and (g) any statement the defendant

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wishes to make in the defendant’s own behalf about sentencing. Tenn. Code Ann. § 40-

35-210(b). When an accused challenges the length and manner of service of a sentence,

this court reviews the trial court’s sentencing determination under an abuse of discretion

standard accompanied by a presumption of reasonableness. State v. Bise, 380 S.W.3d

682, 707 (Tenn. 2012). Moreover, appellate courts may not disturb the sentence even if

we had preferred a different result. See State v. Carter, 254 S.W.3d 335, 346 (Tenn.

2007). The party challenging the sentence imposed by the trial court has the burden of

establishing that the sentence is erroneous. Tenn. Code Ann. § 40-35-401, Sentencing

Comm’n Cmts.; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Regarding the length of his various sentences, the Defendant does not contest the

trial court’s application of enhancement factor (1) or argue that any mitigating factors

applied. Instead, the Defendant claims that his terms are excessive under the sentencing

considerations outlined in Tennessee Code Annotated sections 40-35-103, 40-35-210,

and the principles and purposes codified at Tennessee Code Annotated sections 40-35-

102 and 40-35-103. He notes the relatively small amounts of heroin involved in each

drug transaction and that he will have to serve one hundred percent of the minimum

sentence (i.e., twenty-five years) for the drug-free school zone conviction before being

eligible for parole, see Tennessee Code Annotated section 39-17-432(c) (stating that a

defendant sentenced for a drug-free school zone violation “shall be required to serve at

least the minimum sentence for the defendant’s appropriate range of sentence”).

Moreover, while discussing his drug-free school zone sentence of forty years, the

Defendant states that “[t]he trial court did not state any reason for imposing such an

excessive sentence upon [the Defendant].”

In accordance with the broad discretion now afforded a trial court’s sentencing

decision, “misapplication of an enhancement or mitigating factor does not invalidate the

sentence imposed unless the trial court wholly departed from the 1989 Act, as amended

in 2005.” Bise, 380 S.W.3d at 706. This court will uphold the trial court’s sentencing

decision “so long as it is within the appropriate range and the record demonstrates that

the sentence is otherwise in compliance with the purposes and principles listed by

statute.” Id. at 709-10. Those purposes and principles include “the imposition of a

sentence justly deserved in relation to the seriousness of the offense,” Tennessee Code

Annotated section 40-35-102(1), a punishment sufficient “to prevent crime and promote

respect for the law,” Tennessee Code Annotated section 40-35-102(3), and consideration

of a defendant’s “potential or lack of potential for . . . rehabilitation,” Tennessee Code

Annotated section 40-35-103(5). Carter, 254 S.W.3d at 344.

It is clear from the transcript that the trial court, at the outset of the sentencing

hearing, followed all necessary sentencing considerations delineated in section 40-35-

210. Moreover, the record demonstrates that the Defendant’s within-range sentences are

-28-

otherwise in compliance with the purposes and principles of sentencing. The trial court

relying on the eleven certified copies of conviction entered into evidence and the pre-

sentence investigation report, applied factor (1)—that the Defendant had a previous

history of criminal convictions, or criminal behavior, in addition to those necessary to

establish the appropriate range. See Tenn. Code Ann. § 40-35-114(1). The court found

this to be an “aggravated enhancing factor.” This was the trial court’s rationale.

In an attempt to minimize his criminal history, the Defendant notes that he neither

“admitted nor a jury found the criminal histories contained in the [p]resentence

[i]nvestigation [r]eport other than the convictions introduced at sentencing in the State’s

unsuccessful attempt at declaring [the Defendant] a [c]areer [o]ffender[.]” He also states

that the “eight convictions introduced by certified copy spanned a period of four years

and five of them occurred on January 5, 2006.” First, there were eleven certified

judgments of conviction entered at the sentencing hearing, not eight, and only two of the

Defendant’s Class C felony convictions were needed to establish his Range II status.

Also, the indictments in case number 11322, entered into evidence by the Defendant,

reflected four different victims of his aggravated burglaries. Moreover, there were two

other aggravated burglary convictions established by certified copies attached to the

range enhancement notice. Finally, the trial court properly relied upon information in the

presentence report in making its sentencing determination. It is well established that

reliable hearsay, such as a presentence report, is admissible during sentencing. See Tenn.

Code Ann. § 40-35-209 (“The rules of evidence shall apply [in sentencing hearings],

except that reliable hearsay . . . may be admitted if the opposing party is accorded a fair

opportunity to rebut any hearsay evidence so admitted[.]”); State v. Baker, 956 S.W.2d 8,

17 (Tenn. Crim. App. 1997). Importantly, a trial court is required to consider the

presentence report before imposing a sentence. Tenn. Code Ann. § 40-35-210(b)(2).

Upon our review of the pre-sentence report, we noticed that the Defendant had a

plethora of additional convictions, both misdemeanors and felonies, including traffic

offenses and more drug, theft, and assault convictions. He also violated his parole in

2009 and had multiple probation violations. The Defendant began his criminal career at

the age of fourteen and was only thirty-five years old at the time the pre-sentence report

was ordered in November 2014. In light of the Defendant’s criminal history,

enhancement factor (1) was more than sufficient to justify the trial court’s imposition of

the maximum sentences.

The Defendant also challenges the imposition of consecutive sentences, claiming

that his overall sentence is excessive under the purposes and principles of sentencing and

that “the driving force behind his sentence was to give [the Defendant] the maximum

sentence he could receive since he was not a career offender.” According to the

Defendant, “the trial court gave no particular purpose it was imposing a sentence in

-29-

excess of a life sentence of [sixty] years[,]” and the trial court did not provide “articulated

reasons” for the imposition of consecutive sentencing allowing for meaningful appellate

review.

A trial court may order multiple offenses to be served consecutively if it finds by a

preponderance of the evidence that a defendant fits into at least one of the seven

categories in section 40-35-115(b). Tenn. Code Ann. § 40-35-115(b). “Any one of these

grounds is a sufficient basis for the imposition of consecutive sentences.” State v.

Pollard, 432 S.W.3d 851, 862 (Tenn. 2013) (citing State v. Dickson, 413 S.W.3d 735,

748 (Tenn. 2013)). Additionally, when the imposition of consecutive sentences is based

on application of the dangerous offender criterion, the court must also find “that the terms

imposed are reasonably related to the severity of the offenses committed and are

necessary in order to protect the public from further criminal acts by the offender.” State

v. Wilkerson, 905 S.W.2d 938, 939 (Tenn. 1995); see also Pollard, 432 S.W.3d at 863-

64; State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).

Furthermore, our supreme court has held that “the abuse of discretion standard,

accompanied by a presumption of reasonableness, applies to consecutive sentencing

determinations.” Pollard, 432 S.W.3d at 860. This court must give “deference to the trial

court’s exercise of its discretionary authority to impose consecutive sentences if it has

provided reasons on the record establishing at least one of the seven grounds listed in

Tennessee Code Annotated section 40-35-115(b).” Id. at 861. “So long as a trial court

properly articulates reasons for ordering consecutive sentences, thereby providing a basis

for meaningful appellate review, the sentences will be presumed reasonable and, absent

an abuse of discretion, upheld on appeal.” Id. (citing Tenn. R. Crim. P. 32(c)(1); Bise,

380 S.W.3d at 705). However, when imposing consecutive sentences, the court must still

consider the general sentencing principles that each sentence imposed shall be “justly

deserved in relation to the seriousness of the offense,” “no greater than that deserved for

the offense committed,” and “the least severe measure necessary to achieve the purposes

for which the sentence is imposed.” Tenn. Code Ann. §§ 40-35-102(1), -103(2), -103(4);

State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

Here, from our review of the transcript, the trial court imposed consecutive

sentences based upon three criteria: (1) The Defendant was a professional criminal who

had knowingly devoted the Defendant’s life to criminal acts as a major source of

livelihood; (2) The Defendant was an offender whose record of criminal activity was

extensive; and (3) The Defendant was a dangerous offender whose behavior indicates

little or no regard for human life, and no hesitation about committing a crime in which

the risk to human life is high.12 See Tenn. Code Ann. § 40-35-115(1), (2), (4). The trial

12

Both parties focus on the professional criminal category as the trial court’s basis for ordering

consecutive sentences. However, we think the trial court’s ruling supports a conclusion that it utilized the

-30-

court also determined that the aggregate sentence was “reasonably relat[ed] to the

severity of the crimes for which he is convicted when considering his prior record and all

the circumstances.” Contrary to the Defendant’s assertion, these are articulated reasons

for ordering consecutive sentences and, thus, provide us with a basis for meaningful

appellate review. Moreover, the trial court specifically stated that it was relying “more

heavily” on the first two criteria rather than the dangerous offender category. Because

only one criterion is needed to support the appropriateness of consecutive sentencing, we

decline to address the Defendant’s classification as a dangerous offender or his argument

on appeal in that regard.

The Defendant relies upon State v. Biggs, 482 S.W.3d 923 (Tenn. Crim. App.

2015), in support of his argument that the trial court erred by imposing consecutive

service because his effective sentence is not justly deserved based upon the seriousness of

the offenses and is not the least severe measure necessary to achieve the purposes for

which the sentences were imposed. In Biggs, the defendant pled guilty to four counts of

aggravated robbery, during which the defendant displayed a gun and demanded money

from employees at various businesses. The defendant also pled guilty to two counts of

misdemeanor theft, during which the defendant took bags of potting soil from Walmart

and took money from a convenience store’s cash register. The defendant pled guilty to

attempted aggravated robbery, during which he attempted to take money from another

cash register. The cashier closed the register drawer on the defendant’s hand; the

defendant pulled out a gun; and a struggle ensued. The defendant left the scene without

the gun, which was later determined to be a toy. The toy gun was also used in the four

aggravated robberies to which the defendant pled guilty. 482 S.W.3d at 925.

The trial court in Biggs determined that the defendant was a Range III, persistent

offender based upon the defendant’s previous convictions. The court imposed partial

consecutive service and ordered two of the defendant’s twenty-two-year sentences for

aggravated robbery be served consecutively, for an effective forty-four-year sentence to

be served at 85%. The trial court imposed consecutive sentences based upon the

defendant’s having an extensive criminal history and the defendant’s serving a sentence

on probation at the time he committed the offenses. The defendant had been previously

convicted of forgery, evading arrest, theft, casual exchange, possession of cocaine,

possession of marijuana, and speeding, and he admitted he was on probation at the time

he committed the offenses. Relative to imposing a just and deserved sentence based upon

the offense, the trial court noted that full consecutive service was not warranted but that

partial consecutive service produced a fair and just sentence. 482 S.W.3d at 926.

On appeal, the Biggs majority concluded that the trial court erred by ordering

partial consecutive service. The majority focused, in part, on the circumstances of the

factor that the Defendant possessed an extensive criminal record as well.

-31-

offenses, noting that the robberies were committed with a plastic gun, that none of the

victims were injured, and that two victims knew the gun was plastic. The majority also

focused on the defendant’s age of forty-nine and lack of previous convictions for violent

offenses. This court concluded that the sentence was tantamount to a life sentence and

that forty-four years was not deserved in relation to the offenses involved and was not the

least severe measure necessary to achieve the purposes of sentencing. 482 S.W.3d at

927.

In the present case, however, we conclude that the record does not reflect the trial

court abused its discretion by ordering consecutive service. Contrary to the argument

presented by the Defendant in his reply brief, there is evidence in the record that he

obtained his livelihood almost entirely through criminal activity.13 The pre-sentence

report reflects that the Defendant dropped out of high school after the tenth grade. The

Defendant also reported marijuana usage beginning at age sixteen, which escalated to

opiates and included a three-hundred-dollar-a-day heroin habit by the time of his

incarceration. His status as an affiliate with the “Aryan Nation” was “confirmed” in

2008. The Defendant informed that he resided with his father and that he was employed

as a painter with “Cold Springs Paint and Stain,” a family-owned business, prior to his

incarceration. The only other stated employment was with “Click’s Paint and Stain” for

$1200 per week from 2004 to 2006.

Turning to the facts of the drug deals in this case, the Defendant solicited Mr.

Blalock at a gas station, explained to the Mr. Blalock how to use heroin intravenously,

tried to get Mr. Blalock to sell drugs for him, and was seen in possession of multiple

small bags of heroin. We conclude that these facts, coupled with the Defendant’s

criminal history as outlined above, are more than sufficient to support the trial court’s

application of factors (1) and (2) for consecutive sentencing, i.e., that the Defendant was

a professional criminal who knowingly devoted his life to criminal acts as a major source

of livelihood14 and that the Defendant was an offender with an extensive criminal record.

13

In his reply brief, and for the first time, the Defendant argues that this is a case of sentence entrapment

because Det. Turner “determined the number of transactions, the amount of each transaction, or both.”

However, issues raised for the first time in a reply brief are waived. See State v. Walter Francis

Fitzpatrick, III, No. E2014-01864-CCA-R3-CD, 2015 WL 5242915, at *8 (Tenn. Crim. App. Sept. 8,

2015), perm. app denied (Tenn. Feb. 18, 2016); State v. Franklin Sanders, No. 02C01-9305-CR-00102,

1994 WL 413465, at *10 (Tenn. Crim. App. Aug. 10, 1994) (“The defendant cannot change issues from

his original brief to his reply brief any more than he can change theories from the trial court to the

appellate court.”), aff’d, 923 S.W.2d 540 (Tenn. 1996); see also Tenn. Ct. Crim. App. R. 10(b); Tenn. R.

App. P. 27(a)(7); Carruthers v. State, 814 S.W.2d 64, 69 (Tenn. Crim. App. 1991). Consequently, we

decline to address this issue.

14

The Defendant complains that the trial court did not state that he “knowingly devoted his life to

criminal acts as a major source of livelihood.” However, the trial court did find that the Defendant “was

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A trial court’s sentencing determinations are fashioned to the individual offender. See

State v. Austin Dean, Nos. E2015-01217-CCA-R3-CD & E2015-02366-CCA-R3-CD,

2016 WL 5864631, at *6 (Tenn. Crim. App. Oct. 7, 2016) (declining to extend Biggs

under the facts presented in that case). The Defendant’s effective eighty-year sentence in

this case is supported by the record, and Biggs affords him no relief.

According to the Defendant, “the driving force behind his sentence was to give

[the Defendant] the maximum sentence he could receive since he was not a career

offender.” As noted above, the Defendant had a sufficient number of convictions to

qualify as a career offender, but the State failed to provide all of the necessary

documentation at the sentencing hearing. Also, the Defendant’s criminal record is indeed

“substantial,” as noted by the trial court. Our review of the sentencing hearing transcript

indicates that the trial court considered the evidence, the enhancement and mitigating

factors, and the purposes and principles of sentencing prior to imposing consecutive,

within-range sentences of confinement in this case. Therefore, the Defendant has failed

to establish that the trial court abused its discretion in sentencing the Defendant to an

effective eighty years’ incarceration, and he is not entitled to relief.

C. Motion to Reduce Sentence

On May 5, 2015, the Defendant filed a motion pursuant to Rule 35 of the

Tennessee Rules of Criminal Procedure to reduce his overall eighty-year sentence. In his

motion, the Defendant again noted the relatively small amount of heroin involved in the

three controlled buys: “[T]he jury convicted the Defendant of selling a collective amount

of heroin[] of 0.19 grams, which equates to 0.0004187829815 pounds.” (Footnote

omitted). He then stated that evidence of these three drug deals “was used by the Knox

County District Attorney General’s office in coordination and complicity with the Sevier

County District Attorney General’s office to prosecute [him] on [twelve] separate counts

of conspiracy in Knox County,” and he attached a copy of the indictment. The Defendant

asserted that he was thereafter convicted in Knox County of conspiring to sell or deliver

150 grams or more of heroin in violation of the drug-free school zone statute and

received a sentence of twenty-five years for that conviction.15 According to the

Defendant, his “individual sentence and collective sentences” amounted to excessive

punishment.

engaging in a continuing criminal enterprise to profit, that is selling of drugs.” This finding is sufficient

to satisfy the trial court’s application of the professional criminal criterion.

15

However, the judgment form attached as an exhibit to the motion provides that this charge was

dismissed or nolle prosecui. Moreover, the Defendant gives no indication of the concurrent or

consecutive nature of this twenty-five-year sentence.

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Defense counsel argued the motion to reduce the Defendant’s sentence in

conjunction with the hearing on the motion for new trial. No additional evidence on the

motion to reduce the Defendant’s sentence was presented at the hearing. Based solely

upon the argument of counsel, the Defendant requested that the trial court reconsider its

position “in the interest of justice” and impose a twenty-five-year sentence. In denying

the Defendant’s motion to reduce his sentence, the trial court reasoned that it considered

“just about everything that you can consider” at the sentencing hearing, “including all

those things that are required” by statute; recalled that the Defendant had “a horrible

criminal history, extensive criminal history, multiple, multiple home burglaries, prior

drug cases, crime of violence, aggravated assault”; and held that the sentence was

appropriate “under our sentencing law and the facts and circumstances and the

background” of the Defendant.

On appeal, the Defendant contends that the trial court erred in denying his Rule 35

motion for reduction of sentence. After setting forth the applicable legal principles

governing Rule 35, the Defendant presents his argument in a two-sentence paragraph. He

submits,

For the reasons stated above regarding sentencing at pages 5 through

16, which are specifically incorporated herein by reference as though set

out verbatim,16 [the Defendant’s] [eighty-]year sentence for the transfer of

0.19 grams of heroin during three random drug transactions over a seven-

day period of time is illogical, unreasonable and exceeds any principle or

purpose of the Tennessee Sentencing Reform Act, as amended.

(Footnote added). He concludes that the “trial court abused its discretion in allowing this

sentence to stand after [his] Rule 35 motion for reduction of sentence.” The State

responds that the Defendant “has not provided any proof that his sentence is unjust” and

that, therefore, no abuse of discretion occurred.

Tennessee Rule of Criminal Procedure 35 provides that “[t]he trial court may

reduce a sentence upon motion filed within 120 days after the date the sentence is

imposed or probation is revoked.” Tenn. R. Crim. P. 35(a). The rule “does not vest the

defendant with a remedy as of right.” State v. Elvin Williams, No. M2006-00287-CCA-

R3-CO, 2007 WL 551289, at *1 (Tenn. Crim. App. Feb. 27, 2007). According to the

Advisory Commission Comments to Rule 35, the “intent of this rule is to allow

modifications only in circumstances where an alteration of the sentence may be proper in

the interests of justice. The modification permitted by this rule is any modification

16

Pages 5 through 16 deal with the Defendant’s various challenges to the trial court’s sentencing

determination, including his range classification, the length of his individual sentences, and the

imposition of consecutive sentencing.

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otherwise permitted by law when the judge originally imposed [the] sentence[.]” When

the appellate court reviews the denial of relief on a motion to reduce or modify a

sentence, the standard is whether the trial court abused its discretion. State v. Ruiz, 204

S.W.3d 772, 778 (Tenn. 2006); State v. Irick, 861 S.W.2d 375, 376 (Tenn. Crim. App.

1993).

The trial court considered the merits of the Defendant’s motion and conducted a

full review of the matter before denying relief. The record does not establish that the

Defendant presented “the trial court with evidence of a change in circumstances sufficient

to warrant [reduction of his eighty-year] sentence ‘in the interests of justice.’” See State

v. Sabrina Howard, No. W2014-02309-CCA-R3-CD, 2015 WL 8334629, at *3 (Tenn.

Crim. App. Dec. 9, 2015) (quoting Tenn. R. Crim. P. 35, Advisory Comm’n Cmts). In

fact, the Defendant’s argument on appeal does not focus on any abuse of discretion by the

trial court in denying the motion but rather relates to the trial court’s allegedly improper

sentencing at the sentencing hearing. This is merely an attempt to relitigate his

sentencing issues, which we have already determined to be without merit. Thus, we

cannot conclude that the trial court abused its discretion when it denied relief. See, e.g.,

State v. Kristopher Lee Colbert, No. M2012-00225-CCA-R3-CD, 2012 WL 5543520, at

*4 (Tenn. Crim. App. Nov. 9, 2012) (affirming denial of Rule 35 motion under similar

circumstances and noting that “the trial court followed proper sentencing procedures,”

that the defendant’s sentence was “in the range of punishment provided for his offenses,”

and that “the sentence appear[ed] to be consistent with applicable sentencing principles

and guidelines”); State v. Tianje R. Johnson, No. M2010-01159-CCA-R3-CD, 2011 WL

5551677, at *7 (Tenn. Crim. App. Nov. 15, 2011) (finding no abuse of discretion in trial

court’s denial of Rule 35 motion to modify the sentence that advanced the same

arguments and evidence submitted at the sentencing hearing).

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court.

_________________________________

D. KELLY THOMAS, JR., JUDGE

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