State of Tennessee v. William Darnell Richardson

08/17/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on briefs April 13, 2021

STATE OF TENNESSEE v. WILLIAM DARNELL RICHARDSON

Appeal from the Circuit Court for Lawrence County

No. 35421 Stella Hargrove, Judge

No. M2020-00286-CCA-R3-CD

The defendant, William Darnell Richardson, appeals his Lawrence County Circuit Court

jury convictions of possession of 0.5 grams or more of a Schedule II controlled substance

with intent to sell, simple possession of a Schedule IV controlled substance, possession of

drug paraphernalia, and driving on a revoked or suspended license, arguing that he is

entitled to plain error relief for inappropriate and prejudicial statements made by the

prosecutor during closing arguments, that the trial court erred by admitting evidence

contravening the rules of hearsay, and that the evidence was insufficient to support his

conviction of possession of 0.5 grams or more of methamphetamine with intent to sell.

Because the trial court erred by admitting certain hearsay evidence, we reverse the

defendant’s conviction for simple possession of Alprazolam and remand for a new trial on

that charge. Because the evidence was insufficient to sustain the defendant’s conviction of

driving on a revoked or suspended license, we vacate that conviction and dismiss that

charge. We affirm the defendant’s conviction of possession of methamphetamine with

intent to sell and find no plain error in the prosecutor’s closing argument.

Tenn. R. App. P. 3; Judgments of the Circuit Court Affirmed in Part; Reversed and

Remanded in Part; and Vacated and Dismissed in Part.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and CAMILLE R. MCMULLEN, J., joined.

Brandon E. White, Columbia, Tennessee (on appeal); William M. Harris, Assistant District

Public Defender (at trial), for appellant, William Darnell Richardson.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney

General; Brent Cooper, District Attorney General; and Gary Howell, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

In November 2018, the Lawrence County Grand Jury charged the defendant

with one count each of possession of 0.5 grams or more of methamphetamine, a Schedule

II controlled substance, with intent to sell; possession of Alprazolam, a Schedule IV

controlled substance; possession of drug paraphernalia; and driving on a revoked or

suspended license.1

At the two-day, July 2019 trial, Deputy Colton Steadman of the Lawrence

County Sheriff’s Department testified that on May 10, 2018, at approximately 1:00 a.m.,

he observed a vehicle driving eastbound on Pulaski Highway that did not have an

operational light illuminating the license plate. He followed the vehicle and “ran the tag

through our central dispatch” and learned that the license plate was registered to the

defendant and Misty Richardson. Deputy Steadman said that he knew that the defendant

“had an active child support warrant out of our county,” which information he learned from

“look[ing] at the warrants every day whenever I come on shift.” He effectuated a traffic

stop and approached the vehicle and recognized the defendant as the driver. Misty

Richardson was seated in the front passenger seat, and Billy Richardson, the defendant’s

father, was seated in the back seat.

Deputy Steadman asked the defendant to exit his vehicle and showed him

where a light illuminating the license plate should have been. From his patrol vehicle,

Deputy Steadman checked the defendant’s driver’s license and confirmed that the

defendant had an outstanding warrant. Deputy Steadman took the defendant into custody

for the outstanding warrant and asked permission to search the vehicle, which the defendant

denied. Deputy Steadman said that he had already requested assistance from Deputy Jason

Jantke before he asked the defendant for consent to search, and Deputy Jantke was en route

with his K-9 drug dog, Kilo. Deputy Steadman explained that Kilo was “trained to alert or

sniff out methamphetamine, cocaine, and heroin[].” When Deputy Jantke arrived, he had

Kilo sniff around the vehicle, and Deputy Jantke advised Deputy Steadman that “Kilo had

alerted on the vehicle,” meaning that he had “caught the scent of an illegal narcotic . . .

inside the vehicle or coming from the vehicle.” Deputy Josh Watson and Corporal Eric

Caperton also arrived and helped Deputy Steadman search the vehicle. They recovered

“two glass pipes containing crystal residue,” an Altoids tin with “seven Alprazolam pills,”

and an unlabeled pill bottle containing “crystal substances in two separate baggies.” The

officers believed the crystal substances to be methamphetamine.

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The Grand Jury also charged the defendant with one count each of driving without a tag light and

violation of the financial responsibility law. Although no order dismissing these charges is included in the

record, the record indicates that these charges were dismissed, and the jury did not consider these charges

at trial.

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Deputy Steadman explained that he received 80 hours of training on

“controlled substances and paraphernalia that may be found in vehicles” during his time at

the Tennessee Law Enforcement Training Academy. Deputy Steadman described the pills

found in the Altoids tin as “green, oval pills” with the marking “S902” on them. He said

that the Lawrence County Sheriff’s Department had trained him to use the website

pillidentifier.com to identify pills. In this case, he searched the website by the color, shape,

and marking on the pills, and the website returned a result of a picture of the pill, which

picture he printed out. Based on his search of pillidentifier.com, Deputy Steadman

identified the pills as Alprazolam.

Deputy Steadman testified that one of the glass pipes had a white crystal

residue in its globe, which he said was “the crystal that builds up” “when somebody smokes

methamphetamine out of it.” The second glass pipe was broken. Deputy Steadman said

that the two baggies found in the pill bottle contained a total of 4.15 grams of a crystal

substance but that one of the baggies contained more of the substance than the other, which

indicated to him that “[o]ne bag could have already been weighed out for sale and the other

bag just hasn’t been cut out yet.” He explained that by “cut out” he meant “weighed out in

a separate baggy on a set of scales for resale.” He said that in his experience,

methamphetamine users typically smoked “half a gram, a little more, maybe” of

methamphetamine in a glass pipe at a time.

Deputy Steadman said that he provided the defendant with Miranda

warnings and that the defendant indicated that he wished to waive those rights. The

defendant asked Deputy Steadman whether his father would go to jail if the defendant

“took possession” of the contraband, and Deputy Steadman “advised [the defendant] that I

didn’t want him to claim anything that was not his.” The defendant twice “informed me

that he would take possession of those items because he was already going to jail,” and

Deputy Steadman repeatedly told the defendant “I did not want him to take any claim of

anything that was not his.” Ultimately, the defendant “did say that it was his illegal items

in the vehicle.” Deputy Steadman said that during a search of the defendant’s person, he

recovered six $100 bills from his wallet.

During cross-examination, Deputy Steadman testified that one of the glass

pipes was broken when officers found it. He said that when smoking methamphetamine

with a glass pipe, the user “[n]ormally” used “a torch light” and acknowledged that the

defendant had a torch lighter in his pocket. He also said that when selling

methamphetamine, a dealer would use a scale to weigh the product and acknowledged that

he did not find any scale in the defendant’s vehicle. He acknowledged that it was possible

that the two baggies of methamphetamine recovered from the vehicle had been sold to the

defendant. Deputy Steadman said that he did not ask the defendant where he had gotten

the six $100 bills.

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Deputy Steadman acknowledged that the amount of methamphetamine

typical for personal use varied depending on what the user was “immune to.” He said that

the amount of methamphetamine found in the defendant’s vehicle was “a substantial

amount for personal use” but acknowledged that it was possible that some people used

much more than others.

On redirect examination, Deputy Steadman testified that none of the

occupants of the vehicle appeared to be under the influence of drugs.

On recross-examination, Deputy Steadman acknowledged that he did not ask

any of the occupants to submit to a blood test to determine whether they had recently used

methamphetamine.

Tennessee Bureau of Investigation (“TBI”) Special Agent Lela Jackson

testified as an expert in forensic chemistry. In this case, she tested “[t]wo baggies

containing a clear crystal substance.” One bag contained 3.05 grams of a substance that

she determined “contained methamphetamine,” and the second bag weighed 0.83 grams.

She said that the scales used in the laboratory are more accurate than the digital scales that

police officers use in the field. Agent Jackson’s report was exhibited to her testimony.

During cross-examination, Agent Jackson testified that the weights that she

reported for the crystalline substance included the weight of the bag and that she did not

weigh the substances separate from the bags. She explained that it was the policy of the

laboratory to not weigh methamphetamine separate from the bag unless the weight

registered as less than 0.5 grams or 26 grams or more. She acknowledged that she did not

test the substance in the smaller bag because “it looked similar to the other one” but said

that if it had looked different, she would have tested it.

The State rested. After a full Momon colloquy, the defendant elected not to

testify, but he did put on proof.

Shakeya Richardson, the defendant’s daughter, testified that her grandmother

passed away in April 2018 and that “I paid for half of her funeral because she did not have

life insurance and my grandfather did not have money.” She said that she agreed to loan

her grandfather $600 from her savings to help pay for the funeral and that her grandfather

was to repay the loan after selling a house in Mount Pleasant. Ms. Richardson said that the

house sold around the time that the defendant was arrested and that her grandfather had

given the defendant money to repay the loan.

During cross-examination, Ms. Richardson testified that her father worked

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every other week on her farm, “clean[ing] our stalls” for $50. She was unaware of any

other source of income for the defendant.

The defendant rested.

The jury accredited the State’s evidence and convicted the defendant as

charged. The trial court imposed an effective sentence of 12-years’ incarceration.

Following a timely but unsuccessful motion for a new trial, the defendant filed a timely

notice of appeal.

In this appeal, the defendant argues that he is entitled to plain error relief for

instances of prosecutorial misconduct, that the trial court erred by admitting hearsay

evidence, and that the evidence is insufficient to support his conviction of possession of

0.5 grams or more of methamphetamine with intent to sell.

I. Prosecutorial Misconduct

The defendant asserts that the prosecutor made inappropriate comments

during closing argument. Specifically, he argues that the prosecutor committed misconduct

by inflaming and confusing the jury by mentioning the prosecutor’s granddaughter,

inappropriately suggesting that the defendant possessed Alprazolam for the purpose of

resale, erroneously shifting the burden to the defendant by pointing out that the defendant

failed to call certain witnesses, and imposing his personal beliefs about the case.

“While the scope and depth of closing argument is generally a matter within

the trial court’s discretion, the State is not free to do what they wish,” State v. Jones, 568

S.W.3d 101, 145 (Tenn. 2019) (citation omitted), and judges must take care to restrict

improper argument, see State v. Hill, 333 S.W.3d 106, 130-31 (Tenn. Crim. App. 2010)

(citation omitted). Because of the State’s unique role in a criminal case, the State, in

particular, “must refrain from argument designed to inflame the jury and should restrict its

commentary to matters in evidence or issues at trial.” Hill, 333 S.W.3d at 131. Our

supreme court

has recognized five general areas of potential prosecutorial

misconduct during closing arguments: (1) intentionally

misstating the evidence or misleading the jury as to the

inferences it may draw; (2) expressing personal beliefs or

opinions as to the truth or falsity of any testimony or the guilt

of the defendant; (3) inflaming or attempting to inflame the

passions or prejudices of the jury; (4) injecting issues broader

than the guilt or innocence of the accused; and (5) arguing or

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referring to facts outside the record unless the facts are matters

of common knowledge.

Jones, 568 S.W.3d at 145 (citing State v. Goltz, 111 S.W.3d 1, 6 (Tenn. Crim. App. 2003)).

During closing argument, the prosecutor made the following statements with

which the defendant takes issue:

I submit to you [the defendant] was on a mission. . . .

....

What other factors can you consider? The Altoids can

with the seven Alprazolam pills in it. Not in a prescription

bottle. You heard no proof that [the defendant], or indeed any

of three the [sic] people in that car, had any sort of condition

that required them to take Alprazolam, anxiety or depression,

or whatever that stuff is for.

If somebody in that car, [the defendant’s] wife, [the

defendant’s] father, was on Alprazolam, don’t you think they

would have taken the stand and said so?

Sometimes drug dealers specialize but sometimes they

try to have a little bit of something for everybody. He had

more than one kind of drug. That’s evidence in which you can

draw the inference that he was possessing these items for

resale.

....

So he had his own little mini pharmacy here. He could

sell you some methamphetamine; he could sell you some

Alprazolam.

....

Here’s the interesting thing about the Altoids can . . . .

Isn’t it cute, it’s Frozen. My granddaughter loves that. I’m

glad she didn’t find the Altoids can here though.

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Look at the can and it’s [sic] contents. It’s an awfully

big can for seven pills. Wonder if there were more than seven

at one time?

The defendant acknowledges that he failed to lodge a contemporaneous

objection to the prosecutor’s alleged improper statements and argues that he is entitled to

plain error relief.

This court may, “[w]hen necessary to do substantial justice, . . . consider an

error that has affected the substantial rights of a party at any time, even though the error

was not raised in the motion for a new trial.” Tenn. R. App. P. 36(b). This court will grant

relief for plain error only when:

the record clearly establishes what occurred in the trial court;

(2) the error breached a clear and unequivocal rule of law; (3)

the error adversely affected a substantial right of the

complaining party; (4) the error was not waived for tactical

purposes; and (5) substantial justice is at stake; that is, the error

was so significant that it “probably changed the outcome of the

trial.”

State v. Hatcher, 310 S.W.3d 788, 808 (Tenn. 2010) (quoting State v. Smith, 24 S.W.3d

274, 282-83 (Tenn. 2000)). The party claiming plain error bears the burden of satisfying

all five criteria as a prerequisite to plain error review. See id. Because each factor must be

established, we need not consider all five factors when a single factor indicates that relief

is not warranted. State v. Fayne, 451 S.W.3d 362, 372 (Tenn. 2014) (citing State v.

Bledsoe, 226 S.W.3d 349, 355 (Tenn. 2007)). “[A]n error would have to [be] especially

egregious in nature, striking at the very heart of the fairness of the judicial proceeding, to

rise to the level of plain error.” Fayne, 451 S.W.3d at 372 (citation omitted) (alterations in

Fayne).

We easily conclude that the defendant has satisfied the first element for plain

error relief; the transcript of the State’s closing argument is included in the record and

clearly establishes what occurred in the trial court. The defendant has failed, however, to

establish that the prosecutor’s statements breached a clear and unequivocal rule of law.

Although the one reference to the prosecutor’s granddaughter’s liking Frozen was

inappropriate, it is unlikely that the comment would inflame the passions of the jury or

confuse them so as to cause them to convict the defendant on the belief that his conduct

endangered children. Additionally, the law specifically permitted the jury to infer that the

defendant possessed the methamphetamine with the intent to sell it based on the

circumstances of the arrest. See T.C.A. § 39-17-419 (“It may be inferred from the amount

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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.” (emphasis added)). Although the

defendant was not charged with possession of Alprazolam with intent to sell, the jury was

free to infer his intent to sell the methamphetamine from the fact that he also possessed

Alprazolam. Consequently, the prosecutor’s argument that the defendant’s possession of

Alprazolam made it more likely that he possessed the methamphetamine for resale were

not inappropriate.

Moreover, because a prosecutor’s prefacing of an argument with the phrase

“I submit” “does not necessarily indicate an expression of personal opinion,” no clear rule

of law was breached. See State v. Gann 251 S.W.3d 446, 460 (Tenn. Crim. App. 2007)

(citing United States v. Stulga, 584 F.2d 142, 147 (6th Cir. 1978)). Similarly, because there

are instances in which a prosecutor may appropriately comment upon a defendant’s failure

to call certain witnesses, see State v. Francis, 669 S.W.2d 85, 88 (Tenn. 1984) (“It is well-

established that a prosecutor may comment upon the failure of a defendant to call an

available and material witness whose testimony would ordinarily be expected to favor the

defendant.” (citations omitted)), the prosecutor did not breach a clear rule of law by

suggesting that the defendant could have called Misty Richardson or Mr. Richardson.

Consequently, the defendant has failed to establish that he is entitled to plain

error relief in this matter.

II. Hearsay

Next, the defendant argues that the trial court erred by permitting Deputy

Steadman to testify that he relied on the website pillidentifier.com to identify the seven

pills in the Altoids tin as Alprazolam because the State failed to lay a proper foundation for

Deputy Steadman’s identification of the pills and show that pillidentifier.com “is a reliable

source for identifying scheduled/controlled substances” and because the information found

on pillidentifier.com constituted inadmissible hearsay. The State contends that Deputy

Steadman’s testimony as to the pills being Alprazolam was admissible as an exception to

hearsay. We agree with the defendant.

“‘Hearsay’ is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Tenn. R. Evid. 801(c). “Hearsay is not admissible except as provided by these

rules or otherwise by law.” Id. 802. Tennessee Rules of Evidence 803 and 804 provide

exceptions to the general rule of inadmissibility of hearsay.

Our supreme court has confirmed that “[t]he standard of review for rulings

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on hearsay evidence has multiple layers.” Kendrick v. State, 454 S.W.3d 450, 479 (Tenn.

2015). The “factual and credibility findings” made by the trial court when considering

whether a statement is hearsay, “are binding on a reviewing court unless the evidence in

the record preponderates against them.” Id. (citing State v. Gilley, 297 S.W.3d 739, 759-

61 (Tenn. Crim. App. 2008)). “Once the trial court has made its factual findings, the next

questions—whether the facts prove that the statement (1) was hearsay and (2) fits under

one [of] the exceptions to the hearsay rule—are questions of law subject to de novo

review.” Kendrick, 454 S.W.3d at 479 (citing State v. Schiefelbein, 230 S.W.3d 88, 128

(Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d 703, 721 (Tenn. Ct. App.

2005)); see also Gilley, 297 S.W.3d at 760 (stating that because “[n]o factual issue attends”

the trial court’s determination whether a statement is hearsay, “it necessarily is a question

of law”). “If a statement is hearsay, but does not fit one of the exceptions, it is inadmissible,

and the court must exclude the statement. But if a hearsay statement does fit under one of

the exceptions, the trial court may not use the hearsay rule to suppress the statement.”

Kendrick, 454 S.W.3d at 479; see also Gilley, 297 S.W.3d at 760-61.

The State relies on Rule of Evidence 803(17) to argue that the challenged

testimony was admissible hearsay, which rule allows admission of “[m]arket quotations,

tabulations, lists, directories, or other published compilations, generally used and relied

upon by the public or by persons in particular occupations.” Tenn. R. Evid. 803(17).

Here, Deputy Steadman did not testify as an expert in illegal substances. As

a lay witness, he was free to testify to matters within his personal knowledge, see Tenn. R.

Evid. 602, and to offer his opinion or draw inferences if “rationally based on the perception

of the witness and . . . helpful to a clear understanding of the witness’s testimony or

determination of a fact in issue,” see id. 701(a). Deputy Steadman’s testimony that he

searched pillidentifier.com and the results of that search led him to conclude that the pills

found in the Altoids tin were Alprazolam is outside the purview of a lay witness. Deputy

Steadman’s personal knowledge did not extend to the identification of the pills and his

opinion as to their identity was not based on his own perception.

Furthermore, Deputy Steadman’s testifying that he identified the pills based

on the search results from pillidentifier.com is hearsay that does not fall within an

exception. The hearsay exception on which the State relies extends only to the market

reports or commercial publications themselves. Compare Tenn. R. Evid. 803(16)

(excepting from hearsay “[s]tatements in a document in existence thirty years or more

purporting to establish or affect an interest in property” (emphasis added)), with id. 803(17)

(making no reference to statements in market reports or commercial publications). Because

the State failed to produce the publication itself, Deputy Steadman’s testimony that he

identified the pills as Alprazolam based on the search results found on pillidentifier.com

constituted hearsay that did not fall within any exception and was inadmissible. We need

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not reach the issue whether the website generated reliable information.

Because the improperly admitted testimony was the only evidence that the

pills in the Altoids tin were Alprazolam, the error was not harmless, and the defendant’s

conviction for simple possession of Alprazolam cannot stand. See Tenn. R. App. P. 36(b)

(“A final judgment from which relief is available and otherwise appropriate shall not be

set aside unless, considering the whole record, error involving a substantial right more

probably than not affected the judgment or would result in prejudice to the judicial

process.”); State v. Brown, 915 S.W.2d 3 (Tenn. Crim. App. 1995) (“We will reverse a

conviction only if it affirmatively appears from the record that the error more probably than

not affected the judgment.”) (citation omitted). Accordingly, we reverse the defendant’s

conviction of possession of Alprazolam and remand the case to the trial court for a new

trial on that charge.

III. Sufficiency of the Evidence

The defendant contends that the State failed to establish that he possessed the

methamphetamine with the intent to sell it.

Sufficient evidence exists to support a conviction if, after considering the

evidence—both direct and circumstantial—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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);

State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). This court will neither re-weigh the

evidence nor substitute its inferences for those drawn by the trier of fact. Dorantes, 331

S.W.3d at 379. The verdict of the jury resolves any questions concerning the credibility of

the witnesses, the weight and value of the evidence, and the factual issues raised by the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court

must afford the State the strongest legitimate view of the evidence contained in the record

as well as all reasonable and legitimate inferences which may be drawn from the evidence.

Id.

As relevant to this case, “It is an offense for a defendant to knowingly . . .

[p]ossess methamphetamine with intent to manufacture, deliver or sell methamphetamine.”

T.C.A. § 39-17-434(a)(4). This offense “is a Class B felony if the amount involved is point

five (0.5) grams or more of any substance containing . . . methamphetamine.” Id. § 39-17-

417(c)(1). Furthermore, “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.” Id. § 39-17-419.

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Here, in the light most favorable to the State, the evidence established that

the defendant was in possession of at least 3.88 grams of methamphetamine—nearly eight

times more than what a typical user smoked at one time—and $600 in cash. Furthermore,

a small portion of the methamphetamine was packaged in a bag, which Deputy Steadman

testified could indicate that the substance had already been “cut out” and weighed for

resale. The amount of methamphetamine, the sum of cash found on the defendant, and the

separately bagged substance were sufficient to support the jury’s verdict that the defendant

intended to sell the methamphetamine. The fact that the defendant was also in possession

of items commonly associated with personal use of the drug does not preclude a finding

that the defendant possessed the substance with the intent to sell it. Additionally, the jury

was free to reject the defendant’s argument that the $600 cash was money from his father

to repay Ms. Richardson.

That being said, the proof adduced at trial was insufficient to support the

defendant’s conviction of driving on a revoked or suspended license. See T.C.A. § 55-50-

504 (establishing the offense of driving a motor vehicle on “every way publicly maintained

that is open to the use of the public for purposes of vehicular travel . . . at a time when the

person’s privilege to do so is cancelled, suspended, or revoked”). The State produced no

evidence that the defendant’s driver’s license was suspended or revoked at the time of his

arrest. To be sure, the evidence clearly established that the defendant was driving the

vehicle when Deputy Steadman effectuated the traffic stop, but the jury heard no evidence

regarding the status of the defendant’s license. Deputy Steadman testified that he checked

the defendant’s driver’s license but did not discuss the results of that search. Furthermore,

the State did not offer into evidence a copy of the defendant’s driving record. Because

there is no evidence supporting the defendant’s conviction of driving on a revoked or

suspended license, we vacate that conviction and dismiss the charge.

Conclusion

Accordingly, we vacate the defendant’s conviction of driving on a revoked

or suspended license, reverse the defendant’s conviction of simple possession of

Alprazolam and remand for a new trial on that single charge, but otherwise affirm the trial

court’s judgment.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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