State of Tennessee v. Neal Scott Daniels

06/29/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 26, 2022 Session

STATE OF TENNESSEE v. NEAL SCOTT DANIELS

Appeal from the Criminal Court for Knox County

No. 112763 Kyle A. Hixson, Judge

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No. E2021-00561-CCA-R3-CD

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During a time when the Tennessee judicial system was grappling with the lingering effects

of COVID-19, a Knox County jury convicted Defendant, Neal Scott Daniels, of driving

under the influence of an intoxicant (“DUI”); driving with a blood alcohol level in excess

of 0.08 percent (“DUI per se”); simple possession of marijuana; driving on a revoked

license; failing to provide evidence of financial responsibility; DUI per se fourth offense;

and DUI by impairment fourth offense. The trial court imposed a total effective sentence

of two years to be suspended to four years on supervised probation after serving 150 days

in jail. In this appeal as of right, Defendant contends that: 1) the trial court erred by denying

his motion to continue on the grounds that courtroom procedures implemented in response

to the COVID-19 pandemic interfered with his right to a fair trial; 2) his right to

confrontation was denied when he was made to wear a face mask during trial; 3) his right

to the effective assistance of counsel was denied by requiring trial counsel and jurors to

wear masks; 4) the trial court erred by admitting the results of his blood alcohol test because

a valid chain of custody was not established; 5) the judgments of conviction in counts 6

and 7 are invalid because the indictment failed to include the dates of Defendant’s prior

convictions; and 6) there was insufficient evidence to support Defendant’s conviction for

simple possession of marijuana. After a thorough review of the record, we affirm the

judgments of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Eric Lutton, District Public Defender; Jonathan Harwell, Assistant District Public Defender

(on appeal); and Carter Pack, Tyler Caviness, and Jonathan Harwell, Assistant District

Public Defenders (at trial), Knoxville, Tennessee, for the appellant, Neal Scott Daniels.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior

Assistant Attorney General; Charme P. Allen, District Attorney General; and Greg

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

OPINION

Pre-Trial Proceedings

Defendant was charged by indictment on April 10, 2018. A series of trial dates were

reset, which the trial court recognized was through no fault of the parties, commenting

“cases get bumped.” Defendant’s trial was set to begin sometime after the Tennessee

Supreme Court suspended all in-person court proceedings, including jury trials, due to the

COVID-19 pandemic. In Re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Mar.

13, 2020) (Order) (suspending in-person court proceedings through March 31, 2020); In

Re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Mar. 25, 2020) (Order)

(continuing the suspension of in-person court proceedings through April 30, 2020); In Re:

COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Apr. 24, 2020) (Order) (suspending

jury trials through July 3, 2020). On May 26, 2020, the Tennessee Supreme Court issued

an order directing that any jury trial commenced after July 3, 2020, “shall strictly comply

with courtroom capacity and social distancing requirements applicable at the time of trial.”

In Re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. May 26, 2020) (Order). On

July 9, 2020, the Tennessee Supreme Court issued an order mandating the use of face

coverings, specifically requiring all persons entering a courthouse for the purpose of

conducting court-related business to wear a face covering over the nose and mouth at all

times while inside the building. In Re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn.

July 9, 2020) (Order).

At a pretrial status hearing on July 14, 2020, defense counsel indicated that he

“would be filing a motion to continue to preserve some of our issues about trying to have

a jury trial with the pandemic concerns and some of the Constitutional issues with that.”

The trial court stated that a plexiglass barrier would be installed around the witness stand

prior to trial so that witnesses did not have to wear masks while testifying. Defense counsel

asked whether attorneys would be required to wear masks during voir dire and opening

statements, and the trial court answered, “Everybody else will be required to wear a mask,

yes.”

On July 15, 2020, Defendant filed a motion to continue, in which he asserted that a

jury trial under the then-existing COVID-19 restrictions would 1) violate his Sixth

Amendment right to confront witnesses against him; 2) violate his right to the effective

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assistance of counsel because face masks would prevent counsel from assessing the jurors’

facial expressions, building rapport with the jurors, and engaging and communicating with

the jurors; and 3) deprive him of a fair and impartial jury because jurors would be rendered

anonymous by their face masks and because jurors’ deliberations would likely be impacted

by concerns for their health and safety. Defendant also filed a motion to establish trial

procedures.

At the July 17, 2020 hearing on Defendant’s motion to continue, the trial judge

agreed that requiring witnesses to wear masks while testifying did not “align[] with the

rights under the Constitution for the defendant to confront and cross-examine the witness.”

The trial court reiterated that witnesses would testify without masks behind plexiglass. The

trial court denied Defendant’s motion to continue. The trial court announced the

anticipated trial procedures, including that the courtroom would be open to the public,

including the media, and that 50 percent of the maximum capacity, or 94 people, would be

allowed inside the courtroom. The court announced that all potential jurors would be

screened for COVID-19 and that juror seating would be socially distanced.

The trial court found that “the situation that we have here does not equate at all to

having an anonymous jury.” The court listed information contained in the juror

information sheets and noted, “We will have all of the information about these jurors that

we’ve always had. We just won’t be able to see their noses and their mouths throughout

the course of the trial.” The trial court concluded,

We are simply not in a position where we can indefinitely postpone

crucial government function. And few, if any, government functions are

more crucial than the proper operation of a criminal justice system. Our

justice system is absolutely necessary in a free and ordered society to protect

public safety, while ensuring the rights of those accused of criminal offenses.

....

The criminal justice system is absolutely an essential function of the

[g]overnment of the free people. And the jury trial has been the cornerstone

of this system and Anglo-American jurisprudence since at least the 12th

Century. Jury trials have persisted through plagues, famines and World

Wars. The Sixth Amendment does not contain an exception for pandemics.

We must continue jury trials in a way that honors our Constitutions

and protects the safety of those who are participating. We have taken

extensive steps to do just that. And we’re ready to proceed with this essential

Government function.

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On July 21, 2020, the first day of trial, Defendant objected to several trial

procedures, including, as relevant to the issues in this appeal, the requirement that jurors

wear face masks during voir dire and trial, that Defendant wear a face mask during trial,

and that defense counsel wear face masks while addressing the court, witnesses, or jury.

The trial court noted that it had two roles to perform, “a purely judicial function” and “an

administrative function.” The court emphasized that “one of the top administrative duties

. . . is to ensure the safety of those people who are participating.” The court explained that

it had consulted with the Administrative Office of the Courts and public health officials in

determining how to conduct jury trials during the pandemic. The trial court found that

Defendant’s rights were not violated by the requirement that he wear a mask during trial

and that he would “be able to see and confront the witnesses” against him. The court

further stated that it would allow Defendant to remove his mask “at any point during the

trial . . . for a brief period” if either party requested it.

Evidence at Trial

At around 5:47 p.m. on May 14, 2017, Knox County Sheriff’s Deputy Donnie

Shipley was dispatched to a motorcycle accident on East Bullrun Valley Drive. Deputy

Shipley observed Defendant’s motorcycle “laid over, slid into the guardrail.” Defendant

appeared to be injured and was leaning against the guardrail. Defendant’s breathing was

“very heavy, labored, so the smell of alcohol was protruding a lot more.” Deputy Shipley

also noticed a “pungent odor of marijuana about [Defendant’s] person.” When asked

whether it was a smell of “raw” marijuana or “burnt” marijuana, Deputy Shipley answered,

“burnt.”

The officers checked Defendant for weapons and found a plastic bag containing

marijuana in a cargo pocket on his pants. Defendant was transported to the University of

Tennessee Medical Center for treatment of his injuries. While processing the scene,

Deputy Shipley found “multiple” unopened cans of beer in storage compartments on

Defendant’s motorcycle. Deputy Shipley weighed the marijuana found in Defendant’s

pocket and placed it in a bag. He then placed the bag in a sealed envelope and later placed

the sealed envelope in the narcotics locker. Deputy Shipley explained that the narcotics

locker was a secure metal mailbox located in the sally port at the City County Building.

Items can be put into the narcotics locker but cannot be removed until they are collected

by the narcotics division and taken to the Tennessee Bureau of Investigation (“TBI”) for

analysis. Once the TBI is done with its testing, it will reseal the envelope, sign across the

seal, and return the envelope to the Knox County Sheriff’s Office where it is placed in the

drug evidence vault.

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Later that evening, Deputy Shipley went to the hospital to serve a warrant for

Defendant’s blood sample. Defendant’s blood was collected at 12:40 a.m. on May 15,

2017. Deputy Shipley explained that medical staff at the hospital collect two vials of blood,

and the officer then seals the vials of blood with the relevant paperwork in a bubble wrap

bag, signs across the seal, and places it the TBI blood collection kit box, which the officer

also seals. The officer then places the blood kit in a secured locker inside the sally port at

the detention center. Deputy Shipley explained that “[t]here’s a large wooden locker that’s

padlocked multiple places.” He testified, “the only person that can access that is the officer

that’s taking [the blood kit] from there to the TBI.” He further explained that “one of the

evidence technicians from the Knox County Sheriff’s [O]ffice takes it to the TBI.”

TBI Special Agent Jonathan Thompson testified that blood samples are received

through the TBI “blood/alcohol drop box.” The door that accesses the drop box is locked

and only people who are “permitted into that area [are] allowed to drop something off in

there.” Agent Thompson explained that a TBI “blood kit” contains two tubes, instructions

for drawing and storing the blood, an absorbent material to protect the blood sample, and

a toxicology submittal form. When a blood kit is delivered to the TBI for analysis, it is

sealed. If the TBI receives a kit that is unsealed or appears to have been tampered with, it

is noted. When a kit is received by the TBI, it is assigned a unique identifier number that

“follow[s] that sample throughout its journey through the lab.”

Agent Thompson testified that the blood sample in this case was received by the

TBI on May 19, 2017, at 4:30 p.m. Deputy Shipley completed the toxicology request form.

He testified that the blood kit was sealed and did not have any signs of tampering. Agent

Thompson’s report was admitted as an exhibit. It reflected that the blood alcohol content

of the sample was 0.117 percent.

TBI Special Agent Sharon Norman analyzed the plant material seized from

Defendant’s person. Agent Norman performed three different analyses of the substance.

She first performed a macroscopic analysis by looking at the substance with “the naked

eye” and recording her visual observations. She noted that it was a green plant material

with fluted stems that are characteristic of a cannabis plant. She also performed a

microscopic examination of the plant under a microscope, which also indicated

characteristics of a cannabis plant. Agent Norman also performed a chemical color test,

which “verified that there were cannabinoids present.” Agent Norman’s report concluded

that the plant material was 12.42 grams of marijuana. Agent Norman testified that at the

time of her report in this case, testing was not available to distinguish between marijuana

and hemp. She acknowledged, “I cannot say if it was marijuana or hemp, but it was in the

family of – or the species cannabis.”

Defendant did not testify or present any other proof.

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Analysis

Denial of Motion for Continuance

Defendant contends that the trial court abused its discretion in denying his motion

to continue. Defendant argues that “critical aspects of the fact-finding function of trial

were impeded by the health protocols” of the pandemic and that the trial court’s denial of

a continuance rose to the level of a due process violation. The State asserts that Defendant

has not established that he was prejudiced by the trial court’s denial of a continuance.

The grant or denial of a continuance rests within the sound discretion of the trial

court. State v. Rimmer, 250 S.W.3d 12, 40 (Tenn. 2008) (citing State v. Odom, 137 S.W.3d

572, 589 (Tenn. 2004)). The decision to deny a continuance will be reversed by this Court

“only if it appears that the trial court abused its discretion to the prejudice of the defendant.”

Odom, 137 S.W.3d at 589 (citing State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). “An

abuse of discretion is demonstrated by showing that the failure to grant a continuance

denied defendant a fair trial or that it could be reasonably concluded that a different result

would have followed had the continuance been granted.” Hines, 919 S.W.2d at 579 (citing

State v. Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). When a defendant claims

that the denial of a continuance constitutes a denial of due process, then he or she must

establish actual prejudice. Rimmer, 250 S.W.3d at 40 (citing Odom, 137 S.W.3d at 589).

Defendant has not shown that the trial court’s failure to grant a continuance denied

him a fair trial or that there would have been a different result at trial if the continuance

had been granted. In his reply brief, Defendant does not dispute the necessity of safety

measures taken in response to COVID-19. Rather, he disputes the necessity of a trial

during the outbreak of a pandemic. Defendant asserts that there was no reason for his case

to proceed to trial other than the court’s desire to resume jury trials. He contends that the

trial court’s “haste” resulted “in a tremendously flawed trial.” Quoting the United States

Supreme Court’s decision in Ungar v. Sarafite, Defendant asserts that this was a “myopic

insistence on expeditiousness in the face of a justifiable request for delay.” 376 U.S. 575,

589 (1964). As the Court later stated in Morris v. Slappy, however,

[t]rial judges necessarily require a great deal of latitude in scheduling trials.

Not the least of their problems is that of assembling the witnesses, lawyers,

and jurors at the same place at the same time, and this burden counsels

against continuances except for compelling reasons. Consequently, broad

discretion must be granted trial courts on matters of continuances; only an

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unreasoning and arbitrary “insistence upon expeditiousness in the face of a

justifiable request for delay” violates [due process].

461 U.S. 1, 11-12 (1983) (quoting Ungar, 376 U.S. at 589) (emphasis added). Adding to

the list of concerns above, conducting jury trials in the midst of a global pandemic brought

another set of considerations with which trial judges had not previously been confronted.

We disagree with Defendant that the trial court’s desire to resume jury trials was

“an unreasoning and arbitrary” exercise of its discretion to deny a continuance.

Furthermore, Defendant did not present “a justifiable request for delay.” Defendant’s

request for a continuance was never based on his counsel’s inability to prepare a defense,

the unavailability of a witness, or some other reason that could serve to establish that the

result of the proceeding would have been different if Defendant had more time.

Defendant’s only claim has been that conducting a trial during a pandemic is unfair.

Defendant cites the Sixth Circuit Court of Appeals for its definition of actual

prejudice: “The defendant demonstrates ‘actual prejudice’ by showing that a continuance

would have made relevant witnesses unavailable or added something to the defense.”

United States v. King, 127 F.3d 483, 487 (6th Cir. 1997). Defendant asserts that the

“something” that a grant of a continuance would have added to the defense would have

been counsel’s ability to more effectively engage and communicate with the jurors and the

witnesses being “forced [ ] to view the defendant” during their testimony. These two issues

are discussed more fully below. Nonetheless, Defendant essentially asks this Court to

presume that a delay in trial until the limitations imposed by the mask requirement and

physical distancing were removed would have produced a different result. Indeed, almost

two years after Defendant’s trial, face masks are still “strongly encourage[d]” in

courtrooms. In Re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. Aug. 26, 2021).

Defendant did not present any testimony or other evidence at the hearing on his

motion for new trial to support a showing of actual prejudice. The trial court’s denial of

Defendant’s request for a continuance did not deny Defendant a fair trial.

Right to Confrontation

Defendant contends that his Sixth Amendment right to confrontation was violated

by the requirement that Defendant wear a mask during his trial. While acknowledging that

the witnesses who testified in this case were permitted to remove their masks and testify

behind a plexiglass barrier, Defendant complains that requiring him to wear a mask during

trial undermined his right to face his accusers. The State responds that Defendant has failed

to establish a violation of his right to confrontation.

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The Confrontation Clause of the Sixth Amendment to the United States Constitution

provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” Article 1, section 9 of the Tennessee

Constitution states:

That in all criminal prosecutions, the accused hath the right to be heard by

himself and his counsel; to demand the nature and cause of the accusation

against him, and to have a copy thereof, to meet the witnesses face to face,

to have compulsory process for obtaining witnesses in his favor, and in

prosecutions by indictment or presentment, a speedy public trial by an

impartial jury of the County in which the crime shall have been committed,

and shall not be compelled to give evidence against himself.

Tenn. Const. art. I § 9. (Emphasis added). “It has long been held that the Confrontation

Clause of the Sixth Amendment and art. I, § 9 of the Tennessee Constitution provide two

protections for criminal defendants: the right to physically face witnesses and the right to

cross-examine witnesses.” State v. Brown, 29 S.W.3d 427, 430-31 (Tenn. 2000) (citing

Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); State v. Middlebrooks, 840 S.W.2d 317,

322 (Tenn. 1992)). “The Confrontation Clause is designed ‘to ensure the reliability of the

evidence against a criminal defendant by subjecting it to rigorous testing in the context of

an adversary proceeding before the trier of fact.’” State v. McCoy, 459 S.W.3d 1, 13 (Tenn.

2014) (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)).

The Tennessee Supreme Court has stated, “[W]hen deciding claims based on the

right of confrontation provided in article I, section 9, we have expressly adopted and

applied the same analysis used to evaluate claims based on the Confrontation Clause of the

Sixth Amendment.” State v. Davis, 466 S.W.3d 49, 68 (Tenn. 2015) (citations omitted).

Although the Tennessee Supreme Court held in State v. Deuter, 839 S.W.2d 391, 395

(Tenn. 1992), that the “face to face” language found in the Tennessee Constitution imposes

a higher standard than that found in the federal constitution, it subsequently stated that,

“we have found no evidence to have been excluded under our state constitution’s

confrontation clause that was not also excluded under the federal constitution’s

counterpart.” State v. Lewis, 235 S.W.3d 136, 144 (Tenn. 2007).

The right of confrontation is not absolute and must occasionally give way to

considerations of public policy and necessities of the case. Rimmer, 623 S.W.3d 235, 282

(Tenn. 2020). In State v. Dennis Lee Seale, No. M2019-01913-CCA-R9-CD, 2020 WL

4045227, *8 (Tenn. Crim. App. July 20, 2020), no perm. app. filed, a panel of this Court

considered a confrontation challenge to remote audio-visual testimony of four witnesses

who lived out of state and each had various reasons for not travelling to Tennessee to

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testify. Recognizing that a compelling public interest might exist that would justify the use

of two-way videoconferencing, the panel concluded, “it is in no way constitutionally

equivalent to the face-to-face confrontation envisioned by the Sixth Amendment.” Id. The

panel stated, “We are not inclined to remove the requirement of physical presence of a

witness in the courthouse, save for instances in which the most necessary public policy

considerations arise.” Id. The panel remanded the case back to the trial court to make

specific findings about the public policy implications as to each witness who would testify

remotely. Id.

The public policy considerations present at the time of Defendant’s trial were to

ensure the health and safety of those present in the courtroom in the midst of a global

pandemic. The trial court ordered Defendant to wear a mask during trial in accordance

with an order of the Tennessee Supreme Court mandating the use of face coverings in

courthouses. In Re: COVID-19 Pandemic, No. ADM2020-00428 (Tenn. July 9, 2020)

(Order). Furthermore, every witness who testified against Defendant testified in his

physical presence, and only Defendant’s nose and mouth were obscured. We are

unpersuaded by Defendant’s argument that that the requirement that he wear a mask during

trial prevented the witnesses from perceiving his presence. See Coy v. Iowa, 487 U.S.

1012, 1019-20 (1988) (“A witness may feel quite differently when he has to repeat his story

looking at the man whom he will harm greatly by distorting or mistaking the facts.”);

United States v. Tagliaferro, 531 F. Supp. 3d 844, 849 (S.D.N.Y. March 31, 2021).

While the issue of mask-wearing during criminal jury trials has not yet been

squarely addressed by Tennessee appellate courts, federal courts have addressed it and

“have repeatedly found that requiring participants at trial to wear face masks due to the

COVID-19 pandemic does not violate a criminal defendant’s constitutional rights.” United

States v. Berglund, No. 20-CR-00200 (SRN/TNL), 2021 WL 1589548, at *1 (D. Minn.

Apr. 23, 2021) (collecting cases). The Southern District of New York concluded that the

Confrontation Clause did not require that the nose and mouth of the defendant or jurors be

visible, although that court’s rules permitted witnesses to remove their masks during

testimony. Tagliaferro, 2021 WL 1225990, at *4. In United States v. Crittenden, the

Middle District of Georgia advised counsel prior to a criminal jury trial that “all persons

entering the courtroom, including parties, lawyers, witnesses, jurors, and spectators” would

be “required to wear masks that cover their nose and mouth.” No. 4:20-CR-7 (CDL), 2020

WL 4917733, at *5 (M.D. Ga. Aug. 21, 2020) (“Under the specific circumstances presented

by the global COVID-19 pandemic, the Court is satisfied that the current mask requirement

does not violate the Confrontation Clause.”). The district court remarked, “There is no

reason to believe that it is any less difficult to tell a lie to a person’s face just because the

liar’s nose and mouth are covered.” Id. at *6.

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We agree with the rationale espoused by the federal courts cited above and conclude

that the trial court’s enforcing a face mask requirement, as directed by an order of the

Tennessee Supreme Court, did not violate Defendant’s right to confront witnesses.

Defendant is not entitled to relief on this issue.

Right to Effective Assistance of Counsel

Defendant next contends that requiring counsel and jurors to wear masks and

maintain social distance interfered with his right to the effective assistance of counsel. He

argues that “many of the usual approaches to defense advocacy were rendered ineffective

or even impossible” by the mask requirement. The State argues that Defendant has failed

to establish that the courtroom procedures denied him his right to counsel.

The Sixth Amendment to the United States Constitution provides that in “all

criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel

for his defense.” Similarly, Article I, Section 9 of the Constitution of Tennessee provides

“[t]hat in all criminal prosecutions, the accused hath the right to be heard by himself and

his counsel.” These provisions guarantee criminal defendants the right to the effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn.1975).

“Government violates the right to effective assistance when it interferes in certain

ways with the ability of counsel to make independent decisions about how to conduct the

defense.” Strickland, 466 U.S. at 686 (citing Geders v. United States, 425 U.S. 80 (1976)

(holding that a bar on attorney-client consultation during overnight recess was a

deprivation of right to counsel); Herring v. New York, 422 U.S. 853 (1975) (holding that a

bar on closing argument at a bench trial was a deprivation of right to counsel); Brooks v.

Tennessee, 406 U.S. 605 (1972) (holding that bar on defendant taking the stand when he

was not called as the first witness was a deprivation of the right to counsel); Ferguson v.

Georgia, 365 U.S. 570 (1961) (holding that limitation on direct examination of defendant

was a deprivation of the right to counsel)). “The benchmark for judging any claim of

ineffectiveness [of counsel] must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced

a just result.” Strickland, 466 U.S. at 686.

The trial court has broad discretion in controlling the course and conduct of trial

proceedings. State v. King, 40 S.W.3d 442, 449 (Tenn. 2001); State v. Cazes, 875 S.W.2d

253, 260 (Tenn. 1994). The trial court “is in the best position to make determinations

regarding how to achieve [its] primary purpose [of ensuring a fair trial].” State v. Franklin,

714 S.W.2d 252, 258 (Tenn. 1986).

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Defendant avers, “The trappings of a trial were present here[,] . . . [b]ut the essence

of these stages was vastly altered from the ordinary trial.” We disagree that a mask

requirement “vastly altered” the trial. Defendant cites no authority supporting the

proposition that the constitutional right to the effective assistance of counsel includes the

right of a defendant to have his defense counsels’ and the jurors’ noses and mouths

uncovered. We are unaware of any authority that suggests that wearing masks in the

courtroom could so greatly diminish counsel’s effectiveness as to deny a defendant the

effective assistance of counsel. As the court in Crittenden noted, “masks will eliminate

two aspects of demeanor for the jury to consider: movement of the nose and mouth.” Id.

at *7. The court further explained, “Demeanor includes the language of the entire body.”

The jurors and counsel could observe the other’s eyes and eye movements, facial and body

movements, hesitation in speech, and many other languages of the body. We do not believe

that any alleged impediments to defense counsel’s ability to have “nuanced

communication” with the jury rises to the level of a Sixth Amendment violation. Defendant

is not entitled to relief on this issue.

Chain of Custody

Defendant contends that the trial court erred in admitting the results of the blood

analysis because of a break in the chain of custody. Defendant argues that the State did

not present any evidence to establish a link between the kit being placed into the evidence

locker by Deputy Shipley and being received at the TBI. The State responds that the trial

court acted within its discretion in admitting the evidence.

Tennessee Rule of Evidence 901(a) requires the authentication or identification of

evidence as “a condition precedent to [its] admissibility.” This requirement is satisfied “by

evidence sufficient to the court to support a finding by the trier of fact that the matter in

question is what its proponent claims.” Tenn. R. Evid. 901(a). Put another way, “‘a witness

must be able to identify the evidence or establish an unbroken chain of custody.’” State v.

Cannon, 254 S.W.3d 287, 296 (Tenn. 2008) (quoting State v. Scott, 33 S.W.3d 746, 760

(Tenn. 2000)). This rule “is designed to insure ‘that there has been no tampering, loss,

substitution, or mistake with respect to the evidence.’” Id. (quoting Scott, 33 S.W.3d at

760).

Each link in the chain of custody “should be sufficiently established,” but the rule

“does not require that the identity of tangible evidence be proven beyond all possible doubt;

nor should the State be required to establish facts which exclude every possibility of

tampering.” Cannon, 254 S.W.3d at 296 (citing Scott, 33 S.W.3d at 760). To that end, the

State is not required “to call all of the witnesses who handled the item.” Id. Rather, “when

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the facts and circumstances that surround tangible evidence reasonably establish the

identity and integrity of the evidence, the trial court should admit the item into evidence.”

Id. This Court reviews a trial court’s determination regarding the chain of custody for an

abuse of discretion. Id. at 295.

Defense counsel objected at trial to the admission into evidence of the results of the

blood alcohol analysis. Citing State v. John Palladin Gibson, No. E2017-01567-CCA-R3-

CD, 2018 WL 4811086 (Tenn. Oct. 3, 2018), no perm. app. filed, defense counsel argued

that Deputy Shipley gave no testimony regarding the procedures of evidence handling by

the Sheriff’s Department. In overruling Defendant’s objection, the trial court distinguished

the facts in John Palladin Gibson in that the deputy in that case “simply handed the sample

. . . to somebody working in the forensic department at the sheriff’s office. And from that

point forward, there was no testimony offered regarding the procedures of the sheriff’s

office, what the forensic department does with that or how it gets to TBI.” The trial court

found that Deputy Shipley’s testimony that he placed the blood kit in a secure locker to

which only evidence technicians have access was sufficient to establish a proper chain of

custody.

In John Palladin Gibson, a panel of this Court held that the State failed to establish

an unbroken chain of custody where the State did not present any proof “about the

whereabouts and security of the [d]efendant’s blood sample from the time [the deputy]

gave it to the Forensic Department until it was received in the TBI Laboratory’s evidence

drop box six days later.” Id. at *7. The panel concluded that the proof failed to establish

the normal procedures for handling the evidence to ensure the integrity of the evidence.

2018 WL 4811086, at *8. The distinction between the evidence presented in that case and

the evidence presented in this case is that Deputy Shipley testified that he deposited the

sealed blood kit into the secure evidence box, to which only evidence officers have access;

whereas the deputy in John Palladin Gibson testified that he delivered the defendant’s

blood kit to a person whose name he could not recall in the forensic department of the

sheriff’s office. Id. at *2. That person did not testify as to what he or she did with the

sample after receiving it. Id.

Other cases have concluded that the chain of custody was adequately established

when the State did not present testimony from every link in the chain but when there was

testimony that the evidence was kept in a secure manner and that there was no indication

of tampering. See, e.g. State v. Earnest Laning, No. E2011-01882-CCA-R3-CD, 2012 WL

3158782, at *3 (Tenn. Crim. App. Aug. 6, 2012) (chain of custody established by testimony

that blood was collected, sealed in a box, and stored in a secure location, and its receipt by

the TBI indicated no tampering), no perm. app. filed; State v. Randy Timothy Jones, No.

M2017-00769-CCA-R3-CD, 2018 WL 1182573, at *5-6 (Tenn. Crim. App. Mar. 7, 2018)

(chain of custody established by the trooper’s testimony that he witnessed the collection of

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the blood, labeled and sealed it, put it into a locked evidence drop box, and the agent’s

testimony that the forensic technician received the box and that it was sealed with no

indication of tampering), no perm. app. filed; State v. Pascasio Martinez, No. E2016-

01401-CCA-R3-CD, 2017 WL 5613976, at *3 (Tenn. Crim. App. Nov. 21, 2017) (chain

of custody established by testimony that the evidence was stored and received in a secured

manner, that a notation would have been made of any tampering, and that the samples

appeared undisturbed), perm. app. denied (Tenn. Mar. 15, 2018); State v. Kevin Allen

Fleming, No. E2016-01746-CCA-R3-CD, 2018 WL 1433503, at *15-17 (Tenn. Crim.

App. Mar. 22, 2018) (chain of custody established when the trooper observed the collection

of the blood, sealed the kit, and took it to a secure evidence locker, and when the TBI agent

testified regarding the integrity of the evidence once it was placed into the TBI drop box),

perm. app. denied (Tenn. July 18, 2018).

Here, Deputy Shipley testified that the procedure for collecting a blood sample was

followed. Deputy Shipley sealed the blood collection kit and delivered it to a secure

evidence locker, which he explained could only be accessed by evidence officers whose

job it was to deliver blood kits to the TBI for analysis. Special Agent Thompson testified

that blood samples are received by the TBI through a locked drop box. He explained that

when a blood kit is received that shows any signs of tampering, it is noted, and the blood

kit did not have any indication of tampering.

This evidence is sufficient to establish an unbroken chain of custody, and the trial

court did not abuse its discretion in admitting the results of Defendant’s blood analysis.

Validity of Indictment

Defendant challenges his conviction for fourth offense DUI because the indictment

included the dates of the prior offenses rather than the dates of conviction as required by

statute. The State responds that the indictment was sufficient. We agree with the State.

A defendant subject to enhanced penalties as a multiple offender must be given

notice that he or she is subject to mandatorily increased punishment for a second or

subsequent DUI offense in order to comply with due process. In the prosecution of second

or subsequent offenders, Tennessee Code Annotated section 55-10-411(b)(2) requires that

the indictment or charging instrument allege the prior convictions, “setting forth the time

and place of each prior conviction or convictions.”

Tennessee Code Annotated section 40-13-202 requires an indictment to “state the

facts constituting the offense in ordinary and concise language . . . in such a manner as to

enable a person of common understanding to know what is intended, and with that degree

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of certainty which will enable the court, on conviction, to pronounce the proper judgment.

. . .” Generally, an indictment is valid “if it provides sufficient information ‘(1) to enable

the accused to know the accusation to which answer is required, (2) to furnish the court

adequate basis for entry of a proper judgment, and (3) to protect the accused from double

jeopardy.’” State v. Duncan, 505 S.W.3d 480, 484-85 (Tenn. 2016) (quoting State v. Hill,

954 S.W.725, 728 (Tenn. 1997)).

The indictment in this case alleged in counts 6 and 7 that Defendant “was in

violation and convicted of the offense of DUI” in case number 102843 on October 4, 2013,

in the Criminal Court for Knox County, Tennessee; in case number 60492 on September

2, 2010, in the General Sessions Court for Union County, Tennessee; in case number 60169

on July 29, 2010, in the General Sessions Court for Union County, Tennessee; and in case

number 3643 on May 3, 2008, in the Criminal Court for Union County, Tennessee. At

trial, the State introduced certified copies of the judgments in those cases, which reflect

that the dates listed in the indictment were the offense dates rather than the conviction

dates.

Notably, Defendant never filed a motion to dismiss counts 6 and 7 of the indictment

or a bill of particulars. The fact that the indictment states the dates of the prior offenses

rather than the dates of the prior convictions does not mean that Defendant was not apprised

of the accusation against him. The indictment set forth the case numbers and convicting

courts for each prior conviction. The discrepancy in dates does not invalidate the

indictment. Defendant is not entitled to relief on this issue.

Sufficiency of the Evidence

Defendant lastly challenges the sufficiency of the evidence to sustain his conviction

for simple possession of marijuana because the State failed to prove that the substance

seized was marijuana rather than hemp. The State responds that the evidence was

sufficient.

In determining the sufficiency of the evidence, the standard of review is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see State v. Vasques,

221 S.W.3d 514, 521 (Tenn. 2007). The State is “afforded the strongest legitimate view

of the evidence and all reasonable inferences” from that evidence. Vasques, 221 S.W.3d

at 521. The appellate courts do not “reweigh or reevaluate the evidence,” and questions

regarding “the credibility of witnesses [and] the weight and value to be given the evidence

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. . . are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997);

see State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984).

“A crime may be established by direct evidence, circumstantial evidence, or a

combination of the two.” State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998); see State v.

Sutton, 166 S.W.3d 686, 691 (Tenn. 2005). “The standard of review ‘is the same whether

the conviction is based upon direct or circumstantial evidence.’” State v. Dorantes, 331

S.W.3d 370, 379 (Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.

2009)). A conviction may be based upon circumstantial evidence alone. See Dorantes,

331 S.W.3d at 380-381.

It is unlawful to “knowingly possess or casually exchange a controlled substance.”

T.C.A. § 39-17-418(a). 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.” T.C.A. § 39-11-302(b). At the time of the

offense, marijuana was defined as “all part of the plant cannabis” but did not include

industrial hemp. T.C.A. § 39-17-402(16) (2017). In 2019, the possession of all hemp was

legalized in Tennessee. T.C.A. § 39-17-402(16) (2019).

Deputy Shipley testified that he smelled a pungent odor of burnt marijuana about

Defendant’s person. A clear plastic bag containing a substance that Deputy Shipley

recognized as marijuana was found in Defendant’s pants pocket. We conclude that this

evidence provided sufficient evidence for the jury to conclude that Defendant possessed

marijuana. Agent Norman concluded that the substance was marijuana based on three

types of analyses. Agent Norman acknowledged that at the time of testing in 2017, her

analysis did not distinguish between marijuana and hemp, both of which belong to the

cannabis species.1 We note that at the time of the offense, a legal distinction did not exist

between marijuana and non-industrial hemp, as possession of both substances was

unlawful. State v. John Bradford Underwood, III, No. E2020-01080-CCA-R3-CD, 2021

WL 6013938, at *4 (Tenn. Crim. App. Dec. 16, 2021), perm. app. filed (Tenn. Feb. 15,

2022).

We conclude that the evidence was sufficient for a rational trier of fact to conclude

that Defendant possessed marijuana. See State v. Kentrel Ne’Air Siner, No. W2020-01719-

CCA-R3-CD, 2022 WL 252354, at *8 (Tenn. Crim. App. Jan. 27, 2022) (finding sufficient

evidence that the defendant was in constructive possession of marijuana when the

1

On April 4, 2019, the possession of hemp was legalized in Tennessee. Hemp is defined as

Cannabis sativa containing not more than 0.3% THC, and marijuana is defined as Cannabis sativa

containing greater than 0.3% THC. See T.C.A. §§ 39-17-14 (2019); 43-27-101 (Supp. 2020).

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substance was not forensically tested), no perm. app. filed. Defendant is not entitled to

relief.

CONCLUSION

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

____________________________________

TIMOTHY L. EASTER, JUDGE

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