IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 17, 1999
Cecil Crowson, Jr. JULY 1999 SESSION Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) NO. 03C01-9807-CR-00259 Appellee, ) ) McMINN COUNTY VS. ) ) HON. CARROLL L. ROSS, CHRIS SMITH, ) JUDGE ) Appellant. ) (Sale of Cocaine - Three Counts)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES M. CORN PAUL G. SUMMERS District Public Defender Attorney General and Reporter
WILLIAM C. DONALDSON TODD R. KELLEY (At Trial) Assistant Attorney General Assistant District Public Defender Cordell Hull Building, 2nd Floor 110 ½ Washington Avenue NE 425 Fifth Avenue North Athens, TN 37303 Nashville, TN 37243-0493
JOHN E. HERBISON JERRY N. ESTES (On Appeal) District Attorney General 2016 Eighth Avenue South Nashville, TN 37204-2202 WILLIAM W. REEDY Assistant District Attorney General 130 Washington Avenue NE P. O. Box 647 Athens, TN 37371-0647
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
Defendant, Chris Smith, was convicted by a McMinn County jury on three
counts of selling cocaine under 0.5 grams, Class C felonies. The trial court
sentenced defendant as a Range II multiple offender to ten years on each count to
run concurrently. The following issues are presented in this appeal as of right:
(1) whether the trial court erred in denying defendant’s motion to sever the offenses;
(2) whether the evidence was sufficient to establish venue in McMinn County; and
(3) whether the sentences are excessive.
After a careful review of the record, we find no error and AFFIRM the judgment of
the trial court.
FACTS
Although defendant does not challenge the sufficiency of the substantive
evidence to support the convictions, a brief summary of the facts would be
appropriate. The state’s proof showed that on July 17, 18, and 19, 1996, an
undercover agent purchased crack cocaine from defendant. On each occasion the
transaction occurred on Kilgore Street in Athens; the defendant approached the
agent’s vehicle; the agent gave the defendant $100; the agent was asked to circle
the block; and the defendant subsequently gave to the agent slightly less than 0.5
grams of crack cocaine. The defendant offered no proof at trial.
SEVERANCE OF OFFENSES
Defendant contends the trial court erred in not severing the three counts for
separate trials. The state contends the offenses were part of a common scheme
or plan and were properly tried together. We find no reversible error in refusing to
sever the offenses.
2 A. Common Scheme or Plan
Even though offenses are properly joined in an indictment, a defendant has
the right to severance of the offenses “unless the offenses are part of a common
scheme or plan and the evidence of one would be admissible upon the trial of the
others.” Tenn. R. Cr. P. 14(b)(1). A “common scheme or plan” is established if the
modus operandi of the offenses is similar, and they occur within a close proximity
of time and location so that there can be little doubt that the offenses were
committed by the same defendant. State v. Peacock, 638 S.W.2d 837, 840 (Tenn.
Crim. App. 1982). This Court has repeatedly acknowledged the common scheme
or plan application to drug transactions with similar factual patterns. See State v.
Steve Edward Houston, C.C.A. No. 01C01-9711-CC-00510, Giles County (Tenn.
Crim. App. filed October 28, 1998, at Nashville)(citing numerous decisions of this
Court authorizing consolidation for similar drug transactions). In the case at bar, all
three offenses involved the same undercover agent, the same defendant, the same
location of sale, the same amount of money, a similar amount of crack cocaine, a
similar method of operation by the defendant, and occurred on three consecutive
days. We conclude these offenses constitute a “common scheme or plan” as
contemplated by Tenn. R. Crim. P. 14(b)(1).
B. Tenn. R. Evid. 404(b)
Tenn. R. Crim. P. 14(b)(1) sets forth an additional requirement for trial
consolidation; namely, the evidence of each offense must be admissible in the trial
of the others. This must be determined pursuant to Tenn. R. Evid. 404(b). See
State v. Hoyt, 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995). Tenn. R. Evid. 404(b)
relates to the admissibility of other crimes and requires (1) a jury-out hearing; (2) a
determination of a material issue other than conduct conforming with a character
trait; and (3) a finding that probative value outweighs unfair prejudice. Id. Evidence
of other crimes may be admissible to show motive; intent; guilty knowledge; identity;
3 absence of mistake or accident; a common scheme or plan; or completion of the
story. N. Cohen et al., Tennessee Law of Evidence § 404.6 (3d ed. 1995).
Although the trial court did not make findings as required by Tenn. R. Evid.
404(b), defendant is entitled to no relief. The defendant’s participation in each
offense was probative of his identity and established a common scheme or plan.
Furthermore, the facts of each case were identical except for the date.
This issue is without merit.
VENUE
Defendant contends the state failed to establish venue since the only
testimony relating to venue was that Kilgore Street was “[h]ere in Athens.” We
disagree with defendant’s contention.
The state must prove venue by a “preponderance of the evidence.” Tenn.
Code Ann. § 39-11-201(e). The state’s proof indicated that the drug transactions
took place in Athens. The jury could properly determine that Athens is in McMinn
County. See State v. Marbury, 908 S.W.2d 405, 408 (Tenn. Crim. App. 1995);
State v. Chadwick, 750 S.W.2d 161, 165 (Tenn. Crim. App. 1987). Furthermore,
both the defendant and the state have overlooked the testimony of Detective Bill
Matthews, who monitored all three transactions, and responded affirmatively when
asked if “all these events occurred in McMinn County, Tennessee.”1
1 See Trial Transcript, page 14.
4 SENTENCING
In his final issue Defendant contends the trial court erred in its determination
of enhancement and mitigating factors and imposed an excessive sentence. We
disagree.
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The pre-sentence report indicates that the defendant had 17 prior
convictions, including 11 felony convictions. Many of the felony convictions
apparently were committed on the same date, thereby limiting defendant to a Range
II offender. Defendant was on felony probation at the time of the commission of the
instant offenses. Furthermore, defendant was on probation when he committed and
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE August 17, 1999
Cecil Crowson, Jr. JULY 1999 SESSION Appellate C ourt Clerk
STATE OF TENNESSEE, ) ) NO. 03C01-9807-CR-00259 Appellee, ) ) McMINN COUNTY VS. ) ) HON. CARROLL L. ROSS, CHRIS SMITH, ) JUDGE ) Appellant. ) (Sale of Cocaine - Three Counts)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES M. CORN PAUL G. SUMMERS District Public Defender Attorney General and Reporter
WILLIAM C. DONALDSON TODD R. KELLEY (At Trial) Assistant Attorney General Assistant District Public Defender Cordell Hull Building, 2nd Floor 110 ½ Washington Avenue NE 425 Fifth Avenue North Athens, TN 37303 Nashville, TN 37243-0493
JOHN E. HERBISON JERRY N. ESTES (On Appeal) District Attorney General 2016 Eighth Avenue South Nashville, TN 37204-2202 WILLIAM W. REEDY Assistant District Attorney General 130 Washington Avenue NE P. O. Box 647 Athens, TN 37371-0647
OPINION FILED:
AFFIRMED
JOE G. RILEY, JUDGE OPINION
Defendant, Chris Smith, was convicted by a McMinn County jury on three
counts of selling cocaine under 0.5 grams, Class C felonies. The trial court
sentenced defendant as a Range II multiple offender to ten years on each count to
run concurrently. The following issues are presented in this appeal as of right:
(1) whether the trial court erred in denying defendant’s motion to sever the offenses;
(2) whether the evidence was sufficient to establish venue in McMinn County; and
(3) whether the sentences are excessive.
After a careful review of the record, we find no error and AFFIRM the judgment of
the trial court.
FACTS
Although defendant does not challenge the sufficiency of the substantive
evidence to support the convictions, a brief summary of the facts would be
appropriate. The state’s proof showed that on July 17, 18, and 19, 1996, an
undercover agent purchased crack cocaine from defendant. On each occasion the
transaction occurred on Kilgore Street in Athens; the defendant approached the
agent’s vehicle; the agent gave the defendant $100; the agent was asked to circle
the block; and the defendant subsequently gave to the agent slightly less than 0.5
grams of crack cocaine. The defendant offered no proof at trial.
SEVERANCE OF OFFENSES
Defendant contends the trial court erred in not severing the three counts for
separate trials. The state contends the offenses were part of a common scheme
or plan and were properly tried together. We find no reversible error in refusing to
sever the offenses.
2 A. Common Scheme or Plan
Even though offenses are properly joined in an indictment, a defendant has
the right to severance of the offenses “unless the offenses are part of a common
scheme or plan and the evidence of one would be admissible upon the trial of the
others.” Tenn. R. Cr. P. 14(b)(1). A “common scheme or plan” is established if the
modus operandi of the offenses is similar, and they occur within a close proximity
of time and location so that there can be little doubt that the offenses were
committed by the same defendant. State v. Peacock, 638 S.W.2d 837, 840 (Tenn.
Crim. App. 1982). This Court has repeatedly acknowledged the common scheme
or plan application to drug transactions with similar factual patterns. See State v.
Steve Edward Houston, C.C.A. No. 01C01-9711-CC-00510, Giles County (Tenn.
Crim. App. filed October 28, 1998, at Nashville)(citing numerous decisions of this
Court authorizing consolidation for similar drug transactions). In the case at bar, all
three offenses involved the same undercover agent, the same defendant, the same
location of sale, the same amount of money, a similar amount of crack cocaine, a
similar method of operation by the defendant, and occurred on three consecutive
days. We conclude these offenses constitute a “common scheme or plan” as
contemplated by Tenn. R. Crim. P. 14(b)(1).
B. Tenn. R. Evid. 404(b)
Tenn. R. Crim. P. 14(b)(1) sets forth an additional requirement for trial
consolidation; namely, the evidence of each offense must be admissible in the trial
of the others. This must be determined pursuant to Tenn. R. Evid. 404(b). See
State v. Hoyt, 928 S.W.2d 935, 944 (Tenn. Crim. App. 1995). Tenn. R. Evid. 404(b)
relates to the admissibility of other crimes and requires (1) a jury-out hearing; (2) a
determination of a material issue other than conduct conforming with a character
trait; and (3) a finding that probative value outweighs unfair prejudice. Id. Evidence
of other crimes may be admissible to show motive; intent; guilty knowledge; identity;
3 absence of mistake or accident; a common scheme or plan; or completion of the
story. N. Cohen et al., Tennessee Law of Evidence § 404.6 (3d ed. 1995).
Although the trial court did not make findings as required by Tenn. R. Evid.
404(b), defendant is entitled to no relief. The defendant’s participation in each
offense was probative of his identity and established a common scheme or plan.
Furthermore, the facts of each case were identical except for the date.
This issue is without merit.
VENUE
Defendant contends the state failed to establish venue since the only
testimony relating to venue was that Kilgore Street was “[h]ere in Athens.” We
disagree with defendant’s contention.
The state must prove venue by a “preponderance of the evidence.” Tenn.
Code Ann. § 39-11-201(e). The state’s proof indicated that the drug transactions
took place in Athens. The jury could properly determine that Athens is in McMinn
County. See State v. Marbury, 908 S.W.2d 405, 408 (Tenn. Crim. App. 1995);
State v. Chadwick, 750 S.W.2d 161, 165 (Tenn. Crim. App. 1987). Furthermore,
both the defendant and the state have overlooked the testimony of Detective Bill
Matthews, who monitored all three transactions, and responded affirmatively when
asked if “all these events occurred in McMinn County, Tennessee.”1
1 See Trial Transcript, page 14.
4 SENTENCING
In his final issue Defendant contends the trial court erred in its determination
of enhancement and mitigating factors and imposed an excessive sentence. We
disagree.
This Court’s review of the sentence imposed by the trial court is de novo with
a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This presumption
is conditioned upon an affirmative showing in the record that the trial judge
considered the sentencing principles and all relevant facts and circumstances.
State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The pre-sentence report indicates that the defendant had 17 prior
convictions, including 11 felony convictions. Many of the felony convictions
apparently were committed on the same date, thereby limiting defendant to a Range
II offender. Defendant was on felony probation at the time of the commission of the
instant offenses. Furthermore, defendant was on probation when he committed and
was subsequently convicted of casual exchange of drugs. However, the casual
exchange occurred after the date of commission of the present offenses but prior
to sentencing on the present offenses.
The trial court found no mitigating factors. The trial court found the following
enhancement factors: previous history of criminal convictions in addition to those
necessary to establish Range II punishment; previous history of unwillingness to
comply with the conditions of a sentence involving release in the community; and
commission of the instant felonies while on probation for a felony. See Tenn. Code
Ann. § 40-35-114(1), (8), (13)(C).
Defendant contends the trial court erred in failing to find as a mitigating factor
that defendant’s conduct neither caused nor threatened serious bodily injury. See
5 Tenn. Code Ann. § 40-35-113(1). This factor need not be applied to those
convicted of selling cocaine. State v. Vanderford, 980 S.W.2d 390, 407 (Tenn.
Crim. App. 1997).
Defendant finally contends the trial court erred in finding a previous history
of unwillingness to comply with conditions of a sentence involving release in the
community. Tenn. Code Ann. § 40-35-114(8). Although defendant concedes he
was convicted of the casual exchange of drugs which was committed while he was
on probation for a prior offense, he argues this enhancement factor is not applicable
since the commission of that offense occurred after the commission of the present
offenses. A criminal conviction or criminal behavior occurring prior to the
sentencing hearing may be considered as evidence of a prior history of criminal
convictions or criminal behavior under Tenn. Code Ann. § 40-35-114(1), regardless
of whether the criminal behavior occurred before or after the commission of the
offense under consideration. See State v. Burl Jarrett, C.C.A. No. 02C01-9710-CC-
00418, Hardeman County (Tenn. Crim. App. filed August 21, 1998, at Jackson);
State v. John Allen Chapman, C.C.A. No. 01C01-9604-CC-00137, Grundy County
(Tenn. Crim. App. filed September 30, 1997, at Nashville). Regardless of whether
the questioned conviction is considered under enhancement factor (1) or
enhancement factor (8), we see no reason to reduce the sentence.
CONCLUSION
For these reasons, we AFFIRM the judgment of the trial court.
6 ____________________________ JOE G. RILEY, JUDGE
CONCUR:
____________________________ GARY R. WADE, PRESIDING JUDGE
____________________________ DAVID H. WELLES, JUDGE