Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 11, 2015
Appeal from the Circuit Court for Bedford County No. 17749 Forest A. Durard, Jr., Judge
Donna Orr Hargrove, District Public Defender, and Andrew Jackson Dearing III, Assistant Public Defender, Shelbyville, Tennessee, for the appellant, Rubalddi Espinoza Yoc.
Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney General; Robert Carter, District Attorney General; and Michael Randles, Assistant District Attorney General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the Court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.
TIMOTHY L. EASTER, JUDGE
Defendant was indicted by the Bedford County Grand Jury on October 28, 2013, for one count of possession with intent to sell 0.5 grams or more of a Schedule II controlled substance and one count of delivery of 0.5 grams or more of a Schedule II controlled substance. A jury trial was held on February 12, 2014, at which the following proof was adduced:
Lieutenant Shane Daugherty of the 17th Judicial District Drug Task Force was contacted by Gregorio Alcarez Soto, a paid confidential informant. Mr. Soto informed the Drug Task Force that Defendant was looking to sell an ounce of cocaine. Mr. Soto had been a confidential informant for the Drug Task Force on several cases in Nashville and Smyrna and had performed reliably in the past. Mr. Soto arranged for Agent Chris Smith, an undercover officer, to purchase the cocaine from Defendant in Shelbyville for $1, 400. The Drug Task Force intended to arrest Defendant immediately after Agent Smith gave the signal that the transaction had been completed in what is known as a "buy/bust."
On May 1, 2013, Mr. Soto drove Defendant to the specified location-a Kroger parking lot-around 2:30 p.m. Agent Smith was already in the parking lot, wearing street clothes and an audio recording device. Other officers were also positioned throughout the parking lot in undercover vehicles. The recording device transmitted to a receiver in Lieutenant Daugherty's vehicle so that he could hear the transaction in real time. There was also a camera in Lieutenant Daugherty's vehicle to film the arrest; however, the camera was not in a position to film the transaction.
Lieutenant Daugherty observed Mr. Soto's vehicle pull into the parking lot with Defendant in the front passenger seat. Agent Smith's car was backed into a parking space, and Mr. Soto pulled into the adjacent parking space so that Defendant's door was next to Agent Smith's door. Lieutenant Daugherty observed Agent Smith exit his vehicle and approach the passenger side door where Defendant was sitting. Defendant's window was open. Agent Smith showed a "flash roll"-a wad of money used to assure a potential drug dealer that the buyer is not intending to rip him off-then put the money back in his pocket. Lieutenant Daugherty observed Agent Smith reach his hands through Defendant's window. Then Agent Smith gave the visual and audio signals that the transaction was complete, and the Drug Task Force officers moved their cars to block Defendant from potentially attempting to flee. Both Mr. Soto and Agent Smith were arrested along with Defendant so as not to reveal their undercover identity; they were later released once Defendant had been taken into custody and removed from the scene.
Lieutenant Daugherty searched the passenger side of Mr. Soto's vehicle where Defendant had been sitting. He discovered a plastic shopping bag with cocaine tied in a corner on the passenger side floorboard next to a caulk gun. Although Lieutenant Daugherty had searched Mr. Soto's vehicle on several prior occasions, he had never before observed a caulk gun or any kind of construction tool or equipment inside Mr. Soto's car. The cocaine appeared to be approximately one ounce, which Lieutenant Daugherty explained was an amount typical of a "mid-level dealer." Lieutenant Daugherty turned the cocaine over to Agent Smith, and it was eventually sent to the Tennessee Bureau of Investigation ("TBI") for testing.
Mr. Soto had known Defendant for approximately two months prior to the drug transaction. He met Defendant at a Mexican restaurant in Smyrna where Mr. Soto worked. Mr. Soto learned that Defendant sold cocaine, so he told Defendant that he knew of a buyer in Shelbyville who wanted to buy an ounce of cocaine. Defendant told Mr. Soto that he planned to sell an ounce of cocaine in Shelbyville and that he intended to return to sell more drugs in the future. The Drug Task Force paid Mr. Soto to provide information concerning drug dealers, so Mr. Soto called Lieutenant Daugherty and arranged for an undercover officer to buy cocaine from Defendant in Shelbyville.
Mr. Soto picked up Defendant, who did not have a car, at a trailer park in Smyrna and drove him to Shelbyville. When Defendant got into Mr. Soto's car, Defendant was carrying a caulk gun. Defendant explained to Mr. Soto that the caulk gun was a good place to hide drugs. Defendant ...