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State v. Dunn

Court of Criminal Appeals of Tennessee, Nashville

February 17, 2017

STATE OF TENNESSEE
v.
TIMOTHY DUNN

          Assigned on Briefs January 10, 2017

          Appeal from the Circuit Court for Robertson County No. 74CC2-2014-CR-144 William R. Goodman, III, Judge

         A Robertson County jury convicted the Defendant, Timothy Dunn, of sale of cocaine within 1, 000 feet of a school and delivery of cocaine within 1, 000 feet of a school. The trial court merged the two convictions and sentenced the Defendant to serve seventeen years in the Tennessee Department of Correction. On appeal, the Defendant argues that: (1) the trial court erred when it denied his request for a continuance; (2) the trial court erred when it allowed Detective Eddie Stewart to testify when he was not listed on the indictment; (3) the evidence is insufficient to support his conviction; and (4) his sentence is excessive. After review, we affirm the trial court's judgment.

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

          Leticia F. Alexander (on appeal), Nashville, Tennessee, and Collier W. Goodlett (at trial), Clarksville, Tennessee, for the appellant, Timothy Dunn.

          Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant Attorney General; John W. Carney, Jr., District Attorney General; and Jason White, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert W. Wedemeyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Robert L. Holloway, Jr., J., joined.

          OPINION

          ROBERT W. WEDEMEYER, JUDGE

         I. Facts

         This case arises out a controlled buy between the Defendant and a confidential informant ("CI") that occurred within a thousand feet of Bransford Elementary School. A Robertson County grand jury indicted the Defendant for sale of cocaine within 1, 000 feet of a school and delivery of cocaine within 1, 000 feet of a school. At trial, the parties presented the following evidence:

         James M. Davis, the Director of Schools for the Robertson County Board of Education, testified that Bransford Elementary, located in Springfield, Tennessee, is a school that serves kindergarten and preschool students. He estimated that approximately two hundred students attend Bransford Elementary.

         David Brewer, a City Engineer for the City of Springfield, testified that he created a map with a "thousand foot zone" around Bransford Elementary with the use of GPS equipment. Mr. Brewer confirmed that the intersection of Elmwood Drive and 15thAvenue is within a thousand feet of Bransford Elementary.

         The CI testified that she first used cocaine when she was fifteen years old. She described her cocaine use as recreational until the age of twenty-six or twenty-seven. At that time, she was introduced to crack cocaine and developed a daily habitual use of the drug. The CI recalled that, in August 2013, she agreed to work with narcotic officers Detective Eddie Stewart and Detective Eric Elliott. The CI said that her role was to arrange to purchase one gram of crack cocaine from James Johnson, Jr., a co-defendant. The CI stated that she had known the Defendant for several years.

         On August 21, 2013, the CI met with Detective Stewart and Detective Elliott, and they searched the CI and her vehicle. The CI contacted James Johnson, Jr. and arranged to buy one gram of crack cocaine for fifty dollars. The telephone conversation between the CI and Mr. Johnson was recorded, and the recording was played for the jury. In the recording, the CI asked Mr. Johnson how much for a "G." Mr. Johnson responded, "[F]ifty." He then told the CI where to meet him for the exchange. Following this phone conversation, the detectives provided the CI with three twenty dollar bills and a video surveillance device for her car. The CI then drove to 15th and Elmwood to buy one gram of crack cocaine.

         The CI testified that she parked at "a project" located "at the bottom of 15th on the right hand side." Shortly thereafter, Mr. Johnson and the Defendant pulled in behind and to the left of the CI's vehicle in a light-colored van. The Defendant exited the van and handed the CI a "tied up baggie" containing a gram of crack cocaine. In return, the CI handed the Defendant the sixty dollars of "buy money" the detectives had provided. The Defendant then reached into the van and retrieved two five dollar bills in change and gave it to the CI. After receiving the change, the CI drove to a prearranged location to meet with the detectives. The CI turned ...


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