Court of Criminal Appeals of Tennessee, Knoxville
November 16, 2016
from the Circuit Court for Sevier County No. 18116-II Richard
R. Vance, Judge
Defendant, Jamie Paul Click, was convicted of one count each
of selling heroin within a drug-free school zone, delivering
heroin within a drug-free school zone, and casually
exchanging marijuana; and two counts each of delivering
heroin and selling heroin. The trial court merged the three
delivery convictions with the corresponding sale convictions
and imposed an effective sentence of eighty years'
incarceration. In this appeal as of right, the Defendant
raises challenges to the following: (1) the trial court's
refusal to sever the offenses, contending that each drug deal
should have been tried separately because his conduct was not
part of a common scheme or plan and, additionally, that
evidence of the drug-free school zone deal was prejudicial to
the other counts; (2) the sufficiency of the convicting
evidence supporting his various convictions for sale and
delivery of heroin, arguing that all of the transactions were
merely casual exchanges and that there was inadequate proof
that the one transaction occurred within a drug-free school
zone; and (3) various aspects of the trial court's
sentencing decision, including the Defendant's range
classification, the length of his sentences, the imposition
of consecutive sentences, and the subsequent denial of his
motion to reduce his total effective sentence. Following our
review of the record, we affirm the judgments of the trial
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
D. Stone, Knoxville, Tennessee, for the appellant, Jamie Paul
Herbert H. Slatery III, Attorney General and Reporter;
Jonathan H. Wardle, Assistant Attorney General; James B.
("Jimmy") Dunn, District Attorney General; and
George C. Ioannides, Assistant District Attorney General, for
the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ.,
KELLY THOMAS, JR., JUDGE.
case relates to controlled drug purchases conducted by the
Sevierville Police Department ("SPD") in September
2012. Thereafter, the Defendant was charged with alternate
counts of selling and delivering heroin on September 5, 2012,
within a drug-free school zone (Counts 1 and 2), Class A
felonies; one count of casually exchanging marijuana on
September 10, 2012 (Count 3), a Class A misdemeanor;
alternate counts of selling and delivering heroin on
September 10, 2012 (Counts 4 and 5), Class B felonies; and
alternate counts of selling and delivering heroin on
September 11, 2012 (Counts 6 and 7), likewise Class B
felonies. See Tenn. Code Ann. §§
39-17-417, -418, -432. The Defendant proceeded to a jury
trial, Eric Blalock testified that, in 2012, he ran into the
Defendant, whom he had known for "[a]t least
fifteen" years, at Sunoco gas station, and a
conversation ensued. Mr. Blalock said that, during their
talk, the Defendant asked him if he was "messing with
anything at the time[, ]" which Mr. Blalock understood
to mean "[d]oing any drugs or anything." The men
exchanged telephone numbers and went their separate ways. A
couple of days later, Mr. Blalock "was needing to make
some money[, ]" so he started working with the SPD as a
"cooperating individual" ("CI").
According to Mr. Blalock, he had been offered this
opportunity to work as a CI when his "wife was picked up
on a theft charge" and the authorities asked him
"if [he] could help them out." Mr. Blalock
confirmed that he was paid for his services, approximately
$100 per buy.
Josh Turner was employed with SPD as a narcotics investigator
in 2012. He testified that he began working as an
investigator approximately two years prior to that time. He
also had seven years of previous experience as a narcotics
investigator with the Knox County Sheriff's Department.
According to Det. Turner, he would often use CIs in narcotics
investigations, and it was customary for CIs to get paid or
receive help on pending charges in exchange for their
Turner testified that, in "street level" drug
transactions, typically only "smaller amounts" of
drugs were purchased for personal use and small purchases
were made frequently once money became available. Det. Turner
also said that "street level dealers" did not
usually carry large amounts of drugs on their person,
especially when making deals. This, according to Det. Turner,
was because they were afraid of being arrested while in
possession of a large amount of drugs. When asked why the
police might not arrest someone immediately for selling
drugs, Det. Turner replied, "[W]e'll do several buys
to show that they are a drug dealer and they're just not
doing it to help a friend out or doing favors[.]" The
police, Det. Turner testified, may also be "try[ing] to
find out where they're supplied."
Turner confirmed that Mr. Blalock and his wife, who was
"being looked at on a charge" by the "Criminal
Investigation Division[, ]" contacted him in 2012, and
he set up a meeting with the couple. At the meeting which
followed, Det. Turner enrolled Mr. Blalock as a CI, and it
was agreed that Mr. Blalock would be paid for services.
According to Det. Turner, Mr. Blalock was unemployed and
staying with his grandfather at the time of the meeting. Det.
Turner testified that he used Mr. Blalock "in a number
of investigations" over a period of three or four years
and that Mr. Blalock was compensated approximately $2600 in
total for his work.
undercover investigation, Det. Turner said, began with the
CI's identifying a possible "target" from whom
they could buy drugs. After the target had been identified,
the CI would place a recorded phone call to that individual
"to see if they [could] purchase anything that day to
see if they have anything." If a purchase was imminent,
Det. Turner met with the CI. Det. Turner explained that the
CI was searched along with any vehicle driven by the CI and
that the CI was then provided with photographed money to
purchase the drugs. According to Det. Turner, the CI was also
outfitted with a "wire, " allowing the police to
listen to the transaction as it was taking place, and a
"recording device, " capturing either a video or
audio recording of the drug deal. Once the purchase was
consummated, the CI returned to the officers, turned over the
drugs, and was searched again.
first controlled purchase of heroin involving the Defendant
and Mr. Blalock occurred on September 5, 2012. On that day,
Mr. Blalock, under police supervision, called the Defendant
and arranged to meet at a local Kroger to purchase a small
quantity of heroin. Following the procedure previously
detailed, Det. Turner prepared Mr. Blalock for the
transaction. Thereafter, Det. Turner, in a vehicle being
driven by Tennessee Bureau of Investigation ("TBI")
Agent Greg McNamara, followed Mr. Blalock to the Kroger
parking lot. Assisting Det. Turner with the controlled
purchase that day were Agents Steve Kitts, Norton,
waiting in the Kroger parking lot a while, Det. Turner
requested that Mr. Blalock call the Defendant to see if he
still planned on coming. The Defendant answered Mr.
Blalock's call and said that he was "parked behind
the Clarion Inn, that he was having truck trouble." The
Defendant told Mr. Blalock that he was driving a red Chevy
truck, which Det. Turner later determined was registered to a
"Jeff Click." Upon Det. Turner's directive, Mr.
Blalock began driving towards the Clarion Inn, but just as
Mr. Blalock was leaving Kroger, Heather Arwood phoned Mr.
Blalock and told Mr. Blalock to meet the Defendant at the
Taco Bell on Winfield Dunn Parkway instead of at the Clarion
Inn. All parties proceeded towards the Taco Bell.
Turner observed Mr. Blalock pull his vehicle into the
"Exxon/Taco Bell area." So as not to be suspicious,
Agt. McNamara and Det. Turner continued driving past the Taco
Bell. After quickly turning around and heading back for the
Taco Bell, Det. Turner saw Mr. Blalock's truck parked
next to a red Chevy truck and the Defendant "standing
outside between the two vehicles." Mr. Blalock testified
that the Defendant exited his truck and got inside the
passenger side of Mr. Blalock's vehicle. According to Mr.
Blalock, they then exchanged $25 for a small bag containing a
powdery substance, which was later determined to be 0.05
grams of heroin. As Agt. McNamara and Det. Turner were
entering the Exxon pulling up to the gas pump, the
Defendant's truck was heading "right at" them,
and Det. Turner was able to identify the Defendant and Ms.
Arwood as the truck's occupants. The Defendant could be
heard on the recording device during this transaction
instructing Mr. Blalock on how to use the heroin
intravenously; telling Mr. Blalock that he should like the
heroin better than "R, " meaning Roxicodone, and
that heroin's effects last longer; and informing Mr.
Blalock that, if Mr. Blalock wanted to ride with the
Defendant to his supplier, Mr. Blalock would be able to buy
ten bags of heroin for $120.
Stacey Whaley, the director of Sevier County Geographical
Information Systems ("GIS"), testified about the
maps she created showing the area where the September 5, 2012
transaction occurred and averred that they accurately
reflected how the property looked in 2012. For the
Defendant's trial, she created several maps providing
aerial views of Taco Bell and Cattlesburg Elementary School
with parcel lines drawn. In several of the maps, the elementary
school can be seen nearby to the northwest of the restaurant.
Ms. Whaley stated that Sevier County School Board owned two
tracts of land involving Cattlesburg Elementary-the initial
tract of land being the school and school's grounds
("Tract 3"), and the second parcel was a
right-of-way that was later deeded to the school board and
that was the primary method of ingress and egress from the
school, including the route travelled by school buses. Two
certified deeds governing these parcels were entered into
evidence. Also two certified maps depicting the parcels in
the area comprising "United Commercial Park, "
which included both the school and restaurant, were made
Turner identified one of the aerial view maps and stated that
the map "fairly and accurately reflect[ed] the geography
on the day that this drug transaction occurred" between
Mr. Blalock and the Defendant. Det. Turner placed an
"X" on the map signifying the location of the drug
deal, which was near a median in the "parking area
between the Taco Bell and the Exxon[.]" Agt. McNamara
also identified this location.
a measuring wheel, Det. Turner physically calculated the
distance from the drug transaction's location, which
location he designated as location number one, to several
different places inside the school's boundaries. The
first measurement was 185 feet from the where the drug deal
occurred and was marked by a cone numbered two. Det. Turner
also notated cone two on the aerial map, which was inside the
school's right-of-way parcel. A photograph of cone two
showed its location in a field directly across from the Taco
Bell parking lot. Another photograph from cone two looking
towards the school showed the school's main entrance road
and the Cattlesburg Elementary School's sign. Location
number three was directly in front on the school sign, and
the distance to location three from the drug deal was 250
feet, according to Det. Turner. A cone marked number four was
placed further up the entrance road at a distance measuring
500 feet from location one. Location one in the Taco Bell
parking lot can be seen in a photograph taken from cone four.
Next, Det. Turner stated that a cone designated number five
was placed on the entrance road 750 feet from location one.
The Taco Bell and Exxon were no longer visible in a
photograph taken from cone five. Finally, Det. Turner marked
the distance of 1000 feet from the drug deal's location
with a cone labeled number six, which location "was
pretty much right at the intersection of United Boulevard and
the entrance to the school." There was a stop sign
facing United Boulevard at this intersection. In a photograph
looking towards the school from cone six's location, the
elementary school and a gate in front of the school on the
entrance road can clearly be seen. Det. Turner also noted
cone six on the aerial map, and cone six was inside Tract 3,
the initial tract of land comprising the school and
school's grounds. All previously numbered locations were
on the school's right-of-way parcel.
school resource officer Tim Russell testified that he
routinely patrolled the school's grounds, including the
right-of-way, and that the school board maintained the
right-of-way. When considering ownership of the school's
right-of-way, the drug deal, Ofc. Russell said, took place
within about 150 feet from the school property line. Ofc.
Russell also stated that the "gate across the
driveway" was only used when the school was on
"full lockdown." The gate's location on the
school's property was further than 1000 feet from where
the transaction occurred in the Taco Bell parking lot.
to the ongoing narcotics investigation, Det. Turner described
a second controlled-buy attempt by Mr. Blalock to purchase
heroin from the Defendant on September 7, 2012. Mr. Blalock
again telephoned the Defendant. On the recordings, the
Defendant can be heard asking Mr. Blalock how he liked the
heroin from "the other day, " affirming that heroin
was better because it lasted longer and was cheaper than
pills, stating that he was going to "make a run here in
a minute" to obtain more drugs, and inquiring how many
bags of heroin Mr. Blalock wanted. Ultimately, the Defendant
stated that his supplier was "stalling" him, and no
drug purchase took place that day.
September 10, 2012, Mr. Blalock, once more under police
supervision, called the Defendant trying to buy heroin. The
Defendant said that "he would have some bags later on
but then he asked [Mr.] Blalock to sell some of that good
strawberry kush for him." According to Det. Turner,
strawberry kush was a strain of marijuana. Mr. Blalock told
the Defendant that he would call him back after making some
phone calls "to see if he would be able to help [the
Defendant] get rid of some of" the marijuana. Det.
Turner told Mr. Blalock to go ahead and buy the marijuana
from the Defendant. They arranged to meet at a local Walmart,
with the understanding that the Defendant would obtain heroin
to sell Mr. Blalock later that day. After following the same
established procedure for CI drug buys, Det. Turner dropped
Mr. Blalock off at the Walmart and observed the drug deal
from a parked car. Det. Turner testified that he saw the
Defendant arrive with Ms. Arwood in a red Mustang, which was
registered to Ms. Arwood. When the couple parked, Mr. Blalock
went to the passenger-side window of the Mustang and bought
marijuana from the Defendant, trading $75 for 5.08 grams of
marijuana. The Defendant said to Mr. Blalock that he
"wished [he] knew" he was going to get this $75 for
selling marijuana because he could have already bought more
heroin from his supplier.
on September 10, Mr. Blalock called the Defendant to inquire
about the status of the heroin. The Defendant stated that he
was headed to Knoxville to get the heroin and asked Mr.
Blalock if he could front the money for the heroin purchase.
However, Mr. Blalock, upon Det. Turner's order, declined
to give the Defendant money before he was in possession of
the heroin. The Defendant stated that he understood and that
he would call Mr. Blalock about forty-five minutes before he
returned to the Sevierville area. Sometime later, they agreed
to meet at a Pilot gas station.
Blalock was dropped off and waited for the Defendant "on
the south side of the Pilot where there's a retaining
wall." In order to observe the transaction, Agt.
McNamara parked in the Pilot parking lot, and Det. Turner
parked across the street. Eventually, the Defendant arrived
as a passenger in the same red Mustang. Mr. Blalock went to
the passenger side of the vehicle, paid the money the police
provided, and received two bags of heroin, 0.07 grams in
total, from the Defendant. On this occasion, Mr. Blalock
noticed that the Defendant had six other small bags of heroin
in his lap.
Turner described a final controlled drug buy on September 11.
For this controlled purchase of heroin, the same procedures
were followed, and Mr. Blalock arrived at the predetermined
meeting location, a Chick-fil-A restaurant. The Defendant
chose the Chick-fil-A over Walmart because the Defendant
"was worried about the cameras in front of
Walmart." Again, the Defendant arrived as a passenger in
the same red Mustang. Mr. Blalock purchased two more bags
weighing 0.07 grams in total.
Blalock testified that each bag of heroin he bought from the
Defendant was enclosed in the same light blue packaging.
Furthermore, Mr. Blalock paid $50 each time for the two bags
of heroin he purchased from the Defendant, although he
unsuccessfully tried to negotiate a lower price. Furthermore,
Mr. Blalock testified that he had no other interactions with
the Defendant during the narcotics investigation, although he
did have some social involvement with the Defendant after
these transactions. Mr. Blalock testified that he "never
hung out with" the Defendant prior to September 2012,
explaining that he "had met [the Defendant] through
[his] brother years before." Mr. Blalock confirmed that
he was facing a new drug charge at the time of the
Defendant's trial; however, Mr. Blalock said that he had
not been promised any benefit in exchange for his testimony.
the presentation of evidence, the Defendant was convicted as
charged. A sentencing hearing was held, and the trial court
sentenced the Defendant to an effective eighty-year
incarcerative sentence as a Range II, multiple offender. This
appeal, the Defendant argues (1) that the trial court erred
when it denied his motion for severance of offenses; (2) that
the evidence was insufficient beyond a reasonable doubt to
establish that he sold or delivered heroin, claiming that he
was guilty of casual exchange instead, or to establish that
the September 5, 2012 transaction occurred within 1000 feet
of real property comprising an elementary school; and (3)
that the trial court made sentencing errors, including
classifying him as a Range II, multiple offender, imposing
maximum sentences within each conviction's range,
ordering consecutive sentences, and denying his subsequently
filed motion to reduce his overall sentence pursuant to Rule
35 of the Tennessee Rules of Criminal Procedure. We will
address each issue in turn.
Motion to Sever
State joined the various drug deals by charging the offenses
in the same presentment. Prior to trial, the Defendant filed
a motion to sever each transaction by date; a motion that the
trial court denied after a hearing. After the jury trial, the
Defendant was found guilty of alternate counts of selling and
delivering cocaine on September 5, 2012, within a drug-free
school zone (Counts 1 and 2); one count of casually
exchanging marijuana on September 10, 2012 (Count 3);
alternate counts of selling and delivering cocaine on
September 10, 2012 (Counts 4 and 5); and alternate counts of
selling and delivering cocaine on September 11, 2012 (Counts
6 and 7).
appeal, the Defendant argues that the trial court erred by
denying his motion to sever Counts 1 and 2; from Counts 3, 4,
and 5; and all of the preceding counts from Counts 6 and 7,
alleging that three separate trials should have been held. In
support of his argument, he asserts that the separate drug
transactions on three different dates were not part of a
common scheme or plan and that evidence of each drug
transaction would not have been admissible in the trial of
the others, resulting in "bad act evidence" being
introduced to buttress each drug buy. Furthermore, the
Defendant submits that he was unfairly prejudiced by the
introduction of the school zone evidence pertaining to Counts
1 and 2 where the subsequent transactions did not include
school zones. The State responds that each drug deal was part
of a larger, continuing plan and that the evidence of the
various offenses would have been admissible in the trials of
the others to prove the Defendant's intent.
motion to sever hearing, Det. Turner testified concerning the
three separate drug deals occurring on September 5th, 10th,
and 11th of 2012, and about the unsuccessful attempt to
purchase drugs on September 7, 2012. At the conclusion of
Det. Turner's testimony, the Defendant, noting the
"different weights, different quantities[, ] and
different drugs on different dates[, ]" made the
And so it's our position, . . . while we don't
necessarily agree that these offenses are part of a common
scheme or plan, that they would not be admissible in the
trial of the other. . . . [I]t's [the Defendant's]
position that it would be a violation of Rule 404 of the
Tennessee Rules of Evidence to allow prior bad acts allegedly
occurring on September the 5th and September the 10th in a
trial for things occurring on September 11th. And equally so
as it relates to September the 10th and September the 5th. So
it's our position that they're not admissible at the
trials of each other for the reasons of 404(b), but
particularly the standards set forth in Tennessee Rule of
Criminal Procedure 14(b)(1). The State responded that the
evidence of the things that occurred on the 7th and the 10th
and the 11th would prove the [D]efendant's intent, lack
of mistake, and those various items for the transaction on
the 5th. And likewise, the things that happened on the 5th,
the 7th and 11th, would do so for the 10th. So I think all of
the evidence . . . would be admissible on that basis in a
trial court thereafter denied the motion to sever, reasoning
In this case, the only fact [different] between the three
events are the locations. The officer is the same. The
[cooperating individual], the person making the buy, is the
same. The defendant is the same. The drugs are the same,
except the marijuana was used-that sale was used in order for
the [D]efendant to be able to fund the purchase of the
heroin, which was sold again. It appears to the [c]ourt that
these three transactions were part of a very common scheme,
plan, involving the same actors, the same type of drug, and
it was part of a common plan, and that each would be
admissible to the other to show the lack of any mistake, to
show motive, to show intent, and the identity of this
court's denial of a motion to sever is reviewed under an
abuse of discretion standard. State v. Garrett, 331
S.W.3d 392, 401 (Tenn. 2011) (citing Spicer v.
State, 12 S.W.3d 438, 442 (Tenn. 2000)). A trial court
abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its ruling
on a clearly erroneous assessment of the proof, or applies
reasoning that causes an injustice to the complaining party.
Id. (citing State v. Jordan, 325 S.W.3d 1,
39 (Tenn. 2010)). This court will also find an abuse of
discretion when the trial court has failed to consider the
relevant factors provided by higher courts as guidance for
determining an issue. State v. Lewis, 235 S.W.3d
136, 141 (Tenn. 2007).
Rule of Criminal Procedure 8(b) provides that "[t]wo or
more offenses may be joined in the same indictment" if
the offenses are either (1) "parts of a common scheme or
plan" or (2) "of the same or similar
character." However, Rule 14(b)(1) provides that if
"two or more offenses are joined . . . pursuant to Rule
8(b), the defendant has the right to a severance of the
offenses unless the offenses are part of a common scheme or
plan and the evidence of one would be admissible in the trial
of the others." Accordingly, once a defendant makes a
motion to sever or objects to a pre-trial consolidation
motion by the State, "the trial court must consider the
motion by the severance provisions of Rule 14(b)(1)"
instead of the provisions of Rule 8(b). Garrett, 331
S.W.3d at 402 (quoting Spicer, 12 S.W.3d at 443).
Upon a defendant's motion to sever, "the trial court
must hold a hearing in order to gather the information
necessary to adjudicate the issue." Id. at 403.
The trial court must sever the offenses unless it can
conclude from the evidence and arguments presented at the
hearing that: (1) the multiple offenses constitute parts of a
common scheme or plan; (2) evidence of [one] offense is
relevant to some material issue in the trial of all the other
offenses; and (3) the probative value of the evidence of
other offenses is not outweighed by the prejudicial effect
that admission of the evidence would have on the defendant.
Id. (quoting Spicer, 12 S.W.3d at 445).
supreme court has previously stated, "a common scheme or
plan for severance purposes is the same as a common scheme or
plan for evidentiary purposes." State v. Moore,
6 S.W.3d 235, 240 n.7 (Tenn. 1999). For offenses to be
considered part of a continuing scheme or plan, the crimes
must be directed toward a "common goal or purpose."
State v. Denton, 149 S.W.3d 1, 15 (Tenn. 2004)
(quoting State v. Hoyt, 928 S.W.2d 935, 943 (Tenn.
Crim. App. 1995)) (internal quotation marks omitted). This
"requires proof of 'a working plan, operating
towards the future with such force as to make probable the
crime for which the defendant is on trial."'
State v. Allen Prentice Blye, No.
E2001-01375-CCA-R3-CD, 2002 WL 31487524, at *5 (Tenn. Crim.
App. Nov. 1, 2002) (quoting Hoyt, 928 S.W.2d at
agree with the trial court's assessment that the three
sets of offenses, occurring within a one-week time period,
all involving the same cooperating individual, same
defendant, and his same companion, Ms. Arwood, were part of a
common scheme or plan to sell and deliver heroin. The
offenses also involved the same geographical area. Det.
Turner testified that the buys involved virtually the same
sequence of events. Except for the marijuana sale, each buy
involved a similar amount of heroin. The money from the
marijuana sale was used to purchase more heroin to sell to
Mr. Blalock. This court has repeatedly acknowledged
"common scheme or plans" involving drug
transactions with similar factual patterns. See,
e.g., State v. Garrick Graham, No.
E2014-01267-CCA-R3-CD, 2016 WL 892013, at *6 (Tenn. Crim.
App. Mar. 8, 2016) (concluding that the evidence-"[a]ll
but one of the offenses in this case took place during a
period of time from September 1, 2011, through October 24,
2011, and involved the same controlled substance, the same
[cooperating individual], and either [the defendant or his
co-defendant] or both"; the "offenses also involved
the same area in Kingsport"; and an officer testified
that "the buys involved virtually the same sequence of
events"- established a larger continuing plan to supply
the cooperating individual with progressively greater
quantities of crack cocaine); Grimes, 2013 WL
5761301, at *3-4; State v. Patrick L. Maliani, No.
M2012-01927-CCA-R3-CD, 2013 WL 3982156, at *12-13 (Tenn.
Crim. App. Aug. 5, 2013) (holding that the "two offenses
were part of a continuing criminal scheme" because the
same cooperating individual sought to purchase drugs from the
same seller, the defendant was present at both drug sales and
acted as a look out on both occasions, and each time, a small
quantity of crack cocaine was purchased); State v. Joseph
Clyde Beard, Jr., No. 03C01-9502-CR-00044, 1996 WL
563893 (Tenn. Crim. App. Sept. 26, 1996) (finding
"common scheme" where same individual purchased
similar amounts of cocaine from the same defendant for the
same amount of money in the same location although the drug
transactions occurred a month apart); State v. Roger D.
Pulley, No. 01C01-9501-CC-00013, 1995 WL 555060, at *2
(Tenn. Crim. App. Sept. 20, 1995) (concluding that a
severance was inappropriate when the five drug offenses
"[o]ccurred within eight weeks of one another and
involved virtually the same sequence of events, the same
[cooperating individual], and the same established
procedure"); State v. Steve Mosley, No.
01C01-9211-CC-00345, 1993 WL 345542, at *4 (Tenn. Crim. App.
Sept. 9, 1993) ("[I]n the case at bar, four of the
indicted offenses occurred within a three-day period and the
other occurred approximately six weeks later. All of the
offenses involved the same controlled substance, the same
defendant, the same [cooperating individual] and the same
witnesses. It was such a continuous episode so closely
related that the proof was essentially the same in each
case."). Moreover, we note that there is no requirement
that "each incident be identical to the previous
one." Pulley, 1995 WL 555060, at *2.
Defendant relies on State v. Reba Nell Woods, No.
M2012-01922-CCA-R3-CD, 2013 WL 6406275 (Tenn. Crim. App. Dec.
9, 2013), in support of his argument that three separate
transactions were not part of larger, continuing plan. In
that case, a panel of this court held that "nothing
indicated that the [defendant's] drug sales to [the
cooperating individual] were part of a working plan with a
readily distinguishable goal" but were "to the
contrary, . . . simply a string of similar offenses."
2013 WL 6406275, at *12. But cf. State v. Donald Ray
Blevins, No. M2009-00124-CCA-R3-CD, 2010 WL 1687736, at
*6-8 (Tenn. Crim. App. Apr. 26, 2010) (concluding that
multiple telephone calls setting up separate buys did evince
a common scheme or plan). The present case is readily
distinguishable from Woods. In Woods, the
cooperating individual made calls to the defendant and
arranged to buy drugs from a third party. The dates of the
various drug deals spanned over a month, and the defendant
argued that she "did not have anything to do with the
drug transactions[, ]" even presenting testimony to that
effect from one of the sellers. 2013 WL 6406275, at *1-8,
*10. Here, the Defendant was present at every drug deal, all
taking place within a one-week period, and he can be heard on
the tape recordings instructing Mr. Blalock on how to use the
heroin and asking Mr. Blalock to help him sell drugs. The
Defendant's reliance on Woods is misplaced.
to the second factor of Rule 14(b)(1), a primary issue of any
severance case is whether the evidence of one offense would
be admissible in the trial of the other if the two offenses
remained severed. Garrett, 331 S.W.3d at 402. Put
another way, a severance motion is essentially "'a
question of evidentiary relevance.'" Id.
(quoting Spicer, 12 S.W.3d at 445). In order to
determine whether "evidence of one [offense] would be
admissible in the trial of the other, " a trial court,
in essence, must determine whether proof of a defendant's
alleged bad act may be admitted in his trial for another
alleged bad act. See State v. Dotson, 254 S.W.3d
378, 387 (Tenn. 2008). Thus, this determination implicates
Tennessee Rule of Evidence 404(b), which excludes evidence of
"other crimes, wrongs, or acts" committed by the
defendant when offered only to show the defendant's
propensity to commit the crime charged. This is because such
evidence lacks relevance and invites the finder of fact to
infer guilt from propensity. Garrett, 331 S.W.3d at
402-03. However, evidence of prior bad acts may be admissible