Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Click

Court of Criminal Appeals of Tennessee, Knoxville

March 30, 2017

STATE OF TENNESSEE
v.
JAMIE PAUL CLICK

         Session November 16, 2016

         Appeal from the Circuit Court for Sevier County No. 18116-II Richard R. Vance, Judge

         The 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.[1] Following our review of the record, we affirm the judgments of the trial court.

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

          Wesley D. Stone, Knoxville, Tennessee, for the appellant, Jamie Paul Click.

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE.

         FACTUAL BACKGROUND

         This 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.

         At 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.

         Detective 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 services.

         Det. 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."

         Det. 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.

         An 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.

         The 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, [2] and McNamara.

         After 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.

         Det. 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.

         Ms. 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.[3] 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 exhibits.

         Det. 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.

         Utilizing 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.

         SPD 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.

         Returning 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.

         On 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.

         Later 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.

         Mr. 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.

         Det. 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.

         Mr. 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.

         Following 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 followed.

         ANALYSIS

         On 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.

         I. Motion to Sever

         The 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).

         On 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.

         At the 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 following argument:

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[.]

         The trial court thereafter denied the motion to sever, reasoning as follows:

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 defendant.

         A trial 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).

         Tennessee 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."[4] 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).

         As our 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 943).

         We 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.

         The 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.

         Turning 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 for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.