State of Tennessee v. Cody Darand Marks ( 2018 )


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  •                                                                                                11/13/2018
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    September 18, 2018 Session
    STATE OF TENNESSEE v. CODY DARAND MARKS
    Appeal from the Circuit Court for Giles County
    No. CR-12948       Russell Parkes, Judge
    ___________________________________
    No. M2018-00020-CCA-R3-CD
    ___________________________________
    Defendant, Cody Darand Marks,1 was convicted of one count of .5 grams or more of
    cocaine within 1000 feet of a school zone and was sentenced as a Range II offender to
    fifteen years of incarceration with mandatory minimum service of twelve years at 100%.
    On appeal, Defendant argues the evidence is insufficient to sustain his conviction because
    the State failed to prove beyond a reasonable doubt the amount of cocaine that was
    exchanged within the drug free zone as opposed to the amount that was exchanged earlier
    at a separate location. Based on his same argument regarding the weight of the cocaine,
    Defendant additionally argues that the trial court erred by failing to grant his motion for
    judgment of acquittal, erred by failing to overturn the verdict as thirteenth juror, and erred
    by failing to provide an enhanced unanimity instruction to the jury. Upon our review of
    the record and applicable authorities, we affirm the judgment of the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
    WILLIAMS, P.J., and J. ROSS DYER, J., joined.
    Robert W. Curtis III, Pulaski, Tennessee, for the appellant, Cody Darand Marks.
    Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
    Attorney General; Brent Cooper, District Attorney General; and Jonathan W. Davis,
    Assistant District Attorney General, for the appellee, State of Tennessee.
    OPINION
    1
    Defendant’s middle name is spelled variously as “Darand,” “Duran,” and “Durand” in the
    technical record. The policy of this Court is to use the spelling as set out in the indictment.
    Factual and Procedural Background
    Defendant was indicted by a Giles County grand jury of one count of sale of .5
    grams or more of cocaine within 1000 feet of a school zone, specifically Bridgeforth
    Middle School. The indictment was subsequently amended to allege a sale within 1000
    feet of a drug free zone, specifically North End Park.2 Trial commenced on February 6,
    2017, at which the following facts were adduced.
    In June of 2015, Joshua Higdon was working as a criminal informant for the
    Pulaski Police Department. Mr. Higdon testified that he was paid $100 for each
    controlled drug buy. Mr. Higdon had several prior felony convictions in California and
    Tennessee, including for possessing and selling drugs. Investigator Gerrod Shirey, a
    narcotics investigator with the Pulaski Police Department, explained that the police use
    criminal informants to conduct controlled drug buys because they are more familiar with
    the situation and because drug dealers are more comfortable selling to people they know.
    At trial, Mr. Higdon admitted that he was a drug addict and that he was currently
    incarcerated for violating his felony probation by testing positive for methamphetamine.
    Mr. Higdon testified that methamphetamine was his “drug of choice” but that he was also
    using crack cocaine in June of 2015. Mr. Higdon denied using drugs during the
    transaction at issue. Investigator Kenneth Bass, also a narcotics investigator with the
    Pulaski Police Department, testified that he is familiar with people under the influence of
    narcotics, that he will not send out an informant who is intoxicated, and that the case is
    “messed up” if the informant returns intoxicated. Investigator Bass testified that Mr.
    Higdon did not appear to be under the influence at the time of this transaction but agreed
    that Mr. Higdon was “fidgety by nature.”
    On June 9, 2015, Mr. Higdon contacted Defendant about purchasing two grams of
    crack cocaine, which was usually priced at $100 per gram. Mr. Higdon testified that he
    initially asked for one gram but then asked for two because “the officers wanted more.”
    Mr. Higdon met with Investigators Shirey and Bass at an undeveloped subdivision in a
    secluded area about five or six miles outside of town. Investigator Shirey searched Mr.
    Higdon and his truck while Investigator Bass provided Mr. Higdon with $200 cash and
    audio recording equipment. Investigator Shirey testified that he gave Mr. Higdon a
    thorough pat down, checked his pockets, and then searched anywhere in the cab of the
    truck where drugs or weapons could be hidden, including inside the glove box.
    Investigator Shirey did not recall seeing anything in the bed of Mr. Higdon’s truck and
    did not search under the hood. Even though the plan was for Mr. Higdon to meet
    2
    The State filed its motion to amend the indictment on January 31, 2017. The amended
    indictment was read into the record after jury selection. The trial court then held a bench conference to
    place on the record that the parties had discussed the motion to amend in a conference call prior to trial
    and that the motion to amend had been granted.
    -2-
    Defendant at Mr. Higdon’s house, neither of the officers searched Mr. Higdon’s house for
    contraband. Mr. Higdon denied that he kept any drugs at his house other than marijuana.
    Mr. Higdon returned to his house and waited for Defendant outside by his truck so
    that the officers could see him. Investigators Shirey and Bass drove up and down the
    street in an unmarked police car in order to monitor their informant; however, they could
    not maintain constant surveillance because of the potential of being recognized as police.
    Investigator Shirey testified that every time they passed Mr. Higdon’s house, he was
    outside and appeared to be working on his truck. Mr. Higdon testified that when
    Defendant arrived, they went inside the house briefly because Defendant did not want to
    be outside to make the exchange. According to Mr. Higdon, Defendant “didn’t have all
    of the - - what I wanted.” Mr. Higdon testified that Defendant offered to obtain the rest
    of the drugs and meet Mr. Higdon at Bad Habits, a convenience store “right around the
    corner,” to complete the transaction. In the audio recording, Defendant can be heard
    saying that he will go “right down the street and get the other hundred.” Mr. Higdon
    testified, “So I kept half the money, kept half the substance.” Mr. Higdon then contacted
    Investigator Shirey to ask whether he should turn over what he had and the extra buy
    money or whether he should meet Defendant again to complete the transaction. Mr.
    Higdon did not meet with the officers prior to heading to Bad Habits. Investigator Shirey
    admitted that he was not sure how much, if any, of the drugs Mr. Higdon received while
    inside his house.
    After a few minutes, Mr. Higdon drove to Bad Habits, which he estimated was
    about three blocks from his house. Mr. Higdon testified that it was Defendant’s idea to
    meet at Bad Habits. Investigators Shirey and Bass drove to that area to continue their
    surveillance while Investigator Ryan Southerland parked at a gas station across the street
    to record the transaction with a video camera. The video recording shows Defendant
    walking down the road toward the store and Mr. Higdon sitting in his truck in the parking
    lot of Bad Habits. Investigator Bass testified that Investigator Southerland would have
    informed him if anyone else had approached Mr. Higdon’s truck prior to the start of the
    recording. The video shows Defendant getting into the passenger side of Mr. Higdon’s
    truck and engaging in a short conversation. Mr. Higdon testified that Defendant
    exchanged the remainder of the drugs while inside his truck. Mr. Higdon agreed that he
    went inside the store at one point, which is not depicted on the video recording, but he
    denied purchasing drugs from anyone while inside.
    Mr. Higdon testified that when he pulled out of the parking lot, he thought he saw
    Defendant’s girlfriend following him in a silver Impala. In the video, a silver car can be
    seen leaving the parking lot after Mr. Higdon’s truck. Because he believed that he was
    being followed, Mr. Higdon first drove home rather than directly to the designated
    meeting place. After waiting for a few minutes, Mr. Higdon believed he was still being
    followed, “[s]o [he] rerouted and [he] got lost.” Mr. Higdon explained that at the time, he
    -3-
    had lived in Pulaski for only a few months and was not familiar with the area.
    Investigator Shirey testified that even though Mr. Higdon had been working as an
    informant for a while and had participated in five or more drug buys for the police
    department, this was the first time they had used this particular meeting location.
    Investigator Shirey agreed that he lost sight of Mr. Higdon for what “seemed like
    forever” but was actually about fifteen or twenty minutes. Mr. Higdon called
    Investigator Shirey while he was driving around, relaying various landmarks and
    directions, and Investigators Shirey and Bass drove around searching for Mr. Higdon.
    Mr. Higdon agreed that one of the areas he drove through was the Meadowbrook
    neighborhood, which he characterized as “dope central,” but he denied meeting anyone or
    having drugs stashed somewhere on the side of the road.
    When Mr. Higdon finally met up with the officers, he gave them “all the
    substance” he had purchased from Defendant, which field tested positive for cocaine.
    The officers searched Mr. Higdon and his truck again. Special Agent Brett Trotter, a
    forensic scientist with the Tennessee Bureau of Investigation, described the substance as
    a compressed powder rather than a solid rock, like “sugar [that] had gotten slightly wet.”
    Agent Trotter determined the substance to be 1.25 grams of cocaine base. Using a
    measuring wheel, Investigator Shirey measured the distance between the location of the
    drug sale in the parking lot of Bad Habits and a sign designating North End Park across
    the street as 164 feet. The distance from Mr. Higdon’s house to either the park or a
    nearby daycare center was not measured.3
    At trial, much was made of whether there was one sale of drugs or two. Mr.
    Higdon as well as Investigators Shirey and Bass testified about previous experience with
    drugs deals in which the buyer gives money to the dealer and then waits for the dealer to
    return with the drugs. Mr. Higdon initially agreed with defense counsel that there were
    two transactions and two packages of crack cocaine. However, on redirect examination,
    Mr. Higdon agreed that the original intent in setting up this transaction was to purchase
    two grams of crack cocaine for $200 and that the transaction was started at his house and
    completed at Bad Habits. Mr. Higdon testified that if there had been two sales, he would
    have expected to be paid $100 for each transaction and would have been searched again
    by the officers before heading to Bad Habits. On recross-examination, Mr. Higdon again
    agreed with defense counsel that there were two transactions and that money and drugs
    changed hands two different times. Agent Trotter testified that he received a manila
    envelope from the Pulaski Police Department containing a single plastic baggie of
    compressed powder for testing. Investigator Bass testified that he could not say why the
    3
    In ruling on Defendant’s motion for judgment of acquittal, the trial court noted that the
    indictment specified a sale within 1000 feet of a park and held that any argument with regard to the
    proximity of Mr. Higdon’s house to the daycare center would constitute an impermissible variance.
    -4-
    cocaine was not split into two separate bags and explained that sometimes crack cocaine
    is not in a bag at all when it is exchanged.
    At the close of the State’s case in chief, Defendant made a motion for judgment of
    acquittal on the ground that the jury would not be able to determine whether more than .5
    grams of cocaine was sold within the drug free zone. The trial court initially denied the
    motion until the close of all proof. Defendant chose not to testify or present any proof
    and renewed his motion for judgment of acquittal. The trial court stated that it “had
    trouble with a number of questions” regarding the fact that there was “one weight proven
    of cocaine, and yet having two parts of one transaction or two transactions[.]” The trial
    court took the motion under advisement and submitted the case to the jury. After each
    side presented closing argument, the jury returned a verdict of guilty on the charged
    offense of sale of more than .5 grams of cocaine with 1000 feet of a drug free zone. The
    trial court stated, “For the purposes of the record, the [c]ourt accepts the verdict as
    returned by the jury.”
    At a separate hearing on May 10, 2017, the trial court again considered the motion
    for judgment of acquittal. Defendant focused his argument on the amount of cocaine
    exchanged at each location, arguing that “the jury could not have reasonably found
    beyond a reasonable doubt that [Defendant] passed or exchanged over .5 grams of
    cocaine at Bad Habits.” The trial court noted that “clearly there was proof in the record
    that the jury believed determined there was a sale of cocaine.” However, the trial court
    was unclear whether Rule 29 of the Tennessee Rules of Criminal Procedure permitted the
    trial court to grant the motion with regard to the indicted offense and enter a judgment of
    conviction on the lesser offense of sale of less than .5 grams of cocaine within a drug free
    zone. The State, citing Overturf v. State, 
    571 S.W.2d 837
    (Tenn. 1978), argued that the
    trial court could not.4 The trial court found that the evidence was at least sufficient to
    sustain a conviction for the Class C felony offense of sale of less than .5 grams of cocaine
    in a drug free zone. While noting its reservations regarding the testimony that only a
    single amount of cocaine was submitted to the TBI for testing even though there was
    evidence of cocaine being exchanged at two locations, the trial court ultimately denied
    the Rule 29 motion for judgment of acquittal with regard to the Class B felony offense of
    sale of more than .5 grams of cocaine in a drug free zone with which Defendant was
    convicted. After a sentencing hearing, Defendant was sentenced as a Range II offender
    to fifteen years with a mandatory minimum service of twelve years at 100%.
    4
    Overturf held that it was a violation of the constitutional protection against double jeopardy for
    a trial court to direct a verdict of acquittal due to insufficient evidence and then grant a new trial on that
    same 
    offense. 571 S.W.2d at 839
    . However, our supreme court has held that “[a] judgment of acquittal is
    not an all or nothing proposition. A court may grant a judgment of acquittal as to the higher charge and
    proceed on a lesser-included offense.” Finch v. State, 
    226 S.W.3d 307
    , 318 (Tenn. 2007).
    -5-
    On December 6, 2017, the trial court held a hearing on Defendant’s “Motion for
    Judgment of Acquittal and/or Motion for New Trial.” The trial court noted its previous
    concerns “about the two stages of what [the prosecutor] convinced the [c]ourt was one
    continuous transaction completed within 1,000 feet of North End Park.” The trial court
    stated that it “first accepted [the verdict] as the 13th juror and approved the same subject
    to the hearing on the new motion for judgment of acquittal at the close of all of the
    proof.” The trial court again denied Defendant’s Rule 29 motion for judgment of
    acquittal and noted that the jury was able to “deliberate[] on the issue of the completion
    of the transaction and/or what portion of the transaction occurred within 1,000 feet” of
    the drug free zone. The trial court ruled that there “was sufficient proof produced at trial
    to justify the verdict of the jury in this case. So the [D]efendant’s motion for new trial
    would be denied.” Defendant filed a timely notice of appeal.
    Analysis
    On appeal, Defendant argues that the evidence is insufficient to sustain his
    conviction for sale of .5 grams or more of cocaine within 1000 of a drug free zone
    because the State failed to prove the amount of cocaine that was actually sold at Bad
    Habits, which was within 1000 feet of the park, rather than at Mr. Higdon’s house, from
    which the distance to the park was not measured. Defendant also argues that the trial
    court erred by failing to grant his motion for judgment of acquittal pursuant to Tennessee
    Rule of Criminal Procedure 29 and by “failing to overturn the verdict while acting as
    thirteenth juror” pursuant to Tennessee Rule of Criminal Procedure 33. Finally,
    Defendant argues that he was entitled to an enhanced unanimity instruction “to ensure
    that the jury understood its duty to agree on a particular set of facts.” We shall address
    each issue in turn.
    I. Sufficiency of the Evidence
    When a defendant challenges the sufficiency of the evidence, this Court is obliged
    to review that claim according to certain well-settled principles. The relevant question is
    whether any rational trier of fact could have found the accused guilty of every element of
    the offense beyond a reasonable doubt. See Tenn. R. App. P. 13(e); Jackson v. Virginia,
    
    443 U.S. 307
    , 319 (1979). The jury’s verdict replaces the presumption of innocence with
    one of guilt; therefore, the burden is shifted onto the defendant to show that the evidence
    introduced at trial was insufficient to support such a verdict. State v. Reid, 
    91 S.W.3d 247
    , 277 (Tenn. 2002). The prosecution is entitled to the “‘strongest legitimate view of
    the evidence and to all reasonable and legitimate inferences that may be drawn
    therefrom.’” State v. Goodwin, 
    143 S.W.3d 771
    , 775 (Tenn. 2004) (quoting State v.
    Smith, 
    24 S.W.3d 274
    , 279 (Tenn. 2000)). Questions concerning the “‘credibility of the
    witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the
    proof are matters entrusted to the jury as the trier of fact.’” State v. Wagner, 382 S.W.3d
    -6-
    289, 297 (Tenn. 2012) (quoting State v. Campbell, 
    245 S.W.3d 331
    , 335 (Tenn. 2008)).
    “‘A guilty verdict by the jury, approved by the trial court, accredits the testimony of the
    witnesses for the State and resolves all conflicts in favor of the prosecution’s theory.’”
    
    Reid, 91 S.W.3d at 277
    (quoting State v. Bland, 
    958 S.W.2d 651
    , 659 (Tenn. 1997)). It is
    not the role of this Court to reweigh or reevaluate the evidence, nor to substitute our own
    inferences for those drawn from the evidence by the trier of fact. 
    Id. The standard
    of
    review is the same whether the conviction is based upon direct evidence, circumstantial
    evidence, or a combination of the two. State v. Dorantes, 
    331 S.W.3d 370
    , 379 (Tenn.
    2011); State v. Hanson, 
    279 S.W.3d 265
    , 275 (Tenn. 2009).
    In this case, Defendant was convicted of sale of .5 grams or more of cocaine
    within 1000 feet of a drug free zone. See T.C.A. §§ 39-17-417(a)(3), (c)(1); 39-17-
    432(b). Tennessee Code Annotated section 39-17-417(a)(3) provides that “[i]t is an
    offense for a defendant to knowingly . . . sell a controlled substance[.]” Cocaine is a
    Schedule II controlled substance. T.C.A. § 39-17-408. A person acts knowingly “with
    respect to the conduct or to circumstances surrounding the conduct when the person is
    aware of the nature of the conduct or that the circumstances exist.” T.C.A. § 39-11-
    302(b). “[A] sale consists of two components: a bargained-for offer and acceptance, and
    an actual or constructive transfer or delivery of the subject matter property.” State v.
    Holston, 
    94 S.W.3d 507
    , 510 (Tenn. Crim. App. 2002). “One who accepts payment in
    exchange for property is involved in a sale.” 
    Id. at 510-11.
    When the amount of cocaine
    sold is .5 grams or more, the offense is a Class B felony. T.C.A. § 39-17-417(c)(1).
    Under the Drug Free School Zone Act, when the offense occurs within 1000 feet “of the
    real property that comprises a . . . preschool, child care agency, or public library,
    recreational center or park,” the defendant “shall be punished one (1) classification
    higher” but “shall not be subject to additional incarceration.” T.C.A. § 39-17-432(b)(1),
    (3). The defendant “shall be required to serve at least the minimum sentence for the
    defendant’s appropriate range.” T.C.A. § 39-17-432(c).
    This Court has made clear that the Drug Free School Zone Act does not create a
    separate criminal offense but “merely imposes a harsher penalty for violations of
    Tenn[essee] Code Ann[otated section] 39-17-417 occurring within a [drug free] zone.”
    State v. Smith, 
    48 S.W.3d 159
    , 168 (Tenn. Crim. App. 2000); see T.C.A. § 39-17-432(b).
    Therefore, “proof that the drug crime was committed in a [drug free] zone is not an
    essential element of the 39-17-417 offense.” State v. Arturo Jaimes-Garcia, No. M2009-
    00891-CCA-R3-CD, 
    2010 WL 5343286
    , at *18 (Tenn. Crim. App. Dec. 22, 2010), perm.
    app. denied (Tenn. May 31, 2011). Thus, for a person charged with selling a controlled
    substance, the enhanced penalty is triggered if the jury determines beyond a reasonable
    doubt that any part of the sale occurred in a drug free zone. See State v. Timothy Allen
    Johnson, No. M2015-01160-CCA-R3-CD, 
    2016 WL 3435589
    , at *4 (Tenn. Crim. App.
    June 15, 2016) (holding evidence sufficient to support conviction for sale within a school
    zone when location where money was exchanged was within the school zone even
    -7-
    though drugs were exchanged after defendant and undercover officer left that location),
    perm. app. denied (Tenn. Oct. 19, 2016); cf. Arturo Jaimes-Garcia, 
    2010 WL 5343286
    ,
    at *13 (rejecting defendant’s contention that conviction for conspiracy to sell 300 grams
    or more of cocaine in a drug free school zone required proof of an agreement to sell
    within a school zone and holding that enhanced penalty was triggered when defendant’s
    overt act in furtherance of the conspiracy took him within 1000 feet of a school).
    The evidence presented in this case, in the light most favorable to the State, shows
    that Defendant entered into an agreement with Mr. Higdon to sell two grams of crack
    cocaine for $200. Defendant initially met with Mr. Higdon at Mr. Higdon’s house but
    did not have the full amount of the drugs promised. Mr. Higdon gave Defendant “half
    the money,” and Defendant gave Mr. Higdon “half the substance.” Defendant suggested
    that they meet at Bad Habits to complete the agreed-upon sale. The exact location where
    Defendant and Mr. Higdon exchanged the remainder of the drugs and money in the
    parking lot of Bad Habits was 164 feet away from North End Park. Even though Mr.
    Higdon did not specify exactly how much cocaine he received at his house and how
    much he received at Bad Habits, a single plastic baggie containing 1.25 grams of cocaine
    was submitted to the TBI. We agree with the State that “the [D]efendant’s two meetings
    with the informant, occurring about 20 minutes apart and both of which were required to
    complete the agreed-upon contract, constituted a single transaction.”5 Under these facts,
    a jury could reasonably determine that Defendant sold .5 grams or more of cocaine and
    that at least a portion of the sale occurred within a drug free zone. See Timothy Allen
    Johnson, No. M2015-01160-CCA-R3-CD, 
    2016 WL 3435589
    , at *4.
    However, even if we were to agree with Defendant’s assessment that the evidence
    showed two separate sales because there were two separate exchanges of drugs and
    money, the evidence would still be sufficient to sustain his conviction for sale of .5 grams
    or more of cocaine within a drug free zone for the exchange that occurred at Bad Habits.
    Mr. Higdon testified that he “kept half the substance” after the initial exchange at his
    house. By its verdict, the jury accredited this testimony and resolved any conflicts with
    it. See 
    Reid, 91 S.W.3d at 277
    . Because the total amount of cocaine submitted to the
    TBI was 1.25 grams, a rational juror could infer that the amount that was exchanged at
    Bad Habits was the other “half” of the substance, or .625 grams. Because a rational juror
    could determine that the amount of cocaine exchanged within the drug free zone was
    more than .5 grams, the evidence is sufficient to sustain Defendant’s conviction.
    II. Motion for Judgment of Acquittal
    5
    On appeal, the State primarily relies upon double jeopardy principles regarding multiplicity of
    convictions to establish that this was a single sale of cocaine. See State v. Phillips, 
    924 S.W.2d 622
    , 665
    (Tenn. 1996); State v. Epps, 
    989 S.W.2d 742
    , 745 (Tenn. Crim. App. 1998). However, we need not
    determine whether the State would have been prevented from charging Defendant with two separate sales
    under the facts of this case.
    -8-
    Tennessee Rule of Criminal Procedure 29 allows the trial court to “order the entry
    of judgment of acquittal of one or more offenses charged in the indictment . . . after the
    evidence on either side is closed if the evidence is insufficient to sustain a conviction of
    such offense or offenses.” Tenn. R. Crim. P. 29(b). As it did in this case, the trial court
    may reserve ruling on a motion for judgment of acquittal made after the close of all
    evidence, submit the case to the jury, and decide the motion after the jury has returned a
    guilty verdict. Tenn. R. Crim. P. 29(d)(2). “At the point the motion is made, the trial
    court must favor the opponent of the motion with the strongest legitimate view of the
    evidence, including all reasonable inferences, and discard any countervailing evidence.”
    State v. James, 
    315 S.W.3d 440
    , 455 (Tenn. 2010). In other words, the standard by
    which the trial court determines a motion for judgment of acquittal is identical to the
    standard which applies on appeal in determining the sufficiency of the evidence after a
    conviction. 
    Id. Because we
    have determined that the evidence is sufficient to sustain
    Defendant’s conviction for sale of .5 grams or more of cocaine within 1000 feet of a drug
    free zone, the trial court did not err in denying Defendant’s Rule 29 motion for judgment
    of acquittal.
    III. Thirteenth Juror
    Tennessee Rule of Criminal Procedure 33(d) provides that “[t]he trial court may
    grant a new trial following a verdict of guilty if it disagrees with the jury about the weight
    of the evidence.” This rule “‘imposes upon a trial court judge the mandatory duty to
    serve as the thirteenth juror in every criminal case,’” and makes “‘approval by the trial
    judge of the jury’s verdict as the thirteenth juror . . . a necessary prerequisite to
    imposition of a valid judgment.’” State v. Biggs, 
    218 S.W.3d 643
    , 653 (Tenn. Crim. App.
    2006) (quoting State v. Carter, 
    896 S.W.2d 119
    , 122 (Tenn. 1995)). “‘[T]he trial court
    must weigh the evidence and grant a new trial if the evidence preponderates against the
    weight of the verdict.’” 
    Id. (quoting State
    v. Blanton, 
    926 S.W.2d 953
    , 958 (Tenn. Crim.
    App. 1996)).
    The difference between Rule 29 and Rule 33 is that the former is concerned with
    the sufficiency of the evidence and the latter with the weight of the evidence. Our
    supreme court has explained the difference as follows:
    “In evaluating the legal sufficiency of the evidence, the judge determines
    whether all the necessary elements of the offense have been made out,
    whether the defendant’s identity has been established and whether the proof
    demonstrates the existence of a valid defense. In doing so, the court is
    required to view the evidence in the light most favorable to the verdict,
    giving the prosecution the benefit of all inferences reasonably to be drawn
    from the evidence. . . .
    -9-
    An inquiry into the weight of the evidence is entirely different. The trial
    judge does not have to view the evidence in the light most favorable to the
    prosecution; he may weigh the evidence himself as if he were a juror and
    determine for himself the credibility of the witnesses and the preponderance
    of the evidence.”
    State v. Ellis, 
    453 S.W.3d 889
    , 899 (Tenn. 2015) (quoting State v. Johnson, 
    692 S.W.2d 412
    , 415 (Tenn. 1985) (Drowota, J., dissenting)). Because “[a]ppellate courts are ill-
    suited . . . to assess whether the verdict is supported by the weight and credibility of the
    evidence . . . , the accuracy of a trial court’s thirteenth juror determination is not a subject
    of appellate review.” State v. Moats, 
    906 S.W.2d 431
    , 435 (Tenn. 1995). Although the
    duty is mandatory, the trial court is not required to make an explicit statement on the
    record that has fulfilled its duty to act as thirteenth juror, and appellate courts may
    presume that the trial court has approved the verdict when it overrules a motion for new
    trial without comment. 
    Biggs, 218 S.W.3d at 653
    (citing 
    Carter, 896 S.W.2d at 122
    ;
    State v. Brown, 
    53 S.W.3d 264
    , 274 (Tenn. Crim. App. 2000)). “[O]nly when the record
    contains statements indicating that the trial court failed to act as the thirteenth juror or
    misconstrued its authority under that rule” may an appellate court grant a new trial.
    
    Moats, 906 S.W.2d at 435
    .
    While the trial court initially expressed some reservations regarding the State’s
    theory that this was a single transaction that occurred at two separate locations, the trial
    court ultimately approved the verdict both at trial immediately after the jury returned its
    verdict and again at the hearing on the motion for new trial. Therefore, the trial court
    fulfilled its duty as thirteenth juror, and Defendant is not entitled to relief.
    IV. Enhanced Unanimity Instruction
    Again relying on his contention that the evidence established that there were two
    separate sales of cocaine, Defendant argues that the trial court erred by failing to give the
    jury an enhanced unanimity instruction. Defendant acknowledged at the motion for new
    trial hearing that he did not specifically request such an instruction at trial. However, this
    Court has held that “a defendant has a fundamental constitutional right to a unanimous
    verdict, and is therefore entitled to an election and an unanimity instruction even when he
    has not requested them.” State v. Charles A. Walker, No. M2005-00165-CCA-R3-CD,
    
    2006 WL 3313651
    , at *14 (Tenn. Crim. App. Nov. 15, 2006) (citing Burlison v. State,
    
    501 S.W.2d 801
    , 804 (Tenn. 1973)), perm. app. denied (Tenn. Mar. 12, 2007).
    Therefore, the issue is not waived.
    We begin our analysis by noting that even though Defendant does not specifically
    argue that the State should have made an election of offenses, the case law involving
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    election of offenses and unanimity instructions often intertwine because both involve the
    constitutional right to a unanimous jury verdict. See Tidwell v. State, 
    922 S.W.2d 497
    ,
    501 (Tenn. 1996) (“A defendant’s right to a unanimous verdict before imposition of
    conviction requires the trial court to take precautions to ensure that the jury deliberates
    over the particular charged offense, instead of assembling a ‘patchwork verdict’ based on
    the different offenses in evidence.”). Both an election of offenses and an enhanced or
    modified unanimity instruction “safeguard[] the defendant’s state constitutional right to a
    unanimous jury verdict by ensuring that jurors deliberate and render a verdict based on
    the same evidence.” State v. Johnson, 
    53 S.W.3d 628
    , 631 (Tenn. 2001). These
    requirements “ha[ve] been applied almost exclusively in the sex crimes context, and
    specifically, when the defendant is alleged to have committed a series of sexual acts over
    a lengthy period of time against young children who are unable to identify the exact date
    on which any one act was perpetrated.” 
    Id. (citing cases).
    The general rule is that if the
    State offers proof of multiple offenses in support of a single charged offense, it must elect
    the facts upon which it is relying to establish the charged offense. 
    Id. “When the
    evidence does not establish that multiple offenses have been committed, however, the
    need to make an election never arises.” State v. Adams, 
    24 S.W.3d 289
    , 294 (Tenn.
    2000). In other words, the concern over whether the jury has rendered a unanimous
    verdict only arises when the State has introduced evidence of “multiple discrete acts that
    individually constitute separate substantive offenses.” 
    Id. Defendant relies
    heavily upon this Court’s opinion in State v. Brown, 
    823 S.W.2d 576
    (Tenn. Crim. App. 1991), to support his contention that the trial court should have
    given an enhanced unanimity instruction. In Brown, the defendant was charged with
    possession with intent to sell cocaine for cocaine found at two separate, but adjoining
    properties. 
    Id. at 578.
    The Brown court held that the State was not required to make an
    election of offenses because “the evidence of simultaneous possession indicate[d] that the
    defendant was confronted with only one offense.” 
    Id. at 581.
    However, the court held
    that “the fact that the election remedy does not apply does not mean that the defendant is
    not entitled to the protections upon which [the election requirement] is based,” namely
    the protection of “the defendant’s right to the unanimous verdict by the jury relative to
    what constitutes the offense.” 
    Id. The court
    held that
    in cases involving evidence which shows a real potential that a conviction
    may occur as a result of different jurors concluding that the defendant
    committed different acts, each of which separately showing the commission
    of an offense, the trial court must augment the general unanimity
    instruction to [e]nsure that the jury understands its duty to agree
    unanimously to a particular set of facts.
    
    Id. at 583.
    - 11 -
    However, less than a decade later, our supreme court stated in Adams, “Our cases
    have not required that a jury unanimously agree as to facts supporting a particular
    element of a crime so long as the jury agrees that the appellant is guilty of the crime
    
    charged.” 24 S.W.3d at 297
    . Then, in Johnson, our supreme court held that there was no
    need for an enhanced unanimity instruction when the evidence indicated only one
    offense, even though the offense was comprised of multiple discrete acts upon which the
    jury could base its 
    finding. 53 S.W.3d at 635
    . Moreover, the Johnson court held that an
    enhanced unanimity instruction “is not required even in cases where the proof does
    indicate more than one offense” because “[t]he election requirement itself alleviates any
    unanimity concerns.” 
    Id. Thus, as
    this Court has previously noted, “we are uncertain as
    to the continued validity of Brown” in light of our supreme court’s holdings in Johnson
    and Adams. State v. Black, 
    75 S.W.3d 422
    , 426 (Tenn. Crim. App. 2001). In his
    appellate brief, Defendant concedes that Brown has received negative treatment but
    insists that the evidence showed two distinct offenses requiring an enhanced unanimity
    instruction.
    Throughout this case, the State has argued that the two transactions constituted the
    single offense of sale of .5 grams or more of cocaine within 1000 feet of a drug free zone.
    The jury was instructed to render a unanimous verdict. So long as the jurors agreed that
    Defendant sold more than .5 grams of cocaine to Mr. Higdon and that at least part of the
    sale occurred within the drug free zone, Defendant was afforded his right to a unanimous
    verdict, even if some jurors believed that only “half” of the cocaine was actually
    exchanged in the parking lot of Bad Habits. Cf. 
    Johnson, 53 S.W.3d at 633
    (holding that
    defendant was afforded right to unanimous verdict on single count of sexual battery even
    if some jurors based finding on one of two touchings). Even if the trial court should have
    given some kind of enhanced or modified unanimity instruction, the lack of such an
    instruction did not contribute to the verdict and is, therefore, harmless beyond a
    reasonable doubt. See State v. Qualls, 
    482 S.W.3d 1
    , 18 (Tenn. 2016).
    Conclusion
    Based on the foregoing, we affirm the judgment of the trial court.
    ____________________________________
    TIMOTHY L. EASTER, JUDGE
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