State of Tennessee v. Devondre DeQuan Samuel ( 2022 )

08/26/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
May 24, 2022 Session
STATE OF TENNESSEE v. DEVONDRE DEQUAN SAMUEL
Appeal from the Criminal Court for Knox County
No. 112549 G. Scott Green, Judge
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No. E2020-01033-CCA-R3-CD
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Defendant, Devondre DeQuan Samel, was convicted by a jury of conspiracy to possess
150 grams or more of heroin with intent to sell or deliver within 1,000 feet of a school, a
park, and a recreational center (Counts 1-3), conspiracy to sell 150 grams or more of heroin
within 1,000 feet of a school, a park, and a recreational center (Counts 5-7), two counts of
possession of drug paraphernalia (Counts 14 and 17), possession with intent to sell or
deliver less than fifteen grams of heroin within 1,000 feet of a park (Count 15), and
manufacture of less than fifteen grams of heroin within 1,000 feet of a park (Count 16).
The trial court imposed an effective fifteen-year sentence, as a Range I standard offender,
to be served in the Department of Correction. On appeal, Defendant argues: that the trial
court erred by denying his motion for judgment of acquittal; that the trial court erred by
denying his pre-trial motion for a continuance; that the trial court improperly limited his
cross-examination of Mr. Berry; that his sentence under the Drug-Free School Zone Act
constitutes cruel and unusual punishment; and that the trial court erred by denying his
motion for a new trial based upon prosecutorial vindictiveness. Following our review of
the entire record and the briefs of the parties, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J. and TIMOTHY L. EASTER., J., joined.
John M. Boucher, Jr., Knoxville, Tennessee, for the appellant, Devondre Samuel.
Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Senior
Assistant Attorney General; Charme Allen, District Attorney General; and Molly Martin
and Kenneth Irvine, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
This case arises from multiple transactions involving the sale of heroin. Defendant
was indicted for conspiracy to possess 150 or more grams of heroin within 1,000 feet of a
school (Counts 1 and 5), a park (Counts 2 and 6), a recreational center (Counts 3 and 7),
and a child care agency (Counts 4 and 8). He was also indicted for possession of marijuana
(Count 13), possession of drug paraphernalia (Counts 14 and 17), possession with intent to
sell or deliver less than fifteen grams of heroin within 1,000 feet of a park (Count 15), and
manufacture of less than fifteen grams of heroin within 1,000 feet of a park (Count 16).
Defendant was tried along with Co-defendant Denzel Washington. The State dismissed
Counts 4 and 8, and the jury convicted Defendant as charged in Counts 1-3, 5-7, and 14-
17. Defendant was acquitted of Count 13.
At trial, Investigator Phillip Jinks of the Knoxville Police Department (“KPD”),
Organized Crime Unit, Narcotics Division, testified as an expert in narcotics investigations.
He explained that heroin is usually purchased in “points” and one point is “.1 gram or a
tenth of a gram.” Investigator Jinks testified that heroin distributors often prepackage the
heroin for sale in plastic bags called “bindles,” the corners of a sandwich bag called a
“corner baggie[s],” or into folded pieces of paper such a lottery ticket play slip. He said
heroin is frequently mixed with fentanyl which is another controlled substance and cheaper
than heroin. Michigan is the primary source of heroin in East Tennessee.
Investigator Jinks testified that the “goal of the typical heroin distributor is to - - is
to try to remain anonymous to its customers.” They remain anonymous by not owning
property in the area or by driving cars that have been rented in the addict’s name. The
addicts also rent hotel rooms for the distributors to use to distribute the drugs. Investigator
Jinks explained that heroin distributors often use nicknames and multiple “burner” cell
phones not associated with their names. He said, “And they use that phone to communicate
with drug customers. And they change that phone number very frequently.”
Investigator Jinks testified that in 2015, he began receiving pieces of information
from various sources about a group of individuals (“the drug conspiracy”) who were
distributing heroin and using nicknames that he had not heard before. The first group of
nicknames consisted of “Jefe, Drizzy, Sport, Stroke, Shorty and Ice.” Investigator Jinks
was eventually able to positively identify all of the individuals.1 “Drizzy” was identified
as Defendant, and “Jefe” was identified as Co-defendant Denzel Washington, and they
were both at the top level of the drug conspiracy. The next level of individuals in the drug
conspiracy included Curtis Britton (Stroke), Tyrell Mason (Thoroughbred), Jeffrey
Brandon Berry, Jordan Lee (Sport), Chris Adams (Shorty), and Bobby Wilson. The lower
level distributors and users in the bottom of the drug conspiracy were Matia Goins, who
1
At trial, Investigator Jinks presented a three-tiered chart that included the individuals’
actual names, nicknames, and level within the drug conspiracy.
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was Defendant’s one-time girlfriend, Jennifer Naylor, James Brady Baggett, and James
Christopher Cagle. Investigator Jinks testified that he interviewed most of the individuals
involved in the drug conspiracy, including Mr. Cagle, Mr. Berry, Ms. Goins, Ms. Naylor,
and Mr. Baggett, and they all cooperated with the investigation.
On April 13, 2017, Investigator Jinks conducted an undercover drug buy at the
Broadway Shopping Center located at 2001 North Broadway Street, with a confidential
informant (“CI”), who had arranged the buy. Investigator Jinks testified that before the
buy, the CI made two calls to one of the co-conspirators, who said that he did not have any
drugs and would have to turn the matter over to Defendant (Drizzy). Investigator Jinks
noted that the Broadway Shopping Center is across the street and within 1,000 feet from
Fulton High School. He observed the CI purchase one gram of cocaine for $200 through
a “hand-to-hand” transaction in the parking lot with the seller who was driving a silver car
that had been rented by Ms. Naylor. Investigator Jinks was unable to identify the driver of
the vehicle.
A second controlled drug buy with the CI occurred on June 14, 2017, in the
breezeway of the Crossroads West Apartments. The CI was accompanied by an
undercover officer, and the buy was monitored by Investigator Jinks. Prior to the
transaction, the CI called Mr. Lee at a Michigan number. The sellers arrived at the
apartment complex in a vehicle with a New York license plate driven by Mr. Adams.
Investigator Jinks testified that the CI purchased .91 grams of heroin packaged in a “lottery
ticket play slip.”
Investigator Jinks testified that he drove to Mr. Cagle’s residence at 4513 Sullivan
Road on August 23, 2017, to arrest him on an outstanding warrant. He also had reason to
believe that Mr. Cagle was involved in the drug conspiracy. Mr. Cagle agreed to cooperate
with Investigator Jinks’ investigation by “making recorded phone calls and monitored text
messages with a person he knew as Drizzy [(Defendant)], to coordinate the delivery of
heroin to his residence.” Investigator Jinks testified that Mr. Cagle’s residence was located
within 1,000 feet of Cumberland Estates Park and Cumberland Estates Recreation Center,
a drug-free zone.
At trial, recorded phone calls made on August 23 between Mr. Cagle and Defendant
were played for the jury. Concerning one call, Investigator Jinks testified:
So, initially, the very beginning of that - - it was actually the end of
the previous snippet that we heard, when Mr. Cagle says, “Can you
come through?” He says, “Yeah” - - the [D]efendant says, “Yeah. I
hear you. What are you trying to do?” Again, very common
language for, what do you need? What are you trying to buy?
Something that we’ve - - I’ve heard hundreds and thousands of times
in reference to drug buys, what are you trying to do? And the
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response is “40.” And then [Defendant] says, “All right. I’m on my
way.”
Then [Defendant] says, “Call some people and line some shit up.”
Based on the totality of the circumstances of this case and my
knowledge of the activity of these drug conspiracies, I believe that
to mean telling Mr. Cagle to get some people lined up to make some
buys. That’s why he’s wanting to get stuff popping, because his
birthday’s the next day. So he says, “Line some shit up.” And then
Mr. Cagle says, “All right. I got you.”
Investigator Jinks testified that during the call, Defendant also vouched for the quality of
the heroin by saying, “You can put your word on this shit.” Investigator Jinks further
testified:
That means in the drug world, as I said before, as I said yesterday,
drug distributors want to tout the quality of their product. And he’s
telling Mr. Cagle, you can - - you can vouch to the people that you
get lined up for the quality of this - - this dope. And then Mr. Cagle
says, “That shit A1, real shit.” A1 is something we hear a lot for
high quality. Like I said yesterday, Fire is also something you hear
a lot when somebody’s touting the quality of their substance. A1 is
something that’s frequently heard when referring to the high quality
of heroin.
Defendant then told Mr. Cagle that he would see him “in a few.” Investigator Jinks testified
that in a second call, Mr. Cagle asked Defendant how long it would be before he arrived.
Defendant replied that he would be there in twenty minutes because he was dealing with a
million more motherf[- - -]kers.” To Investigator Jinks, this meant that Defendant had a
lot of deliveries of heroin to make before he arrived at Mr. Cagle’s house. Mr. Cagle then
told Defendant that he had “enough for a half,” which was slang for a half gram of heroin.
Defendant replied: “All right. I’ll be over there. I promise you.”
Investigator Jinks and other officers conducted surveillance on Mr. Cagle’s
residence and observed a silver Dodge Challenger, which was the type of vehicle
Investigator Jinks had information that the drug conspirators were using, pull into Mr.
Cagle’s driveway with Mr. Berry driving and Defendant riding in the passenger seat.
Another individual was riding in the backseat. Investigator Jinks and the other officers
immediately approached the vehicle and detained the occupants and searched the vehicle.
They found two cell phones in the floorboard where Defendant had been sitting. One of
the phones, a white LG phone, was associated with the phone number that Mr. Cagle called
to reach Defendant. Investigator Jinks testified that there were five to six additional cell
phones in the car, and one showed a missed call from “Punch,” another CI in this case.
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There were also several sets of digital scales in the car, including one that had been sitting
at Defendant’s feet. There was a hypodermic syringe and a spoon found on the driver’s
side of the vehicle and a plastic bottle containing what appeared to be a small amount of
marijuana near where Defendant had been seated. Investigator Jinks testified that there
was a Walmart gift card and an Electronic Benefits Transaction card in the Challenger,
which is commonly “used as currency for drugs, typically by addicts who either get them
as gifts or return stolen property and obtain gift cards and then use them as currency to
purchase drugs.” Investigator Jinks searched Defendant “incident to arrest” and found
approximately $3,000 in his pants pocket. He did not find any heroin on Defendant’s
person or in the vehicle.
Mr. Cagle provided his cell phone to Investigator Jinks who used Cellebrite
Software to extract information from the phone to generate reports introduced at trial. One
report contained text messages between Mr. Cagle’s phone and one of the iPhones found
in the Challenger. The messages contained numerous references to the purchase and sale
of heroin using common slang terms such as “pt” for a point, which is 0.1 gram of heroin,
“grizzi” for a gram of heroin, and “100 to G” referring to $100 for a gram of heroin.
Investigator Jinks noted that the various cell phones were passed around among the
participants in the drug conspiracy.
Investigator Jinks testified that a report generated from Mr. Cagle’s contact list
contained cell phone numbers for Defendant under various forms of Defendant’s nickname
such as “Driz,” “Drizz,” and “Drizzzee.” He said that the phone number associated with
“Driz” was the number that Mr. Cagle called to arrange the transaction on August 23rd. An
additional report containing approximately 350 text messages from two phone numbers
associated with Defendant (Drizz) had numerous references to drug sales.
Investigator Jinks testified that Mr. Berry also cooperated with the drug conspiracy
investigation and turned his cell phone over to Investigator Jinks who extracted information
from the phone to generate reports concerning this case. He said that the phone contained
text messages concerning drug sales which were exchanged with the phone number
associated with the LG phone found in the Challenger and showed a contact name of “Cell
Drizzy.” Investigator Jinks testified that a text sent to Mr. Berry from “Cell Drizzy” on
August 22, 2017, read: “I got subs and some shit in that’s A1 fire.” Investigator Jinks
explained: “Subs is probably a reference to Suboxone strips, which is a controlled
substance that’s usually used for the treatment - - for treatment of addiction. But it is - - it
is widely abused as well.” He said that “A1 fire” refers to high quality heroin. There were
also text messages on Mr. Berry’s phone from Mr. Lee who asked Mr. Berry for some
“fire” or heroin.
Investigator Jinks identified a Facebook page associated with Defendant. There was
a photograph on the page showing Defendant backed into the driveway at Mr. Cagle’s
house on Sullivan Road titled “#trapstar.” Investigator Jinks testified: “Trap is a - - is a
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location where drugs are sold. And, also, trap, it can also be used as a verb. That’s selling
drugs.”
Investigator Jinks testified that he extracted information from the LG phone found
in the Challenger and generated reports. There were several texts on the phone in reference
to Mr. Berry about buying a car and a photograph of the receipt for a wire transfer made
by Ms. Goins to Demetrius Bailey in Michigan. Investigator Jinks testified that one text
message between Defendant and Mr. Baggett contained the phone number for one of the
other phones found in the Challenger. Mr. Baggett was also sending wire transfers.
Investigator Jinks testified that the LG phone contained numerous other text messages
between Defendant, Mr. Baggett, Mr. Cagle, and other members of the drug conspiracy
concerning the sale of heroin. There were additional reports from Defendant’s phone
containing text messages with numerous other individuals who appeared to be buying
heroin from Defendant. There was also a video of Defendant and Mr. Berry on the phone.
Investigator Jinks admitted that he did not find any references to Co-defendant
Washington’s name or any of his aliases in Defendant’s phone.
Investigator Jinks testified that he interviewed Mr. Berry on August 23, 2017.
Based on the information that he received from Mr. Berry and other sources, Investigator
Jinks drove to an apartment complex located at 3213 River Maple Way the following day.
There, he located a blue Dodge Charger in the parking lot with a temporary tag from a car
lot on Clinton Highway with Mr. Berry listed as the buyer. The vehicle was parked within
1,000 feet of the recreation area or playground at Holston Park. Investigator Jinks obtained
and executed a search warrant on the vehicle. He recovered a set of Fusion digital scales
in a pouch; a sock containing 29.95 grams of heroin; a bag containing a cutting agent; a
powder or pollen press containing 21.73 grams of heroin; a CVS receipt for the purchase
of Sleepinal, which is an over-the-counter sleep medication often used as a cutting agent
for heroin; and box of Unisom sleep medication. Investigator Jinks testified that the “street
value” of the heroin was approximately $18,000.
Investigator Jinks conducted another drug buy on September 11, 2017, at the Deane
Hill Apartments on Gleason Drive using the same CI as he used on April 13, 2017, and the
transaction was monitored and recorded. The CI purchased .82 grams of a heroin and
fentanyl mix for $200 from Mr. Adams. Investigator Jinks conducted a second drug buy
on September 21, 2017, at an abandoned gas station on Kingston Pike with Mr. Adams
using a different CI. Investigator Jinks observed the “hand-to-hand” exchange between the
CI and Mr. Adams of 1.27 grams of a heroin and fentanyl mix for $270. The car that Mr.
Adams was riding in, along with Mr. Wilson, had a Massachusetts license plate and was
the same vehicle used during the previous buy on September 11. The phone number that
the CI called prior to the drug buy was stored as “Jefe 9417” in the CI’s phone. There were
several text messages exchanged between the CI and the number associated with Jefe that
appeared to reference the drug buy.
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On cross-examination, Investigator Jinks testified that both the Dodge Challenger
and Dodge Charger used during the drug buys were purchased by Mr. Berry at Defendant’s
direction. He said that Defendant stood behind Mr. Berry during the purchases and
provided the money. Tonya Stafford, an employee of Easy Auto Sales on Clinton
Highway, testified that Mr. Berry purchased the Charger in June 2017 and the Challenger
on August 21, 2017. Defendant was with Mr. Berry during both purchases.
Mr. Baggett identified Defendant as “Drizzy” and Co-defendant Washington as
“Jefe” and said that he had known both men since 2015. Mr. Baggett testified that he was
a drug addict, and his choice of drug was heroin. He identified his phone number and said
that he would contact Defendant or Co-defendant Washington for heroin. He had several
contact numbers for them and usually purchased one-half to one gram two to three times
per week for which he paid $80 and $140 respectively. Mr. Baggett testified that he
purchased drugs from Defendant or Co-defendant Washington from 2015 until his arrest
in 2017, and that Defendant, Co-defendant Washington, or one of their associates delivered
the drugs to him either to his house or he met them in Knoxville.
Mr. Baggett testified that Defendant and Co-defendant Washington called him by
the nickname “Brady.” He identified himself as the “C. Brady” who exchanged text
messages with Defendant. One message from Defendant read: “Hey, I’m back in town.
Hit me up. It’s fire.” This meant that Defendant had good heroin. Another message read:
“Stroke can bring it right now. I’m about to jump in the shower. What you wanting?” Mr.
Baggett testified that he had seen Stroke (Chris Britton) with Defendant and Co-defendant
Washington, and Stroke was someone who dealt drugs with them.
Mr. Berry testified that in 2015 he had been a drug addict for approximately ten
years, and he used opiates, heroin, and pain pills. After being fired from his job, he “would
drive drug dealers around to get drugs from them.” Mr. Berry admitted that he also
committed thefts to pay for drugs. He said he first met Defendant and Co-defendant
Washington approximately seven years ago when he was buying pain pills for someone
named “Chris,” and Defendant and Co-defendant Washington gave him some heroin to try.
Mr. Berry testified that he purchased heroin from 2015 until 2017. He purchased
“anywhere between a point, $20 worth, up unto - - up to a gram. It’s almost 200.” Mr.
Berry testified that he obtained the money to purchase the heroin by driving Defendant and
Co-defendant Washington around in a blue Dodge Charger.
Mr. Berry testified that he stopped purchasing heroin from Co-defendant
Washington sometime in 2015 and began solely purchasing the drug from Defendant. He
said that Defendant conducted drug sales at Mr. Berry’s house on Hickey Road in
Knoxville. He identified Mr. Britton, Mr. Baggett, and Mr. Cagle as also being involved
in the distribution of drugs, and he had purchased heroin from Mr. Britton. Mr. Berry
testified that he purchased a blue Dodge Charger and a silver Dodge Challenger using
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money that Defendant had given him. The temporary tag for the blue Charger was in Mr.
Berry’s name.
Mr. Berry identified text messages exchanged between him and Defendant. One
text message from Defendant read: “I got subs and some shit in that’s A1 fire.” Mr. Berry
explained that “subs” referred to Suboxone and “A1 fire” referred to heroin. He also
identified a cell phone video during which Defendant said, “I’m going to put you to work
today.” This meant that Mr. Berry was going to drive Defendant around to conduct drug
deals. Defendant also said, “You want to get a lot of work done when you want to get high,
too.” Mr. Berry testified that he sometimes drove Defendant to Michigan to “reup on
drugs.” He said, “And the last time I went with him, he had me try the different ones
[(heroin)] to tell him which one was the best.” Mr. Berry testified that he purchased
Sleepinal tablets at CVS for Defendant on August 20, 2017, which Defendant and Co-
defendant Washington used to cut heroin. He identified himself and Tyrell Mason on the
video from CVS.
Mr. Berry testified that he was driving the silver Challenger on August 23, 2017,
and he and Defendant drove to Mr. Cagle’s house to deliver some heroin. He said that
when the police pulled up behind them, Defendant put the heroin in his pants. Mr. Berry
testified that he spoke with Investigator Jinks and told him where the blue Charger was
located. Mr. Berry said that he often saw Defendant with large amounts of cash.
Ms. Naylor testified that she was an addict and met Defendant through a mutual
friend. She bought heroin from Defendant from the end of 2016 until April or May of
2017. She would either pay cash or drive Defendant to various places to sell heroin in
exchange for the drug. Ms. Naylor thought that she paid twenty to thirty dollars “a point.”
She also purchased heroin from Mr. Britton. Ms. Naylor admitted that she sometimes
committed thefts to get items or money to buy heroin or methamphetamine, which she also
used. She said that she rented a car for Defendant and Mr. Britton from Enterprise in March
or April of 2017 for a period of one-month. Defendant paid for the car, and Ms. Naylor
turned the car over to the two men.
Mr. Cagle testified that he had known Defendant since 2015 but he did not know
Co-defendant Washington. Mr. Cagle said that he had been a drug addict since the age of
fifteen, and he had overdosed multiple times, including overdosing on heroin provided to
him by Defendant. He admitted that he had a lengthy criminal record. Mr. Cagle testified
that he purchased heroin from Defendant daily until Mr. Cagle was arrested in his
driveway. He said that he would text Defendant to request the heroin, and Defendant would
bring it to Mr. Cagle’s residence on Sullivan Road. Defendant usually arrived in various
vehicles, and Defendant had more than one phone.
Mr. Cagle identified other members of the drug conspiracy who he met through
Defendant. He gave Investigator Jinks permission to analyze his phone, and he identified
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the phone numbers and various nicknames associated with Defendant from his contact list.
Mr. Cagle testified that he sent text messages to Defendant, and he identified one text
message that referred to Suboxone. He said that Defendant usually referred to heroin as
“[f]ire.” Mr. Cagle testified that if he texted Defendant “hit me up,” Defendant understood
that he wanted heroin. He identified a recorded phone call that he made to Defendant.
During the call Defendant said, “Get it popping. I need some snaps.” This meant that
Defendant wanted him to get customers for him. Mr. Cagle said that he sometimes drove
Defendant around in various vehicles, including the Charger, and he drove Defendant to
Pontiac, Michigan to try out heroin for Defendant. Mr. Cagle testified that Defendant asked
if the heroin was “A1,” which meant “[t]op shelf.” The heroin that Mr. Cagle tried became
Defendant’s new product to sell.
Chris Halcomb, a database and landbase administrator for the Knoxville Utilities
Board, Geographic Information System (KGIS), testified that part of his duties included
using a computer program to create maps of different areas in Knox County. He further
testified as to how the maps are created. While he did not create the maps used in this case,
his partner at KGIS created three standard aerial maps from their database using a computer
program to show the proximity of 4513 Sullivan Road, 3213 River Maple Way, and 2001
North Broadway to parks, including greenways, a recreational center, and a school. The
maps included transparent overlays showing 1,000-foot buffer zones from the addresses to
parks and schools and separate overlays showing 1,000-foot buffer zones from greenways.
Mr. Halcomb testified that, as shown on the map, 4513 Sullivan was located within 1,000
feet of Cumberland Estes Park, which includes a recreational center. The map also showed
the 1,000-foot greenway buffer, and the recreational center was shown between the
greenway and the boundary of the park closest to 4513 Sullivan Road. The map showed
that 3513 River Maple Way was located within 1,000 feet of Holston River Park and
Holston River Greenway. The map showed that that 2001 North Broadway Street was
located within 1,000 feet of Fulton High School and within 1,000 feet of First Creek
Greenway. Mr. Halcomb testified that the accuracy of the aerial photography was within
one foot “horizonal distance.”
On cross-examination, Mr. Halcomb testified that the buffer zones of the map
radiated from a point or extended from a parcel boundary, and it appeared that the buffer
zone for Fulton High School radiated from a point at the top of the building. The parties
stipulated that the Cumberland Estates Park and its recreational center were a park and
recreational center; the Holston River Park was a park; and the Fulton High School was a
school used for educational purposes.
Based on the above evidence, the jury convicted Defendant of conspiracy to possess
150 or more grams of heroin within 1,000 feet of a school (Counts 1 and 5), a park (Counts
2 and 6), a recreational center (Counts 3 and 7), and a child care agency (Counts 4 and 8),
possession of drug paraphernalia (Counts 14 and 17), possession with intent to sell or
deliver less than fifteen grams of heroin within 1,000 feet of a park (Count 15), and
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manufacture of less than fifteen grams of heroin within 1,000 feet of a park (Count 16).
The jury acquitted Defendant of possession of marijuana (Count 13). Defendant timely
appealed his convictions.
ANALYSIS
I. Judgment of Acquittal
Defendant argues that the trial court erred by denying his motion for judgment of
acquittal. His sole challenge to the sufficiency of the evidence is that the State failed to
prove that “the controlled drug buys occurred within 1,000 feet of the real property that
comprises a school and park[,]” which subjected him to enhanced sentencing under the
Drug-Free School Zone Act in effect at the time of the offenses. The State contends that
the trial court properly denied Defendant’s motion for judgment of acquittal.
The standard of review for a trial court’s denial of a motion for a judgment of
acquittal is the same as the “standard that applies on appeal in determining the sufficiency
of the evidence[.]” State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013). 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); State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011).
Because the jury’s verdict replaces the presumption of innocence with one of guilt,
the burden on appeal is shifted onto 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).
Thus, “‘we afford the prosecution the strongest legitimate view of the evidence as well as
all reasonable and legitimate inferences which may be drawn therefrom.’” Davis, 354
S.W.3d at 729 (quoting State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)). Questions
involving the credibility of witnesses and the weight and value to be given the evidence,
as well as all factual disputes raised by the evidence, are resolved by the jury as the trier of
fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997); State v. Pruett, 788 S.W.2d 559,
561 (Tenn. 1990). “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 Bland, 958 S.W.2d at 659). 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).
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“It is an offense for a defendant to knowingly... [d]eliver a controlled substance; ...
[s]ell a controlled substance; or ... [p]ossess a controlled substance with intent to
manufacture, deliver or sell the controlled substance.” T.C.A. § 39-17-417(a)(2)-(4).
Heroin is a schedule I controlled substance. Id. § 39-17-406(c)(11). The jury may infer
from the amount of the drugs, along with the relevant facts surrounding the arrest, that the
drugs were possessed for the purpose of selling or otherwise dispensing them. Id. § 39-17-
419; see also State v. Holt, 691 S.W.2d 520, 522 (Tenn. 1984). The offense of conspiracy
is committed if two or more people, each having the culpable mental state required for the
offense which is the object of the conspiracy and each acting for the purpose of promoting
or facilitating commission of an offense, agree that one or more of them will engage in
conduct which constitutes such offense. T.C.A. § 39-12-103(a). It is also required that “an
overt act in pursuance of such conspiracy is alleged and proved to have been done by the
person or by another with whom the person conspired.” T.C.A. § 39-12-103(d).
The Drug-Free School Zone Act in effect at the time Defendant committed the
offenses provided that when the offense occurs within 1000 feet “of the real property that
comprises a public or private elementary school, middle school, secondary school, . . .
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).
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). The enhanced penalty is triggered for a person charged
with selling a controlled substance 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)
(evidence was sufficient to support a conviction for sale within a school zone when the
location where money was exchanged was within the school zone even though drugs were
exchanged after the defendant and the undercover officer left that location). A conviction
for conspiracy to commit a qualifying offense within a drug-free zone only requires that an
overt act by one of the conspirators took place within the zone. Arturo Jaimes-Garcia,
2010 WL 5343286, at *13 (the enhanced penalty was triggered when defendant’s overt act
in furtherance of the conspiracy took him within 1000 feet of a school and rejecting
defendant’s contention that a conviction for conspiracy to sell cocaine in a drug-free school
zone required proof of an agreement to sell within the school zone); see also State v. Alfred
Maron Williams, et al., No. E2018-00670-CCA-R3-CD, 2020 WL 2120088, at *18 (Tenn.
Crim. App. May 4, 2020).
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In this case, Defendant does not contest that the evidence was sufficient to establish
that he conspired to possess heroin with the intent to sell or deliver; conspired to sell heroin;
possessed heroin with the intent to sell or deliver; manufactured heroin; or possessed drug
paraphernalia, and we find that the evidence was sufficient to support the offenses. As
stated above, Defendant’s sole challenge to the sufficiency of the evidence is that the State
failed to prove that “the controlled drug buys occurred within 1,000 feet of the real property
that comprises a school and park[.]” Viewing the evidence in a light most favorable to the
State, the evidence demonstrated that the qualifying offenses occurred within a drug-free
zone. The proof showed that Counts 1 and 5 occurred within 1,000 feet of Fulton High
School; Counts 2, 6, 15, and 16 occurred within 1,000 feet of Halston River Park and
Halston River Greenway; and the offenses in Counts 3 and 7 occurred within 1,000 feet of
Cumberland Estates Park and Cumberland Estates Recreational Center. Both Investigator
Jinks and KGIS employee Chris Halcomb testified concerning the proximity of the buys to
the drug-free zones.
Defendant’s argument as to this issue centers around the testimony of Mr. Halcomb,
a database and landbase administrator for the KGIS, who testified that his partner created
three standard aerial maps, from the KGIS database using a computer program, to show
the proximity of the controlled buys in this case to parks, including greenways, a
recreational center, and a school. Mr. Halcomb testified that the maps were accurate to
within one horizonal foot. Defendant argues that Mr. Halcomb was not qualified to testify
concerning the maps because he was “not an engineer or technician that actually created
these maps utilized as evidence to convict [Defendant].” Defendant further asserts that no
expert was called to testify and that the KGIS maps were unreliable. However, Defendant
cites no legal authority as to why Mr. Halcomb’s position as the KGIS’s database and
landbase administrator disqualifies him from testifying about the maps created by his
agency. In fact, Mr. Halcomb testified that part of his duties at KGIS included using a
computer program to create maps of different areas in Knox County. He further testified
as to how the maps are created. The “jury was allowed to use common sense in evaluating
the information and witness’s testimony” in determining whether the controlled buys were
within 1,000 feet of a drug-free zone. See State v. Steven O. Hughes-Mabry, No. E2011-
02255-CCA-R3-CD, 2013 WL 4046466, at *11 (Tenn. Crim. App. May 16, 2013) (internal
citations omitted). We conclude that the evidence was sufficient to establish that the
qualifying offenses occurred within 1,000 feet of a school, park, and recreational center.
Defendant is not entitled to relief on this issue.
II. Denial of Motion for a Continuance
Defendant contends that the trial court erred by denying his motion for a
continuance due to multiple violations of Tennessee Rule of Criminal Procedure 16 by the
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State. The State asserts that Defendant has failed to meet his burden of showing that he
was prejudiced by the trial court’s denial of the motion.
Tennessee Rule of Criminal Procedure 16 (a)(1)(F) lists the evidence that is subject
to disclosure by the State, which includes documents and objects. The rule states:
Upon a defendant’s request, the state shall permit the defendant to
inspect and copy or photograph books, papers, documents,
photographs, tangible objects, buildings, or places, or copies or
portions thereof, if the item is within the state’s possession, custody,
or control and:
(i) the item is material to preparing the defense;
(ii) the government intends to use the item in its case-in-chief at trial;
or
(iii) the item was obtained from or belongs to the defendant.
Rule 16(d)(2) provides that if there has been noncompliance, the trial court may order the
offending party to permit the discovery or inspection, grant a continuance, prohibit the
introduction of the evidence not disclosed or enter such other order as the court deems just
under the circumstances. Tenn. R. Crim. P. 16(d)(2) (emphasis added). “[T]here is no
mandatory exclusion that follows a violation.” State v. Sherri Mathis, No. M2009-00123-
CCA-R3-CD, 2012 WL 4461767, at *37 (Tenn. Crim. App. Sept. 26, 2012). The trial court
“has wide discretion in fashioning a remedy for non-compliance with a discovery order,
and the sanction should fit the circumstances of the case.” State v. Downey, 259 SW.3d
723, 737 (Tenn. 2008). “[W]hether the defendant has been prejudiced by the failure to
disclose is always a significant factor” in determining the appropriate remedy.” State v.
Smith, 926 S.W.2d 267, 270 (Tenn. Crim. App. 1995).
The granting of a continuance rests within the sound discretion of the trial court.
State v. Odom, 137 S.W.3d 572, 589 (Tenn. 2004). We will reverse the denial of a
continuance only if the trial court abused its discretion and the defendant was prejudiced
by the denial. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995). In order to show
prejudice, the defendant must demonstrate that a different result might reasonably have
been reached if the trial court had granted the continuance or that the denial of the
continuance denied the defendant a fair trial. Id.In this case, Defendant filed a motion to continue which included a list of
“documents and pieces of recent discovery” that he claimed were untimely provided by the
State. At trial, defense counsel informed the trial court that he had requested “all the data
on all of [the] phones, and . . . got reports and only the Cellebrite data on one phone.” The
State then told the trial court that all of the data was provided to Defendant in discovery.
In his brief, Defendant asserts that “considering the late turnover of discovery, the [t]rial
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[c]ourt erred in requiring [Defendant] to proceed to trial with new counsel who, had no
opportunity to prepare his defense in violation of his constitutional rights.” Defendant
further asserts that if defense counsel had been given the opportunity to “review, analyze,
inspect, or otherwise be given sufficient notice of the evidence against [Defendant],” he
would have had the opportunity to obtain an expert “to analyze the data on the phones, had
time to interview all the newly added witnesses, prepare a proper cross-examination of the
State’s witnesses, and bring sufficient evidence to counter any State allegation.”
On appeal, as pointed out by the State, Defendant does not allege what specific
“items” should have been turned over to him earlier or how the outcome of his trial would
have been affected had a particular piece of evidence been given to him earlier or had the
trial been continued. Defendant merely asserts in his brief that he was prejudiced and that
he “had no opportunity to challenge the admission of the late turn [sic] over evidence.
Absent the entry of the late turnover of each specific item, there is a strong likelihood that
[Defendant] would have been acquitted.” As to Defendant’s claim that he did not receive
full data from the cell phones recovered in this case, this issue is waived because Defendant
did not include the raw data in the appellate record. See State v. Demetrious Tommy Lee,
No. M2020-00914-CCA-R3-CD, 2021 WL 3825219, at *8 (Tenn. Crim. App. Aug. 27,
2021) (defendant waived his Rule 16 claim by failing to include the substance of the late
discovery in the appellate record), no perm app. filed.
In this case Defendant has not met his burden of demonstrating that he was
prejudiced by the trial court’s denial of his motion for a continuance. He is not entitled to
relief on this issue.
III. Cross-examination of Mr. Berry
On appeal, Defendant argues that the trial court erred by not allowing him to cross-
examine Mr. Berry about his dismissed charges of aggravated robbery, kidnapping, thefts,
and aggravated assaults against Mr. Berry’s family members. In his brief, Defendant refers
to the evidence as Mr. Berry’s “404 and 608 background.” The State asserts that Defendant
has waived this issue and that the trial court properly ruled that Defendant could not cross-
examine Mr. Berry about the charges.
As pointed out by the State, Defendant has waived any claim concerning Tennessee
Rule of Evidence 404(b) because he failed to invoke the rule at trial. Defendant requested
to cross-examine Mr. Berry at trial about his dismissed charges under Tennessee Rule of
Evidence 608(b), and the trial court conducted a jury-out hearing under that rule. It was
not until his motion for new trial that Defendant asserted that the trial court erred by
denying cross-examination of Mr. Berry about his “404 and 608 background[].” It is well-
settled, however, that “a party is bound by the ground asserted when making an objection”
and “cannot assert a new or different theory to support the objection in the motion for a
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new trial or in the appellate court.” State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn.
Crim. App. 1994). “When, as here, a party abandons the ground asserted when the
objection was made and asserts completely different grounds in the motion for a new trial
and in this [c]ourt, the party waives the issue.” Id. at 635. Defendant has waived our
consideration of this claim.
Defendant has also waived his claim that he should have been allowed to cross-
examine Mr. Berry under Tennessee Rule of Evidence 608 because he has not developed
an argument on this claim with analysis or any legal authority. Tennessee Rule of
Appellate Procedure 27(a)(7) requires that briefs contain arguments with regard to each
issue presented that include “citations to the authorities ... relied on.” See also Tenn. Ct.
Crim. App. R. 10(b) (“Issues which are not supported by argument [or] citation to
authorities ... will be treated as waived” on appeal). “It is not the role of the courts, trial or
appellate, to research or construct a litigant’s case or arguments for him or her, and where
a party fails to develop an argument in support of his or her contention or merely constructs
a skeletal argument, the issue is waived.” Sneed v. Board of Prof’l Responsibility, 301
S.W.3d 603, 615 (Tenn. 2010); State v. Cross, 362 S.W.3d 512, 526 (Tenn. 2012).
As pointed out by the State, Defendant is not entitled to plain error review of the
trial court’s limitation of his cross-examination of Mr. Berry because he has not requested
such review. See State v. Kevin Waggoner, No. E2018-01065-CCA-R3-CD, 2019 WL
4635589, at *21 (Tenn. Crim. App. Sept. 24, 2019) (declining plain error review where
defendant did not assert that the alleged error amounted to plain error); State v. Ray
Armstrong, No. W2016-01996-CCA-R3-CD, 2017 WL 6375950, at *16 (Tenn. Crim. App.
Dec. 12, 2017) (declining plain error review where defendant did not request or make any
argument regarding plain error). Defendant is not entitled to relief on this issue.
IV. Drug-Free School Zone Act
Defendant contends that sentencing enhancement under the Drug-Free School Zone
Act in effect at the time of the offenses, which requires 100% mandatory minimum service,
“as applied to the unique circumstances of his case” violates the proscriptions against cruel
and unusual punishment contained in the Eighth Amendment to the United States
Constitution and Article I, Section 16 of the Tennessee Constitution because it renders his
sentences “grossly disproportionate” to his offenses. The State responds that Defendant
has waived this issue, and even if not waived, this court “has previously and consistently
rejected similar proportionality challenges to the Act.2
2
The Tennessee General Assembly subsequently amended the Drug-Free School Zone Act
to afford trial courts discretion in applying the sentence classification enhancement and reduced
the distance for the enhancement from 1,000 feet to 500 feet of a drug-free zone’s real property.
T.C.A. § 39-17-417(b)(1)(2020). Under the amended Act, a defendant sentenced for violation of
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The Tennessee Rules of Criminal Procedure mandate that certain issues be raised
before trial, including “[d]efenses and objections based on defects in the indictment,
presentment or information (other than that it fails to show jurisdiction in the court or to
charge an offense which objections shall be noticed by the court at any time during the
pendency of the proceedings).” Tenn. R. Crim. P. 12(b)(2). This Court has previously
applied the Rule 12 waiver rule to constitutional challenges to the Drug-Free School Zone
Act. See State v. Roberto Vasques, No. M2004-00166-CCA-R3-CD, 2005 WL 2477530,
at *21-22 (Tenn. Crim. App. Oct. 7, 2005). However, in State v. Smith, 48 S.W.3d 159,
162 n. 1 (Tenn.Crim.App.2000) this court noted the Rule 12 waiver for failure to file a pre-
trial motion but heard the issue on the merits because the State failed to raise waiver at the
motion for new trial hearing or on appeal. In this case, it is not known whether the State
raised the issue of waiver at the motion for new trial hearing because the record on appeal
does not contain the transcript of the motion for new trial hearing. It is Defendant’s burden
to prepare an adequate record for appellate review. Tenn. R. App. P. 24(b).
In any event, the State has raised the waiver issue on appeal, and we find that this
issue is waived because Defendant failed to file a pretrial motion challenging the
constitutionality of the Drug-Free School Zone Act. He cannot cure the failure to file a
pretrial motion by raising this issue in his motion for new trial. State v. Rhoden, 739
S.W.2d 6, 10 (Tenn. Crim. App. 1987); State v. Diallo Jamel Lauderdale, No. W2001-
01296-CCA-R3-CD, 2003 WL 22080777, at *12 (Tenn. Crim. App. Sept. 5, 2003)
(defendant waived his constitutionality claim by failing to attack the constitutionality of
the statute until his motion for new trial).
Waiver notwithstanding, we decline any plain error review on this issue because
Defendant has not requested such relief. Kevin Waggoner, 2019 WL 4635589, at *21; Ray
Armstrong, 2017 WL 6375950, at *16. We note that the issue raised by the Defendant on
appeal has previously been addressed by this Court. We have held that the sentencing
provisions of the Drug-Free School Zone Act in effect at the time of the offenses in this
case do not violate the constitutional protections against cruel and unusual punishment.
State v. Jenkins, 15 S.W.3d 914, 919 (Tenn.Crim.App.1999); Smith, 48 S.W.3d at 173;
State v. Jordan Thomas Peters, No. E2014-02322-CCA-R3-CD, 2015 WL 6768615, at *11
(Tenn. Crim. App. Nov. 5, 2015); State v. Steve Duclair, No. E2012-02580-CCA-R3-CD,
2014 WL 1663152, at *11 (Tenn. Crim. App. Apr. 23, 2014); and State v. Antonio Rico
Walls, No. M1998–00358–CCA–R3–CD, 2002 WL 1343234, at *3 (Tenn. Crim. App.
June 20, 2002).
V. Withdrawal of Joint Plea Offer by the State
Defendant argues that the trial court erred by denying his motion for new trial based
subsection (b) is no longer required to serve at least the minimum sentence. Id. § 39-17-432(c)(1)
(2020).
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on prosecutorial vindictiveness. He asserts that the prosecutor violated his due process
rights by offering him and Co-defendant Washington a fifteen-year plea at thirty percent
conditioned upon both men accepting the offer which was withdrawn after Co-defendant
Washington decided not to plead guilty. Defendant further notes that Co-defendant
Washington “was found not guilty of said offenses.” The State responds that the joint plea
offer was properly withdrawn when Co-defendant Washington decided not to accept the
plea.
Initially, as pointed out by the State, Defendant in his brief references a plea offer
of fifteen years at thirty percent that was made prior to jury selection. However, the record
does not contain a transcript of the jury selection or any other discussion concerning this
offer. Therefore, his claim as to the pretrial offer is waived. See Tenn. R. App. P. 24(b)(it
is defendant’s burden to prepare a complete transcript). There was a discussion about
another plea offer that occurred at the onset of the third day of trial. Defense counsel
informed the trial court that Defendant had been offered “a total effective of 15 at 100 on
one Count, 8 at 30 on another. He also noted that Defendant had accepted the offer and
was “willing to plea[.]” The discussion of this offer, which was also rejected by Co-
defendant Washington, was included in the record on appeal. “[T]here is no constitutional
right to plea bargain.” Weatherford v. Bursey, 429 U.S. 545, 561 (1977). The decision to
extend, or, conversely, withdraw a plea offer at any time prior to its acceptance by the trial
court lies solely within the discretion of the prosecutor, and “[t]here is simply no authority
for the proposition that a plea agreement can be enforced prior to acceptance by the court.”
State v. Turner, 713 S.W.2d 327, 329 (Tenn. Crim. App. 1986) (citing Metheny v. State,
589 S.W.2d 943, 945 (Tenn. Crim. App. 1979) ); see also Parham v. State, 885 S.W.2d
375, 382 (Tenn. Crim. App. 1994) (stating that “the district attorney general may withdraw
or revoke the plea agreement” until it is accepted by the trial court).
“When there are multiple defendants, the district attorney general may make an offer
of settlement contingent upon all of the defendants accepting the offer and pleading guilty.”
Parham 885 S.W.2d at 382. This court has consistently approved of “all or nothing” or
“package” deals like the one offered in this case. See, e.g., State v. Street, 768 S.W.2d 703(Tenn. Crim. App. 1988); Hodges v. State, 491 S.W.2d 624 (Tenn. Crim. App. 1972); see
also, e.g., State v. Joseph Lance Risner, No. E2002-01112-CCA-R3-PC, 2003 WL
21492929 (Tenn. Crim. App. June 30, 2003); Edward Dean Mullins v. State, No. E2002-
00730-CCA-R3-PC, 2003 WL 402814 (Tenn. Crim. App. Feb. 24, 2003); Crystal Rena
Sturgill v. State, No. E2002-00385-CCA-R3-PC, 2003 WL 239743 (Tenn. Crim. App. Feb.
4, 2003); Natasha W. Cornett v. State, No. E2002-00034-CCA-R3-PC, 2002 WL
31174214 (Tenn. Crim. App. Sept. 30, 2002). Nothing about the facts of this case
distinguish it from any others in which similar plea offers have been made. See Hodges,
491 S.W.2d at 628.
In this case, the prosecutor extended a plea offer to Defendant and Co-defendant
Washington expressly conditioned upon both men accepting the offer. Although
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Defendant accepted the offer, Mr. Washington declined to plead guilty, and the offer was
withdrawn by the prosecutor. The prosecutor acted properly and did not engage in
prosecutorial vindictiveness in making the joint plea offer to Defendant and Co-defendant
Washington and then withdrawing the offer when Co-defendant Washington declined to
plead guilty. Prosecutorial vindictiveness occurs when a prosecutor punishes or retaliates
against a defendant for exercising his legal or constitutional rights. See North Carolina v.
Pierce, 395 U.S. 711, 724-25 (1969); State v. Gossett, No. W2015-02414-CCA-R3-CD,
2017 WL 1163683, at *16-17 (Tenn. Crim. App. Mar. 28, 2017). Defendant had no
constitutional right to a guilty plea, and he did not exercise a legal or constitutional right
by accepting the plea offer. Accordingly, Defendant is not entitled to relief on this issue.
CONCLUSION
After a thorough review of the record, we affirm the judgments of the trial court.
____________________________________
JILL BARTEE AYERS, JUDGE
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