State of Tennessee v. Alejandro Neave Vasquez and Nazario Araguz

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs at Knoxville May 15, 2012
STATE OF TENNESSEE v. ALEJANDRO NEAVE VASQUEZ
and NAZARIO ARAGUZ
Appeal from the Criminal Court for Davidson County
No. 2009-B-1141 Steve Dozier, Judge
No. M2010-02538-CCA-R3-CD - Filed November 28, 2012
A Davidson County jury convicted appellants, Alejandro Neave Vasquez and Nazario
Araguz, of conspiracy to deliver 300 grams or more of cocaine in a drug-free school zone and
possession with intent to deliver 300 grams or more of cocaine in a drug-free school zone.
The trial court sentenced appellant Vasquez to an effective twenty-year sentence and
sentenced appellant Araguz to an effective seventeen-year sentence. On appeal, both
appellants argue that: (1) the trial court erred in denying their motions to suppress; (2) the
trial court erred in admitting evidence regarding money recovered by law enforcement; (3)
the evidence was insufficient to support their convictions; and (4) the trial court erred in
denying appellants’ requests for a special jury instruction and in granting the State’s request
for a special jury instruction. After reviewing the record, the parties’ briefs, and applicable
law, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
N ORMA M CG EE O GLE, JJ., joined.
James O. Martin, III (on appeal); Richard McGee (at trial), Nashville, Tennessee, for the
appellant, Alejandro Neave Vasquez.
William E. Griffith (on appeal); Robert P. Ballinger (at trial), Nashville, Tennessee, for the
appellant, Nazario Araguz.
Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and John Zimmerman
and Rachel Thomas, Assistant District Attorneys General, for the appellee, State of
Tennessee.
OPINION
I. Facts and Procedural History
A Davidson County grand jury indicted each appellant for one count of conspiracy to
deliver 300 grams or more of cocaine in a drug-free school zone and one count of possession
with intent to deliver 300 grams or more of cocaine in a drug-free school zone. Appellants
filed motions to suppress the cocaine and money that law enforcement officers found when
they stopped a vehicle in which appellant Araguz was driving and appellant Vasquez was a
passenger. The trial court denied the motions to suppress, and appellants were convicted as
charged at trial. The facts were set forth at the suppression hearing and at trial.
A. Suppression Hearing
Detective John Simonik with the 20th Judicial District Drug Task Force testified that
on February 18, 2009, a confidential informant advised him of a potential drug transaction.
Detective Simonik had used the informant in previous investigations. He said the
information provided by this informant in the previous investigations produced evidence of
criminal activities and led to the recovery of narcotics, the seizure of weapons, and
convictions of those parties involved.
Regarding this case, the informant told Detective Simonik he could arrange for an
unknown Hispanic male to deliver to him a kilogram (“kilo”) of cocaine. The informant had
been talking to an unknown black male subject who arranged for the Hispanic male to bring
the kilogram of cocaine to 528 Norton Avenue. Detective Simonik told the informant to
go look at this kilo of cocaine and cook a piece of [it] up into crack cocaine
and tell them that it wasn’t coming back good, that it wasn’t producing the
right amount of cocaine and then tell him that he didn’t want . . . the kilo of
cocaine because of this reason.
Detective Simonik explained that the plan was for the informant to send the cocaine back so
law enforcement could track it and find the “stash house.”
Before the transaction, officers placed a recording device on the informant, searched
the informant for narcotics and contraband, and confiscated the informant’s “personal
money.” The officers were at a remote location, and the recording device allowed them to
listen to the informant’s communications while at the Norton Avenue home. Detective
Simonik stated that the informant arrived at the home on Norton Avenue and went inside.
A white Volkswagen Jetta, which was registered to appellant Araguz, drove up to the home,
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and two unknown Hispanic males exited the vehicle. Detective Simonik did not see the two
men enter the home. However, the informant told him they entered and described them to
Detective Simonik. The recording device captured the informant’s asking the men about the
prices of cocaine.
The State played the audio recording from the transaction in open court. Detective
Simonik testified that he recognized the informant’s voice on the recording. He said he heard
the men open the package and heard the informant cook the cocaine in a microwave. After
cooking the cocaine, the informant told the men the cocaine “cooked up real soft,” just as
Detective Simonik had directed him. The informant also told the men the cocaine did not
produce the correct weight of crack cocaine, which indicated that it was not pure. The
informant asked the men to lower the original price for the kilo, which was $32,500, to
$30,000. One of the men told the informant that “if the [informant] could get something
going on, they would cut the [informant,] and they could come tomorrow.” The informant
and the Hispanic men left the residence. Detective Simonik met with the informant and
searched him. The Hispanic men left the home in the Jetta, and surveillance units followed
the men to a laundromat.
Detective Simonik testified that Detective Justin Fox was in a surveillance unit
reporting his observations to Detective Simonik via police radio. Detectives followed the
kilogram of cocaine as it was transferred to multiple vehicles. A suspect eventually brought
the kilogram of cocaine to a house at 925 Strand Fleet Drive, in Antioch, Tennessee.
Detective Simonik remained in contact with other detectives who reported their observations
to him. Based on the observations of the other officers, Detective Simonik went to the Strand
Fleet Drive house.
When Detective Simonik arrived at the house on Strand Fleet Drive, he observed the
black Chevrolet Tahoe that the surveillance units were also following. Detective Simonik
saw Jose Aragus1 exit the Tahoe and go inside the house carrying a white bag. Surveillance
officers had previously described the white bag to Detective Simonik. The detectives
determined this location was possibly the “stash house,” so Detective Simonik went to obtain
a search warrant while other detectives continued to conduct surveillance on the house.
Detective Simonik stated that while he was obtaining a search warrant, officers
summoned him to the scene of a vehicle stop on Richards Road. The vehicle that the officers
stopped was a brown Ford F-150 with a personalized license plate that said “Araguz.” The
officers on the scene had already searched the vehicle when Detective Simonik arrived. They
1
The record indicates that Jose Aragus and Appellant Araguz spell their surnames differently.
Aragus was indicted with appellants; however, he is not a party to this appeal.
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found one kilogram of cocaine inside a white bag in the engine compartment of the vehicle.
Detective Simonik examined the bag and said it looked like the bag he had observed earlier.
The officers also seized a brown paper bag containing a large amount of money from under
the front seat and plastic bags containing large amounts of money from under the backseat
of the vehicle. The total amount of money seized was $123,015.
Appellant Araguz was driving the brown F-150, and appellant Vasquez was a
passenger. Detectives advised appellants of their Miranda rights. Appellant Vasquez said
he understood his rights and declined to give a statement. Appellant Araguz stated that he
understood his rights and gave a statement to detectives. Detective Simonik said he did not
offer an interpreter to appellant Araguz during the traffic stop because “it appeared that he
spoke pretty good English.”
On cross-examination, Detective Simonik testified that the informant was reliable and
had helped in three other investigations, two that yielded the expected amount of drugs and
one that yielded more than the expected amount. The informant was on probation when he
helped with these three investigations. Detective Simonik recalled that the informant initially
began helping the drug task force to “work off” charges and later became a paid informant.
Under their agreement, the informant was not to arrange any transactions without Detective
Simonik’s knowledge. He said he did not ask the informant for the unknown black male’s
name or interview the unknown black male to learn any additional information. Detective
Simonik was unsure if detectives executed a search warrant at the home of the informant’s
friend but said they might have done so.
Detective Simonik testified that the informant did not give him names or physical
descriptions of the Hispanic men with whom he was going to meet. He also did not describe
the vehicles that would be involved in the transaction. Detective Simonik said he did not
know who lived at 528 Norton Avenue, but he thought the unknown black male was
connected to that address. He believed that the unknown black male was at the house on
Norton Avenue and said the officers did not search him before he went into the home. The
detectives did not photograph or video record the activity at the house on Norton Avenue.
Detective Simonik stated that he first saw appellant Vasquez when he arrived at the scene
of the traffic stop, and he did not have any evidence that appellants were in the Norton
Avenue home.
Detective Justin Fox with the Metro Nashville Police Department testified that he
participated in the investigation that led to appellants’ arrests. He was a member of the team
that conducted surveillance of 528 Norton Avenue. On February 18th at 4:53 p.m., a black
male arrived at the home on Norton Avenue. The informant arrived at the home at 6:30 p.m.,
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and the white Volkswagen Jetta arrived at 6:37 p.m. Detective Fox said he observed two
Hispanic men exit the Jetta and enter the home.
Detective Fox testified that he also observed the informant and the two Hispanic men
leave the home. The two Hispanic men drove away in the Jetta at 7:03 p.m. One Hispanic
man was heavyset and wore a red hat. The other Hispanic man was skinny, spoke English,
and translated for the heavyset Hispanic man. Detective Fox followed the Jetta after it left.
The Jetta pulled into the parking lot of a laundromat, and two Hispanic men exited the
vehicle and got into a white pickup truck. Other surveillance units followed the white pickup
truck while Detective Fox continued to follow the Jetta, which was driven by the heavyset
Hispanic man who was wearing the red hat.
Detective Fox stated that the Jetta entered the Nob Hill Villa apartment complex and
parked in front of the D building. Detective Fox observed the man exit the vehicle and open
the vehicle’s trunk. The man looked around to ensure no one was watching him and
retrieved a dark-colored block from the trunk. Detective Fox stated that he thought the block
was cocaine based on his experience. He said the cocaine was packaged in a compressed
brick form when it was for sale and distribution. The heavyset Hispanic man placed the
dark-colored block in a shiny white bag, looked around again, and got back into the Jetta.
Detective Fox stated that the man left the Nob Hill Villa Apartments, and he continued
to follow the Jetta as it went across the street to a gas station and parked in front of a black
Chevrolet Tahoe. The heavyset Hispanic man exited the Jetta with the white bag that
contained the dark-colored block and went to the passenger side of the Tahoe. The man
leaned into the vehicle and placed the white bag in the Tahoe’s middle console area. While
he was doing this, Jose Aragus was pumping gas for the Tahoe. The heavyset Hispanic man
then returned to his car and left. Aragus finished pumping his gas, got into the Tahoe, and
drove away with Detective Fox following him.
Detective Fox testified that he followed the Tahoe to 925 Strand Fleet Drive. The
Tahoe parked in the driveway, and Detective Fox continued to watch the Tahoe and the men.
Aragus exited the Tahoe and went inside the home. Detective Fox observed a brown F-150
pickup truck that had “Araguz” on the license plate pull into the home’s driveway. Appellant
Vasquez and appellant Araguz exited the truck and entered the home. Appellants and Aragus
eventually exited the home, and Detective Fox observed appellant Vasquez carrying the
white bag containing the dark-colored block. Appellant Araguz opened the hood of the
brown pickup truck, and appellant Vasquez placed the white bag on the left side of the
engine compartment. Appellants then got into the brown pickup truck and left. Surveillance
units followed appellants. A short time later, Aragus exited the home, got into the Tahoe,
and left. Detective Fox followed him.
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On cross-examination, Detective Fox stated that he did not see the heavyset Hispanic
man carry anything out of the Norton Avenue house. He stated that he was unable to see
through the white bag that contained the dark-colored block. The first time Detective Fox
saw the cocaine was at the Nob Hill Villa Apartments. He was not present when officers
recovered the evidence from the vehicles.
Detective Fox stated that after the heavyset Hispanic man transferred the package to
the Tahoe, he drove away in the Jetta. Detective Fox followed the Tahoe because it had the
drugs in it. None of the officers followed the Jetta, and Detective Fox did not know the
identity of the heavyset Hispanic man.
Sergeant Robert Fidler with the Metro Nashville Police Department testified that he
participated in the investigation that led to appellants’ arrests. Director James McWright and
Detective Fox told him about their observations at 925 Strand Fleet Drive, including the
brown F-150 that left that address. Sergeant Fidler stated that the brown F-150 passed him
as it was going to and from the address. He said Drug Enforcement Agency authorities
initiated a traffic stop of the brown F-150, and he participated in the search. Officers
immediately took appellants into custody. Sergeant Fidler opened the hood of the vehicle
and observed the package Detective Fox had described to him. He called for a K-9 unit to
come to the scene to detect any hidden drugs. Officers on the scene did not touch the drugs
until the K-9 unit arrived. Sergeant Fidler further testified that officers seized more than
$120,000 from the vehicle.
Officer Isaac Wood with the Metro Nashville Police Department testified that he
participated in the investigation of this case. He identified an affidavit he completed that
stated the probable cause for appellant Vasquez’s arrest. The affidavit alleged appellant
Vasquez was a passenger in a vehicle that picked up a kilogram of cocaine from 925 Strand
Fleet Drive. It further stated that officers observed someone put a bag containing a kilogram
of cocaine into the engine compartment of the vehicle in which appellant Vasquez was a
passenger. According to the affidavit, the officers followed the vehicle until it reached a safe
area for a felony traffic stop. The vehicle went past J.E. Moss Elementary School and pulled
into a parking lot at 941 Richards Road. Officers took appellants into custody. Appellant
Vasquez advised officers that the driver was just taking him to his vehicle, which was in the
parking lot.
Officer Wood stated that he completed his affidavit based on what officers broadcast
over the police radio. He did not see the suspects who put the cocaine in the engine
compartment of the vehicle. His affidavit stated, “Officers observed the co-defendant in this
case put a bag that contained a kilogram into the engine compartment.” He said that when
he wrote “co-defendant” he was referring to someone other than appellant Vasquez.
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On cross-examination, Officer Wood testified that officers did not include the names
of the suspects in the brown F-150 while broadcasting the information about the vehicle.
However, they identified the suspects by describing their clothing and physical attributes.
Officer Wood later “matched up” each suspect based on those descriptions and included that
information in his affidavit. Officer Wood estimated that officers arrested appellants
approximately fifteen to twenty minutes after he heard over the radio that someone placed
cocaine under the hood of the vehicle.
At the conclusion of the hearing, the trial court denied the motions to suppress, finding
that the officers had reasonable suspicion that criminal activity was occurring and that the
police officers’ observations gave probable cause to stop the vehicle and search it for
contraband.
B. Trial
At the July 19, 2010 jury trial, several officers testified regarding the 20th Judicial
District Drug Task Force’s investigation on February 18, 2009. Director James McWright,
Sergeant Robert Fidler, Detective Justin Fox, and Detective Isaac Wood presented testimony
corroborating each other’s testimony and testified consistently with the evidence established
at the suppression hearing.
In addition to their testimony consistent with the facts established at the suppression
hearing, the officers’ testimony at trial further showed that the package they recovered from
under the hood contained a “kilo-shaped” object that had been cut open. The object was a
brick of white powdery substance “one and [a] half to two inches high, the size of a
kilogram, wrapped in black tape that had been cut open with a smaller bag of crack cocaine
pushed back down in the hole and taped back over it.” Sergeant Fidler testified that
kilograms were typically packaged like the object the officers found in this case, “[a]bout one
and a half to two inches high, kind of in a rectangular form.” The smaller bag of crack
cocaine that the informant had cooked was in the middle of the brick. Officers also found
a brown shopping bag containing a “Ziploc” storage bag containing $20,000 to $30,00 under
the passenger seat. They found more plastic bags containing money under the backseat of
the vehicle. Officers recovered approximately $123,000 from the vehicle, $3,784 from the
appellant Vasquez, and $7,843 from appellant Araguz. Sergeant Fidler testified that he was
not aware of any connection between the money found in the truck and the activity at the
Norton Avenue home or the white bag that contained the kilogram.
Detective Wood placed the cocaine and money that officers recovered from the
vehicle in his police vehicle and transported them to the drug task force office. He stated that
the block of cocaine was already cut open when he recovered it from the scene. The block
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contained a small clear cellophane bag of cocaine base. At the drug task force office,
Detective Wood photographed and weighed the cocaine. He also performed a field test on
it. The following day, Detective Wood transported the evidence to the police department’s
property room.
The officers who were still conducting surveillance at the Strand Fleet Drive home
observed Aragus exit the house, get into the Tahoe, and leave. Director McWright instructed
Officers Fox and Wood to stop Aragus. According to Director McWright, Aragus was
cooperative and signed a consent form allowing officers to search his home without a
warrant. Officers searched the Strand Fleet Drive home, which belonged to Aragus’s
girlfriend, and recovered a small amount of marijuana. They did not find any “testing
equipment” at the home. However, the officer found $6,000, three counterfeit $100 bills,
two guns, and six cellular telephones inside the home.
Denotra Patterson, a special agent forensic scientist with the Tennessee Bureau of
Investigation, testified as an expert in forensic chemistry. She stated that she tested the
substance recovered in this case and determined that it was cocaine, a Schedule II controlled
substance. The total weight of the cocaine was 2.7 pounds, which was more than 300 grams.
She also tested a substance that she determined to be cocaine base and said it weighed 4.1
grams. She explained that cooking the cocaine powder converted it to cocaine base.
David Klein, the manager of the Metropolitan Planning Department Mapping
Division, testified that he generated an aerial map for the area around J.E. Moss Elementary
school. He stated that the north side of the school faces Richards Road. The map showed
a 1,000-foot boundary around the school. Mr. Klein testified that the area of traffic stop on
Richards Road was within 1,000 feet of the school.
Steve Keele testified that he was a director of school security for Metro Nashville
public schools. He stated that his duties required him to know where schools are located
throughout Davidson County. He was familiar with J.E. Moss Elementary School and said
that in February 2009, it was an active elementary school operated by the board of education.
The State rested its case-in-chief. Appellant Araguz waived his right to testify.
Appellant Vasquez likewise declined to testify; however, he entered Sergeant Fidler’s
testimony from the suppression hearing as substantive evidence.
After hearing the evidence and deliberating, the jury convicted both appellants of
conspiracy to deliver more than 300 grams of cocaine in a drug-free school zone and
possession with intent to deliver more than 300 grams of cocaine in a drug-free school zone.
The trial court sentenced appellant Vasquez to serve concurrent twenty-year sentences for
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each count, for a total effective sentence of twenty years in the Tennessee Department of
Correction. The court sentenced appellant Araguz to concurrent seventeen-year sentences
for each count, for a total effective sentence of seventeen years to be served in the Tennessee
Department of Correction. Appellants filed motions for new trials, which the trial court
denied, resulting in the instant appeal.
II. Analysis
A. Motion to Suppress
Appellants first argue that the trial court erred by denying their motions to suppress
the evidence obtained from the brown Ford F-150 pickup truck. They contend that the
officers did not have probable cause to support the warrantless seizures of appellants and
resulting warrantless search of the vehicle because there was not a sufficient nexus between
the activity at the Norton Avenue home and the police officers’ observations. The State
responds that the trial court properly denied the motions to suppress because the officers had
probable cause to arrest appellants and search the vehicle. We agree with the State.
A trial court’s findings of fact at a hearing on a motion to suppress are binding upon
this court unless the evidence contained in the record preponderates against them. State v.
Ross, 49 S.W.3d 833, 839 (Tenn. 2001). As the trier of fact, the trial court is in a better
position to assess the witnesses’ credibility, determine the weight of the evidence and the
value to be afforded it, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). However, the trial court’s conclusions of law are not binding on this
court. State v. Randolph, 74 S.W.3d 330, 333 (Tenn. 2002). Further, the trial court’s
applications of law to the facts are questions of law that we review de novo. State v. Daniel,
12 S.W.3d 420, 423 (Tenn. 2000). On appeal, the prevailing party is entitled to the strongest
legitimate view of the evidence and all reasonable inferences drawn therefrom. State v.
Hicks, 55 S.W.3d 515, 521 (Tenn. 2001). The defendant bears the burden of establishing that
the evidence contained in the record preponderates against the trial court’s findings of fact.
Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975).
At a hearing on a motion to suppress evidence recovered as a result of a warrantless
search, the State must prove that the search was reasonable. State v. Coulter, 67 S.W.3d 3,
41 (Tenn. Crim. App. 2001). To carry its burden, the State must prove that law enforcement
conducted the warrantless search or seizure pursuant to one of the narrowly-defined
exceptions to the warrant requirement. State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000).
Our supreme court has held:
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[U]nder both the federal constitution and our state constitution, a search
without a warrant is presumptively unreasonable, and any evidence obtained
pursuant to such a search is subject to suppression unless the [S]tate
demonstrates that the search was conducted under one of the narrowly defined
exceptions to the warrant requirement. Moreover, Tennessee has approved of
and adopted exceptions to the requirement of obtaining a valid search warrant,
including search incident to arrest, plain view, stop and frisk, hot pursuit,
search under exigent circumstances, and others.
State v. Cox, 171 S.W.3d, 174, 179 (Tenn. 2005) (internal citations omitted).
Exigent circumstances exist: “‘(1) when officers are in ‘hot pursuit’ of a fleeing
suspect; (2) when the suspect presents an immediate threat to the arresting officers or the
public; or (3) when immediate police action is necessary to prevent the destruction of vital
evidence or thwart the escape of known criminals.’” State v. Adams, 238 S.W.3d 313, 321
(Tenn. Crim. App. 2005) (quoting State v. Givens, No. M2001-00021-CCA-R3-CD, 2001
WL 1517033, at *3 (Tenn. Crim. App. Nov. 29, 2001)). In State v. Meeks, 262 S.W.3d 710,
723 (Tenn. 2008), our supreme court added an additional situation, “to render emergency aid
to an injured person or to protect a person from imminent injury,” to the list of circumstances
that would establish exigent circumstances. The mere existence of one of these
circumstances does not, in and of itself, validate a warrantless search; the State must also
show that “the exigencies of the situation made the search imperative.” State v. Yeargan, 958
S.W.2d 626, 635 (Tenn. 1997). The question of whether the exigent circumstances were
sufficient to justify a warrantless search is a mixed question of law and fact that we review
de novo. Meeks, 262 S.W.3d at 722.
The following guidance from our supreme court is instructive on this issue:
[I]n assessing the constitutionality of a warrantless search, the inquiry is
whether the circumstances give rise to an objectively reasonable belief that
there was a compelling need to act and insufficient time to obtain a warrant.
The exigency of the circumstances is evaluated based upon the totality of the
circumstances known to the governmental actor at the time of the entry. Mere
speculation is inadequate; rather, the State must rely upon specific and
articulable facts and the reasonable inferences drawn from them. The
circumstances are viewed from an objective perspective; the governmental
actor’s subjective intent is irrelevant. The manner and the scope of the search
must be reasonably attuned to the exigent circumstances that justified the
warrantless search, or the search will exceed the bounds authorized by
exigency alone.
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Id. at 723-24.
As noted above, there are several exceptions to the presumption that a warrantless
search and seizure is invalid, including searches incident to lawful arrests and searches
supported by probable cause in the presence of exigent circumstances. State v. Richards, 286
S.W.3d 873, 878 (Tenn. 2009) (citing State v. Day, 263 S.W.3d 891, 901 n. 9 (Tenn. 2008);
State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007)). A well-recognized exception to the rule
that warrantless searches are unreasonable is “that an officer of the law may search an
automobile without a warrant if, at the time, he has probable cause to believe that it contains
contraband and if the circumstances existing are such that the vehicle will probably escape
before a search warrant can be obtained.” State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976)
(citing Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216 (1968)). “Probable cause in the
context of a warrantless arrest ‘exists, if at the time of the arrest, the facts and circumstances
within the knowledge of the officers, and of which they had reasonably trustworthy
information, are sufficient to warrant a prudent man in believing that the [defendant] had
committed or was committing an offense.’” State v. Lewis, 36 S.W.3d 88, 98 (Tenn. Crim.
App. 2000) (quoting State v. Bridges, 963 S.W.2d 487, 491 (Tenn. 1997)).
Here, the officers had probable cause to arrest appellants and search the vehicle that
they occupied based on the trustworthy and reliable information from their observations and
their reasonable inferences that appellants had placed a kilogram of cocaine under the hood
of the vehicle. Appellants claim a lack of a nexus between the activity at the Norton Avenue
home and the search and seizure of appellants. However, the evidence showed that after the
informant told the Hispanic men at Norton Avenue that the cocaine was not cooking
properly, they negotiated the price and eventually left the home with a dark colored block
that officers believed to be the kilogram of cocaine. Detective Fox testified that based on his
law enforcement experience, he recognized the block as a kilogram of cocaine. “Our courts
have previously held that an officer, qualified by training and experience to detect and
identify [narcotics], can establish probable cause upon such detection.” State v. Luis Perez,
W2004-00980-CCA-R3-CD, 2005 WL 1114463, at * 4 (Tenn. Crim. App. May 11, 2005)
(citing State v. Hughes, 544 S.W.2d 99, 101 (Tenn. 1976); Hicks v. State, 534 S.W.2d 872,
873-74 (Tenn. Crim. App. 1975)). Officers observed the kilogram of cocaine as it was
transferred from the Jetta to the Tahoe and from the Tahoe to the brown F-150 occupied by
appellants. Moreover, appellants concealed the contraband by placing it in the engine
compartment of the vehicle, which supported the officers’ belief that the object was cocaine.
See State v. Alvin Dean Shaver, No. 134, 1986 WL 4292, at * 8 (Tenn. Crim. App, April 9,
1986) (noting that an officer’s observation of appellant attempting to hide contraband
coupled with prior information about the crime produced enough probable cause to justify
a warrantless search and seizure.) Considering the totality of the circumstances, including
information provided by the informant and the officer’s observations, the officer had
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probable cause to search the vehicle in which appellants were riding. Accordingly, we
conclude that the trial court’s denial of the motion to suppress was proper and the evidence
obtained from the stop of the vehicle was admissible. Appellants are not entitled to relief on
this issue.
B. Motion in Limine
Appellants next argue that the trial court committed error when it denied their motions
in limine to prevent the State from introducing evidence about the money found in the
vehicle. They contend that the money was not relevant to any fact in issue. The State
responds that appellants waived this issue because the record does not contain a transcript
of the hearing on the motion or the trial court’s order disposing of the motion. We agree with
the State that appellants have waived this issue.
Appellants have a duty to prepare a record that conveys “a fair, accurate and complete
account of what transpired with respect to the issues which form the basis of the appeal” and
will enable the appellate court to decide the issues. Tenn. R. App. P. 24(a); see State v.
Taylor, 992 S.W.2d 941, 944 (Tenn. 1999).
It is well-established that an appellate court is precluded from considering an
issue when the record does not contain a transcript or statement of what
transpired in the trial court with respect to that issue. Moreover, the appellate
court must conclusively presume that the ruling of the trial judge was correct,
the evidence was sufficient to support the defendant’s conviction, or the
defendant received a fair and impartial trial. In summary, a defendant is
effectively denied appellate review of an issue when the record transmitted to
the appellate court does not contain a transcription of the relevant proceedings
in the trial court.
State v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). Accordingly, we conclude
that appellants did not adequately preserve this issue for appeal and have thereby waived
appellate review of this claim. See State v. Young, No. W2008-01885-CCA-R3-CD, 2010
WL 161502, at *2 (Tenn. Crim. App. Jan. 15, 2010).
C. Sufficiency
Both appellant Araguz and appellant Vasquez challenge the sufficiency of the
convicting evidence. Specifically, they contend that the evidence was insufficient to prove
that they knowingly possessed cocaine or conspired to deliver cocaine.
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The standard for appellate review of a claim of insufficiency of the State’s evidence
is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana, 406
U.S. 356, 362 (1972)); see Tenn. R. App. P. 13(e); State v. Davis, 354 S.W.3d 718, 729
(Tenn. 2011). To obtain relief on a claim of insufficient evidence, appellant must
demonstrate that no reasonable trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319. This standard of review
is identical whether the conviction is predicated on direct or circumstantial evidence, or a
combination of both. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011); State v. Brown,
551 S.W.2d 329, 331 (Tenn. 1977).
On appellate review, “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));
State v. Williams, 657 S.W.2d 405, 410 (Tenn. 1983); State v. Cabbage, 571 S.W.2d 832,
835 (Tenn. 1978). In a jury trial, 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 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). This court presumes that the jury
has afforded the State all reasonable inferences from the evidence and resolved all conflicts
in the testimony in favor of the State; as such, we will not substitute our own inferences
drawn from the evidence for those drawn by the jury, nor will we re-weigh or re-evaluate the
evidence. Dorantes, 331 S.W.3d at 379; Cabbage, 571 S.W.2d at 835; see State v. Sheffield,
676 S.W.2d 542, 547 (Tenn. 1984). Because a jury conviction removes the presumption of
innocence that appellant enjoyed at trial and replaces it with one of guilt at the appellate
level, the burden of proof shifts from the State to the convicted appellant, who must
demonstrate to this court that the evidence is insufficient to support the jury’s findings.
Davis, 354 S.W.3d at 729 (citing State v. Sisk, 343 S.W.3d 60, 65 (Tenn. 2011)).
To sustain appellants’ convictions for possession with intent to deliver 300 grams or
more of cocaine in a drug-free school zone, the State was required to prove that appellants
knowingly possessed 300 grams or more of cocaine with the intent to deliver. Tenn. Code
Ann. § 39-17-417 (2010). Possession of a controlled substance may be actual or
constructive. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). A person constructively
possesses a drug when the person has both the power and intention to exercise dominion and
control over the drugs either directly or indirectly through others. See State v. Patterson, 966
S.W.2d 435, 444-45 (Tenn. Crim. App. 1997). “One’s mere presence in an area where drugs
are discovered, or one’s mere association with a person who is in possession of drugs, is not
alone sufficient to support a finding of constructive possession.” Shaw, 37 S.W.3d at 903.
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“Proof that a possession is knowing will usually depend on inference and circumstantial
evidence. Knowledge may be inferred from control over the vehicle in which the contraband
is secreted.” State v. Brown, 915 S.W.2d 3, 7 (Tenn. Crim. App. 1995) (internal citations
omitted) (citing United. States v. Pierre, 932 F.2d 377, 392 (5th Cir. 1991)).
Appellants’ sole contention is that there was no evidence that they knowingly
possessed cocaine. “[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.” Tenn. Code Ann. § 39-11-302(b) (2010). Viewed in the
light most favorable to the State, the evidence showed that appellants entered the house on
Strand Fleet Drive that contained the cocaine. Officers then observed appellants exit the
house. When they exited, appellant Vasquez was holding the packaged cocaine. Appellant
Araguz opened the hood of his truck and stood by as appellant Vasquez placed the package
in the engine compartment of the truck. Appellant Araguz then closed the hood of his truck,
and appellants drove away in the truck with the package concealed under the hood.
Appellants’ joint effort in concealing the package under the vehicle’s hood is circumstantial
evidence that they knew the package contained cocaine and were attempting to prevent its
discovery. See State v. Randall Bishop, No. M2004-02641-CCA-R3-CD, 2005 WL 3038624,
at *3 (Tenn. Crim. App. Nov. 8, 2005) (noting that “the defendant’s attempt to hide the
iodine jug provided evidence of his knowledge of the manufacturing as well as his intent to
prevent discovery of the process”).
Moreover, the large quantity of cocaine in appellants’ possession was circumstantial
evidence that appellants possessed the cocaine with the intent to deliver. “It may be inferred
from the amount of a controlled substance or substances possessed by an offender, along with
other relevant facts surrounding the arrest, that the controlled substance or substances were
possessed with the purpose of selling or otherwise dispensing.” Tenn. Code Ann.
§ 39-17-419 (2010). Additionally, the manner in which the cocaine was packaged and the
lack of drug paraphernalia are strong indicators that the cocaine was for delivery rather than
personal use. See State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995). The large
amount of cash found in the vehicle is another strong indicator that the appellants were
engaged in selling drugs for profit. Further, the evidence showed that appellants possessed
the cocaine within 1,000 feet of J.E. Moss Elementary School.
To sustain the conviction for conspiracy to deliver 300 grams or more of cocaine in
a drug-free school zone, the State had to prove the existence of a conspiracy to commit the
crime discussed above.
The offense of conspiracy is committed if two (2) or more people, each having
the culpable mental state required for the offense that is the object of the
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conspiracy, and each acting for the purpose of promoting or facilitating
commission of an offense, agree that one (1) or more of them will engage in
conduct that constitutes the offense.
Tenn. Code Ann. § 39-12-103(a) (2010). A jury may not convict a defendant of conspiracy
to commit an offense unless the State proves the defendant or another with whom the
defendant conspired committed an overt act in furtherance of the conspiracy. Id. § 39-12-103
(d).
The evidence showed that appellants engaged in a conspiracy to possess 300 grams
or more of cocaine with intent to deliver. Appellants need not manifest their agreement to
engage in the criminal activity underlying the conspiracy by any formal words or by a written
agreement. State v. Cook, 749 S.W.2d 42, 44-45 (Tenn. Crim. App. 1987) (citing Randolph
v. State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978)). Further, “[t]he unlawful
confederation may be established by circumstantial evidence, and by the conduct of the
parties in the execution of the criminal enterprise.” Id. (citing Randolph 570 S.W.2d at
871.). Here, appellants committed overt acts in furtherance of the conspiracy. Appellants
entered and exited the home on Strand Fleet Drive together. Upon exiting the home,
appellants went to the brown Ford F-150 and, acting in concert, concealed the cocaine in the
engine compartment of the truck. After concealing the cocaine, appellants transported it
from the home together.
A reasonable jury could have inferred that appellants possessed 300 grams or more
of cocaine with the intent to deliver. Moreover, the jury could have reasonably inferred that
appellants agreed to commit the offense and committed an overt act in furtherance of the
crime. Accordingly, we conclude that the evidence was sufficient to support appellants’
convictions, and they are not entitled to relief on this issue.
D. Jury Instructions
Finally, appellants argue that the trial court erred in granting the State’s request for
a special jury instruction and by denying their request for a special jury instruction. The State
responds that the trial court issued a complete charge on the applicable law, thus, appellants
are not entitled to relief. We agree with the State.
At trial, defendants have a “constitutional right to a correct and complete charge of
the law.” State v. Garrison, E2011-00496-CCA-R3CD, 2012 WL 3079238, at *6 (Tenn.
Crim. App. July 27, 2012) (quoting State v. Teel, 793 S.W.2d 236, 249 (Tenn.1990)). “A
defendant has a right to have every issue of fact raised by the evidence and material to his
defense submitted to the jury upon proper instructions by the trial court. State v. Phipps, 883
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S.W.2d 138, 149-50 (Tenn. Crim. App. 1994) (citing Casey v. State, 491 S.W.2d 90, 94
(Tenn. Crim. App. 1972)). However, trial courts are not required to give special instructions
if the general jury charge covers the substance of the requested special instructions. State v.
Wendi Nicole Garrison, No. E2011-00496-CCA-R3CD, 2012 WL 3079238, at *6 (Tenn.
Crim. App. July 27, 2012). “The test for whether a special instruction must be given is
whether ‘there is any evidence which reasonable minds could accept as to any such [defense]
. . . .’” State v. Anthony Eugene Poole, No. M2010-01179-CCA-R3CD, 2012 WL 826605,
at *6 (Tenn. Crim. App. Mar. 9, 2012), perm. app. denied (Tenn. Aug. 16, 2012) (quoting
Johnson v. State, 531 S.W.2d 558, 559 (Tenn. 1975)). Questions regarding the propriety of
jury instructions are mixed questions of law and fact; thus, our standard of review is de novo
with no presumption of correctness. State v. Rush, 50 S.W.3d 424, 427 (Tenn. 2001); State
v. Smiley, 38 S.W.3d 521, 524 (Tenn. 2001).
On appeal, this court will only invalidate a jury instruction if, “when read as a whole,
it fails to fairly submit the legal issues or misleads the jury as to the applicable law.” State
v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995). “A challenge to a single jury
instruction must be judged in context of the entire jury charge.” State v. Bonam, 7 S.W.3d
87, 89 (Tenn. Crim. App. 1999). When reviewing a challenge to a particular jury instruction
on appeal, the key consideration is “‘whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process.’” State v. Odom, 336 S.W.3d
541, 568 (Tenn. 2011) cert. denied, 132 S. Ct. 397, 181 L. Ed. 2d 255 (U.S. 2011) (quoting
State v. Rimmer, 250 S.W.3d 12, 31 (Tenn. 2008)). A charge that results in prejudicial error
is one that fails to fairly submit the legal issues to the jury or misleads the jury about the
applicable law. Wendi Nicole Garrison, 2012 WL 3079238, at *6 (citing State v. Hodges,
944 S.W.2d 346, 352 (Tenn. 1997)).
Appellants assert that the trial court committed error when it denied their request for
a special jury instruction. Appellants filed motions requesting the court to instruct the jury
as follows:
In order for a verdict of guilty to be returned as to either Count 1 or Count 2
of the indictment the State must [have proved] beyond a reasonable doubt that
[appellants] knew that substance contained in the bag retrieved from the
[residence of] Jose Aragus was, in fact, cocaine.
The trial court denied the request and instructed the jury pursuant to Tennessee Pattern Jury
Instruction 31.04. Appellants assert that the court’s instruction confused the issue of whether
appellants knew the package contained cocaine and that it lessened the State’s burden of
proof.
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The trial judge instructed the jury that the State had to prove beyond a reasonable
doubt that appellants “knowingly possessed Cocaine, a Schedule II controlled substance.”
The trial judge further instructed the jury as follows:
“Knowingly” means that a person acts knowingly with respect to the conduct
or to the circumstance surrounding the conduct when the person is aware of
the nature of the conduct or that the circumstances exist. A person acts
knowingly with respect to a result of the person’s conduct when the person is
aware that the conduct is reasonably certain to cause the result.
The trial court’s instruction gave a correct and complete charge of the law. It did not
confuse the issue of whether appellants knowingly possessed cocaine with the intent to
deliver and did not lower the State’s burden of proof as alleged by appellants. The
instruction clearly defined the “knowingly” mental state, and there was no need for further
instruction. Thus, the trial court did not err by denying appellants’ requests for special jury
instructions regarding the “knowingly” mens rea.
Appellants further argue that the trial court erred when it granted the State’s motion
for a special instruction explaining that the jury did not have to find that appellants intended
to drive through a school zone. In their briefs2 , both appellants challenge the State’s request
that the trial court instruct the jury that “[t]he State is not required to prove any defendant
knowingly or intentionally committed the offense on the grounds or facilities of any school
or within one thousand feet of real property that comprises a public or private elementary
school, middle school or secondary school.” Appellants assert that this instruction gave the
jury “the impression that no mental state was required and thus gave a misleading application
of the law.” We have reviewed the jury charge in this case and find that the trial court did
not issue this instruction to the jury. Moreover, this court has previously held that the Drug-
Free School Zone Act is an “enhancement statute” and does not require a mens rea. State v.
Smith, 48 S.W.3d 159, 167 (Tenn. Crim. App. 2000); see State v. Jenkins, 15 S.W.3d 914,
917 (Tenn. Crim. App. 1999) (holding that if the state legislature intended the Drug-Free
School Zone Act to be an enhancement statute, it does not require explicit mens rea
language). Accordingly, we conclude that this issue is without merit and appellants are not
entitled to relief.
2
We note that the record does not contain the State’s motion requesting the special instruction.
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CONCLUSION
Based on the foregoing, we affirm the judgments of the trial court.
_________________________________
ROGER A. PAGE, JUDGE
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