IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 22, 2016 Session

STATE OF TENNESSEE v. KEVIN WELLS

Direct Appeal from the Criminal Court for Sullivan County

No. S62728 James F. Goodwin, Jr., Judge

No. E2015-00561-CCA-R3-CD – Filed July 25, 2016

A Sullivan County Criminal Court Jury convicted the appellant, Kevin Wells, of 

possession of a Schedule II controlled substance with intent to sell or deliver, a Class C 

felony; two counts of possession of a Schedule III controlled substance with intent to sell 

or deliver, a Class D felony; and driving on a revoked license, a Class B misdemeanor, 

and he received an effective thirteen-year sentence as a Range III, persistent offender. On 

appeal, the appellant contends that the trial court erred by denying his motion to suppress 

evidence, by allowing the State to introduce text messages from a codefendant‟s cellular 

telephone into evidence, and by admitting his statement into evidence. Based upon the 

oral arguments, the record, and the parties‟ briefs, we affirm the judgments of the trial 

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court are

Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS and TIMOTHY L. EASTER,JJ., joined.

William A. Kennedy (on appeal), Blountville, Tennessee, and Todd East (at trial), 

Kingsport, Tennessee, for the appellant, Kevin Wells. 

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior Counsel; 

Barry P. Staubus, District Attorney General; and Kent Chitwood, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background
- 2 -

In January 2014, the Sullivan County Grand Jury charged the appellant and 

Angela Graham by presentment with count one, possession of oxycodone, a Schedule II 

controlled substance, with intent to sell or deliver; count two, possession of 

buprenorphine, a Schedule III controlled substance, with intent to sell or deliver; count 

three, possession of diazepam, a Schedule IV controlled substance, with intent to sell or 

deliver; count four, possession of dihydrocodeinone, a Schedule III controlled substance, 

with intent to sell or deliver; and count six, possession of a firearm during the 

commission of a dangerous felony. In count five, the grand jury charged the appellant 

with driving on a revoked license. The State jointly tried the defendants in December 

2014. 

Although the appellant does not contest the sufficiency of the evidence, we will 

summarize the proof presented at trial. Deputy Burke Murray of the Sullivan County 

Sheriff‟s Department (SCSD) testified that on January 28, 2013, he was a detective in the 

Narcotics Division and attended a meeting at the Sullivan County Courthouse. After the 

meeting, Deputy Murray and several other officers were standing outside when they saw 

a silver Mustang enter the parking lot and pull into a parking space. Deputy Murray saw

the appellant get out of the driver‟s seat and Graham get out of the front passenger seat 

and go into the courthouse lobby. Investigator Micah Johnston told the officers that he 

knew the appellant‟s driver‟s license had been revoked. Officer Ray Hayes “called and 

confirmed” that the appellant‟s license had been revoked, so the officers went inside the 

courthouse.

Deputy Murray testified that he and the other officers were in “plain clothes,” that 

he identified himself to the appellant, and that he asked for the appellant‟s driver‟s 

license. The appellant said he did not have a license, and Deputy Murray told him that 

“we saw you drive in.” At that point, Graham “interjected and said that she was driving.” 

Deputy Murray asked for her driver‟s license, and Graham said that it was in the car. 

Deputy Murray asked “if we could go get it,” and Graham said yes. Graham, Deputy 

Murray, and Investigator Johnston went outside to the Mustang while Officer Hayes 

remained inside with the appellant. As the officers and Graham were walking to the car, 

Investigator Johnston asked her if any knives or guns were in the vehicle, and she told 

him that two guns were in the trunk. Deputy Murray asked Graham if they could secure 

the guns, and she opened the trunk and told him that “the guns in the car were hers, 

belonged to her ex-husband.” While Investigator Johnston secured the weapons, Deputy 

Murray asked Graham about the location of her license. Graham opened the passenger 

door and said her license was in her purse, which Deputy Murray saw on the front seat. 

He said that he asked if he could get the purse, that he took the purse off the front seat, 

and that Graham “pointed to it.” Deputy Murray said that he handed Graham her wallet 

and that she got out her license. Deputy Murray stated that as he had taken the purse out 
- 3 -

of the car, he had noticed “a number” of pill bottles in the purse. Deputy Murray

“pointed that out” to Officer Hayes, who had come outside to the car. Deputy Murray put 

the purse on the hood of the car and “got on the phone” to check Graham‟s driver‟s 

license.

Deputy Murray testified that Graham “made the comment that all the medications

in there were hers because she saw me looking at the pill bottles in her pocketbook.”

Officer Hayes asked her “if the counts were right” and for consent to look at the pills.

Officer Hayes then asked her “about the pill counts being off,” and she said that she had 

had a death in the family recently and had over-consumed some of her medications. The 

officers arrested Graham “for the pills found in the car and the guns,” and she asked them 

to get a telephone number for her from her cellular telephone. She gave the officers the

passcode for the telephone, and Officer Hayes accessed the telephone and gave her the 

number. Deputy Murray said that they kept the telephone in order to search it for 

evidence of distributing and selling the pills.

On cross-examination, Deputy Murray acknowledged that Graham had a valid 

driver‟s license. He testified that he and two other officers interviewed the appellant after 

the appellant‟s arrest and that they did not record the interview. Defense counsel asked 

Deputy Murray, “Okay, and [Graham] had recently, like November 10th is when she and 

Mr. Wells got married[?]” The officer answered, “I don‟t know that date.”

On redirect examination, Deputy Murray testified that during the appellant‟s 

interview, the appellant stated that he had a “drug problem,” that he had used Roxycontin 

and Roxicet, and that he often sold Roxicet at work. Roxicet was a Schedule II 

controlled substance.

Investigator Micah Johnston of the Kingsport Police Department (KPD) testified 

that in January 2013, he worked in the KPD‟s Vice and Narcotics Unit. On January 28, 

he and other officers were outside the Sullivan County Courthouse and noticed a vehicle 

“pull up.” The driver got out of the car, and Investigator Johnston recognized him as the 

appellant. Investigator Johnston knew that the appellant‟s driver‟s license had been 

revoked and told Deputy Murray because they were in Deputy Murray‟s jurisdiction. 

Investigator Johnston verified the status of the appellant‟s license, the officers went 

inside, and the officers approached the appellant.

Investigator Johnston testified that after they talked with the appellant, they spoke 

with Graham. Investigator Johnston and Deputy Murray “escorted” Graham to her car 

and asked if she had anything illegal in the vehicle. He explained that “we always ask if 

there are any narcotics, guns, anything of that nature.” Graham gave the officers consent 

to search the car, told them that weapons were in the trunk, and opened the trunk for 
- 4 -

them. Investigator Johnston searched the trunk and found two handguns wrapped in 

clothing and ammunition in a man‟s boot. He found a cigarette pack containing 

“numerous pills” in the passenger compartment. At first, he said he found the cigarette 

pack in the storage compartment of the passenger door. However, he later stated that he 

could not remember if he found the pack in the driver‟s door or the passenger‟s door.

On cross-examination, Investigator Johnston acknowledged that when he and 

Deputy Murray walked Graham to her car, Graham had not committed any crime. 

Graham was honest with them about the guns in the trunk, and neither gun was loaded. 

Officer Ray Hayes of the SCSD testified as an expert in illegal narcotics 

trafficking in Sullivan County that on January 28, 2013, he attended a narcotics meeting. 

Officers were standing outside and saw a gray Mustang pull into the parking lot. The 

appellant got out of the driver‟s seat, and Graham got out of the passenger seat. 

Investigator Johnston advised the other officers about the appellant‟s driving history and 

checked with his dispatcher about that history. Officer Hayes also verified the 

appellant‟s driving history with his dispatcher. After Officer Hayes confirmed that the 

appellant did not have a valid driver‟s license, the officers arrested the appellant in the 

courthouse. Officer Hayes watched officers take the appellant to “booking” and then 

went outside to assist Deputy Murray and Investigator Johnston with Graham. The 

Mustang‟s trunk was open, and Investigator Johnston was searching it. Deputy Murray 

and Graham were standing by the passenger side of the car, and Deputy Murray asked 

Officer Hayes to search Graham‟s purse. Officer Hayes said that they obtained Graham‟s

consent, that he searched the purse, and that he found pills and pill bottles. Officer Hayes

also found pill bottles in and near the center console, and Investigator Johnston gave 

Officer Hayes a cigarette pack that he had found in the pocket of the driver‟s door. The 

pack contained two white tablets of buprenorphine, also known as Suboxone.

Officer Hayes testified as follows regarding the pill bottles he found: A pill bottle 

in the purse was prescribed to Graham and contained two dihyrocodeinone pills. A

second bottle in the purse was prescribed to Graham for promethazine but contained 

oxycodone. A third bottle in the purse was prescribed to Graham for oxycodone but was 

empty. A fourth bottle in the purse was prescribed to Graham for diazepam and 

contained diazepam. A bottle of Equate gas relief pills in the purse contained three pink 

pills that were oxycodone, fifteen milligrams. A pill bottle in the console was a

prescription bottle, but Officer Hayes could not read “who it‟s for or anything like that.”

A second prescription bottle in the console had Graham‟s name on it for Suboxone, eight 

milligrams, but was empty. Regarding the manner in which the pills were packaged, 

Officer Hayes stated as follows:
- 5 -

A lot of times when they have illegal narcotics such as pills 

they will put it in another pill bottle to ---- so a lot of people 

look at it and see that‟s what it is, they won‟t open it up and 

look inside. So what they do is they put that in there to make

somebody look and say, “Oh, that‟s all it is, it‟s gas relief,” as 

in the Equate gas relief and they might not look through it but 

we looked through it and that‟s what we found, the illegal 

narcotics. 

Officer Hayes testified that in addition to the pill bottles, he also found urine in a 

“syringe type bottle.” The bottle was “in the driver‟s compartment.” After the officers 

arrested Graham, she said she needed to get a telephone number from her cellular 

telephone. She gave the officers her “pin” for the telephone, and they accessed the 

telephone. They gave the number to Graham and collected her telephone as evidence. 

Officer Hayes later applied for and received a search warrant for the phone. After he 

executed the warrant, he interviewed the appellant. During the interview, the appellant 

admitted that he had a “pill problem” and said that he took seven or eight Oxycontins per 

day. He also stated that he was selling Oxycontin and Suboxone at his place of 

employment. Officer Hayes asked to search the appellant‟s cellular telephone, but the 

appellant refused.

Detective Matthew Price of the SCSD testified as an expert in the forensic analysis 

of digital devices that he downloaded instant messages to and from Graham‟s iPhone 

onto a “thumb drive” and gave the information to Officer Hayes. Over the appellant‟s 

objection, Detective Price read some of the messages for the jury. For example, on 

December 6, 2012, Graham‟s phone received a message stating, “„I want two if you got 

it.‟” A message sent from Graham‟s phone replied, “„Okay, yeah, we can prob come by

while we are out.‟” On December 13, 2012, Graham‟s phone received a message stating, 

“„Hey, do you have two or three of those things with you[?]‟” On December 26, 2012, a 

message was sent from Graham‟s phone that said, “„If you need something I can get 

Kevin to see you somehow after while if you want.‟” About three hours later, the phone 

received messages stating that “„Rick said he wants two, too, so four altogether‟” and that 

“„They‟re just 20, right[?]‟” Shortly thereafter, Graham‟s phone sent a message that said, 

“„He gonna be in the Mustang . . . and he will pull in the back of the corner like we 

usually do[.]‟” On January 2, 2013, Graham‟s phone sent a message that stated, “„[W]ell 

I only have three and some people at Kevin‟s work want some so just text me when you 

know and if I need to I can get some more in the morning.‟” On January 10, 2013, 

Graham‟s phone received a message that said, “„God these [f***ing] heads have done 

nothing but ring my phone off the hook[.]‟”
- 6 -

On cross-examination, Detective Price acknowledged that he did not know who 

sent any of the messages. Defense counsel for the appellant asked if the messages could 

have been taken out of context, and Detective Price answered, “[A]ll I did was [perform] 

the extraction and turn my results over to Detective Hayes.”

Officer Hayes was recalled by the State and testified that he thought the messages 

read by Detective Price were pertinent to the investigation of this case. He stated that 

“heads” in the January 10 message could have been referring to “pill heads,” people 

trying to buy pills for their addiction. At the conclusion of Officer Hayes‟s testimony, 

the State rested its case.

Angela Graham testified that she was prescribed oxycodone for pain her in back, 

legs, knees, and feet in 2006 or 2007. In December 2010, she underwent gastric bypass 

surgery, lost a lot of weight, and felt like she no longer needed the pain pills. A new 

doctor prescribed buprenorphine and conducted “pill count[s]” to make sure she was 

taking the correct amount of medication every month. In November 2012, Graham‟s 

gallbladder was removed, which resulted in “a lot of issues” due to the gastric bypass 

surgery. 

Graham testified that in January 2013, she was living in Kingsport with her two 

teenage daughters “and sometimes Kevin.” On January 23, Graham‟s mother died 

unexpectedly, and she was “very upset.” She said she had a prescription for diazepam,

also known as Valium, and she acknowledged that five pills were missing from the bottle 

when she was arrested on January 28. She said that she had consulted her doctor and that 

he had told her that she could “take a couple of extra considering the circumstances.” In 

addition to her prescriptions for buprenorphine and diazepam, Graham also had 

prescriptions for oxycodone and dihydrocodeinone.

Graham acknowledged that on January 28, she told the officers that she was 

driving the Mustang. The officers handcuffed the appellant, and Graham asked them not 

to take him to jail. The officers asked to see her driver‟s license and “escorted” her to the 

car. Graham told the officers that two guns were in the trunk. She told the jury that the 

guns and boots in the trunk belonged to her ex-husband, whom she had divorced in June 

2012. Graham acknowledged that the pills in the purse and the cigarette pack were hers 

and said that she had to take gas pills every day for the rest of her life. She stated that she 

“overlooked” having the wrong pills in the wrong bottles.

Graham testified that the appellant worked for Hutchinson Sealing and made seals 

for speaker boxes. She stated that she helped him and that the messages sent to her 

iPhone and read by Detective Price were referring to the seals or energy drinks. She said 

she did not sell prescription drugs.
- 7 -

On cross-examination, Graham testified that she did not send all of the messages 

from her iPhone. She said that she did not give the officers the passcode for her phone

and that they obtained access to the phone by answering it when the appellant called her 

from jail. She acknowledged that the January 10 message about “heads” was sent to her 

from the appellant‟s telephone but denied knowing that the appellant was selling drugs. 

She maintained that the messages in question were referring to speaker seals.

At the conclusion of the proof, the jury found the appellant and Graham guilty as 

charged of count one, possession of oxycodone with intent to sell or deliver, a Class C 

felony; count two, possession of buprenorphine with intent to sell or deliver, a Class D 

felony; and count four, possession of dihydrocodeinone with intent to sell or deliver a 

Class D felony. The jury also convicted the appellant of count five, driving on a revoked 

license, a Class B misdemeanor. The jury found the appellant and Graham not guilty of 

count three, possession of diazepam with intent to sell or deliver, and count six, 

possession of a firearm during the commission of a dangerous felony. After a sentencing 

hearing, the trial court sentenced the appellant as a Range III, persistent offender to 

concurrent sentences of thirteen years in count one and ten years in counts two and four. 

The trial court sentenced the appellant to six months in count five and ordered that it be 

served concurrently with the other three sentences for a total effective sentence of 

thirteen years.

II. Analysis

A. Motion to Suppress

The appellant contends that the trial court erred by denying his motion to suppress 

evidence obtained from the officers‟ search of the Mustang and Graham‟s purse because 

the officers “illegally detained” the appellant, had no probable cause to believe Graham 

had committed a crime, had no right to “instruct” Graham to provide her driver‟s license, 

and had no reason to question her about the pills or investigate the pill bottles when 

“there is nothing inherently suspicious in the presence of prescription bottles in a purse.”

The State argues that the trial court properly denied the motion to suppress. We agree 

with the State.

Before trial, the appellant and Graham filed motions to suppress the evidence 

obtained in this case. In the appellant‟s motion, he argued that the officers could have 

checked the status of Graham‟s license “through Central Dispatch” as they did the 
- 8 -

appellant‟s license and that “the search and seizure of Defendant Graham‟s personal 

vehicle were illegal, unlawful, [and] unreasonable.”

1

 

At the hearing on the motions, Deputy Murray testified as he did at trial that the 

officers saw the appellant get out of the driver‟s seat of the Mustang, that the appellant 

and Graham went inside the courthouse, and that Officer Hayes verified that the 

appellant‟s license had been revoked. The officers went inside, Deputy Murray asked the 

appellant for his license, and Graham “spoke up and said that she was driving the car.” 

Deputy Murray knew Graham had not been driving and asked her for identification. 

Graham told him that it was in the car, and he asked “if we could get it.” Graham said 

yes and walked outside to the car with Deputy Murray and Investigator Johnston. Deputy 

Murray stated that Investigator Johnston asked Graham “if there was anything illegal in 

the car; guns, knives, drugs, or anything,” that she told them guns were in the trunk, and 

that she gave them the keys to open the trunk. While Investigator Johnston secured the 

weapons, Deputy Murray asked Graham about her driver‟s license, and Graham pointed 

to her purse on the passenger seat. Deputy Murray asked Graham if he could get her 

license, and she said yes. He opened the car door, and she told him that her license was 

in her wallet. Deputy Murray opened the purse, pulled out the wallet, and obtained 

Graham‟s driver‟s license. He said that as he was taking the wallet out of her purse, he 

saw pill bottles in the purse.

Deputy Murray testified that he pointed out the pill bottles to Officer Hayes, who 

had come outside, and asked Graham if the pills had been prescribed to her. She said yes, 

and he asked her, “„Are all the pill counts right?‟” She said yes but that she “might have 

taken a few too many” due to a recent death. Deputy Murray asked if they could look 

through the purse, and she again said yes. Graham also told Investigator Johnston that he 

could “go ahead and look” inside the car. Investigator Johnston searched the passenger 

compartment and found a pack of cigarettes containing pills in the driver‟s door. Deputy 

Murray said that Officer Hayes began questioning Graham about the pills in her purse 

being in the wrong bottles and that Graham became “very irate.” At that point, Officer 

Hayes arrested her. Deputy Murray said that Graham never appeared afraid, that she was 

not reluctant to answer his questions, and that she was “voluntarily giving more 

[information] than I was asking for most of the time.” He said he never told Graham that 

she was not free to leave.

On cross-examination, Deputy Murray testified that his attention was drawn to 

Graham when she lied to him about driving the car. He said that he initially asked 

Graham for her “identification,” not her driver‟s license, and that the officers 

accompanied Graham to the car for officer safety because they had just arrested her 

 

1 Graham‟s motion is not included the record.
- 9 -

husband. He acknowledged that there was no reason the officers could not have checked 

the status of Graham‟s license from inside the courthouse. 

Investigator Johnston testified that he recognized the appellant when the Mustang 

pulled into a parking space, that he knew the appellant and Graham were possibly 

involved in the sale of narcotics, and that he knew the appellant did not have a valid 

driver‟s license. After Investigator Johnston verified the status of the appellant‟s license, 

the officers went inside the courthouse, and Deputy Murray approached the appellant. 

Graham told the officers that she had been driving, Deputy Murray asked Graham for her 

driver‟s license, and she said it was in the car. Investigator Johnston and Deputy Murray 

went to the car with her, Investigator Johnston secured the guns in the trunk, and Graham 

gave him consent to search the car.

On cross-examination, Investigator Johnston testified that when the officers 

entered the courthouse, Graham had not done anything illegal. After she lied about 

driving the Mustang, Deputy Murray asked to see her “ID,” and she told him it was in the 

car. He then asked her, “„Well, can we go get it?‟” Investigator Johnston said he did not 

remember Graham‟s giving a response to Deputy Murray‟s question.

Officer Hayes testified that he arrested the appellant and “went back out to the 

vehicle.” The trunk of the Mustang was open, and Deputy Murray was talking with 

Graham. Deputy Murray advised Officer Hayes about what he had seen in the purse and 

asked Graham for consent to search it. Graham said yes, and Officer Hayes looked 

through the purse. He said he was not present when Graham gave consent to search the

car.

Angela Graham testified that on January 28, 2013, she and the appellant went to 

the courthouse “[t]o pay his last $200 fine so he could get his license back.” At least four 

officers came into the clerk‟s office and asked the appellant if he was “Kevin Wells.” 

They said he was under arrest, and Graham told them that she was driving. The appellant 

had the car keys, so the officers arrested him and removed him from the scene. Deputy

Murray asked Graham for her identification or driver‟s license and told her, “„We need to 

see them.‟” Graham said she never felt that she was free to leave because the officers 

were “surrounding” her.

Graham testified that she told the officers that her identification and driver‟s 

license were in the car. Three officers “escorted” her to the Mustang, and Deputy Murray 

kept his hand on her shoulder as they walked. She said that she was told, not asked, to 

provide her license and that she never gave consent for the officers to search her car or 

purse.
- 10 -

On cross-examination by the State, Graham acknowledged that no one ever told 

her that she was not free to leave. The officers did not ask for consent to secure the guns

but told her that they needed to secure them and to open the trunk. After Graham opened 

the trunk, she opened the car door and took her purse off the passenger seat in order to 

obtain her license. She stated, “And that‟s when they stepped in, I guess. They said they 

seen the pill bottles which were mine. And that‟s when they stepped in and got - they got 

it theirself and started going through my purse.” She said that her mother‟s ring was in 

her purse and that she became irate because Deputy Murray “slung it out.”

At the conclusion of Graham‟s testimony, her counsel argued that the officers 

“seized” her in the courthouse despite the fact that she had not committed any crime and, 

therefore, that any evidence obtained from the illegal seizure should be suppressed. 

Counsel for the appellant did not question any of the witnesses or make any argument at 

the hearing. 

The trial court ruled that the admissibility of the evidence “boils down to 

credibility.” The court accredited the officers‟ testimony and found Graham not credible. 

The court noted that while the officers were testifying, Graham “sat there and rolled her 

eyes. She kind of kicked her elbow over at Mr. Wells one time. But I‟m not sure if it‟s 

to wake him up because he appears to be asleep right now.” The trial court stated that in 

addition to Graham‟s demeanor, “I have problems with some of the things she said 

because . . . I think she‟s trying to fit her testimony, not just give me an honest rendition 

of what she remembered happening.” The trial court stated that it “[didn‟t] believe . . . 

for a minute” that Deputy Murray kept his hand on Graham‟s shoulder as they walked to 

the car because “that‟s a sexual harassment suit waiting to happen” or that the officer

threw her mother‟s ring out of the purse. The trial court went on to state, “And it‟s these 

little things that I don‟t believe. And it calls into question her whole testimony.” The 

trial court found that the initial encounter between the officers and Graham was 

consensual and that she gave them consent to search the trunk and the purse. The court 

went on to state that the appellant did not have standing to challenge the admissibility of 

the evidence because “[t]he testimony was it was her car.”

In reviewing a trial court‟s determinations regarding a suppression hearing, 

“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and 

resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier 

of fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). Thus, “a trial court‟s findings 

of fact in a suppression hearing will be upheld unless the evidence preponderates 

otherwise.” Id. Nevertheless, appellate courts will review the trial court‟s application of 

law to the facts purely de novo. See State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001). 

Furthermore, the State, as the prevailing party, is “entitled to the strongest legitimate 

view of the evidence adduced at the suppression hearing as well as all reasonable and 
- 11 -

legitimate inferences that may be drawn from that evidence.” Odom, 928 S.W.2d at 23. 

Moreover, we note that “in evaluating the correctness of a trial court‟s ruling on a pretrial 

motion to suppress, appellate courts may consider the proof adduced both at the 

suppression hearing and at trial.” State v. Henning, 975 S.W.2d 290, 299 (Tenn. 1998).

Both the Fourth Amendment to the United States Constitution and article I, section 

7 of the Tennessee Constitution provide protection for citizens against “unreasonable 

searches and seizures.” Generally, a warrantless search or seizure is considered 

presumptively unreasonable, and, thus, violative of constitutional protections. State v. 

Davis, 484 S.W.3d 138, 143 (Tenn. 2016). However, “one of the exceptions to the 

warrant requirement is a search conducted pursuant to consent.” State v. Bartram, 925 

S.W.2d 227, 230 (Tenn. 1996) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 

(1973), and State v. Jackson, 889 S.W.2d 219, 221 (Tenn. Crim. App. 1993)). “The 

sufficiency of consent depends largely upon the facts and circumstances in a particular 

case.” Jackson, 889 S.W.2d at 221. Whether consent exists and “„whether it was 

voluntarily given are questions of fact.‟” State v. Ashworth, 3 S.W.3d 25, 29 (Tenn. 

Crim. App. 1999) (quoting State v. McMahan, 650 S.W.2d 383, 386 (Tenn. Crim. App. 

1983)). The prosecution bears the burden of proving that the defendant freely and 

voluntarily gave consent. See McMahan, 650 S.W.2d at 386.

As to the appellant‟s claim that he was illegally detained, we disagree. The 

officers saw the appellant driving the Mustang, and Investigator Johnston knew that the 

appellant did not have a valid driver‟s license. The officers even verified the status of the 

appellant‟s revoked license before confronting him. Thus, the officers had probable 

cause to arrest the appellant. See Beck v. Ohio, 379 U.S. 89, 91 (1964) (providing that 

another exception to the warrant requirement is an arrest by an officer who has probable 

cause to believe that a defendant has committed a crime). 

Turning to the evidence seized from the purse, the purse belonged to Graham, and 

nothing indicates that the appellant had a legitimate expectation of privacy in the purse. 

Thus, he has no standing to challenge the officers‟ searching it. See Rawlings v. 

Kentucky, 448 U.S. 98, 104-06 (1980). In any event, the trial court found that Graham 

freely and voluntarily consented to the search of her purse, and nothing in the record 

preponderates against that finding. As to the evidence seized from the car, specifically 

the pills discovered in the passenger compartment, the trial court found that the appellant 

lacked standing to challenge the search of Graham‟s car. During oral argument, the 

appellant alleged that the trial court erred because he and Graham were married at the 

time of the search and, therefore, he had a legitimate expectation of privacy in the 

vehicle. However, even assuming arguendo that the appellant had a legitimate 

expectation of privacy in the Mustang, the trial court firmly accredited the testimony of 

the officers, who stated that Graham consented to a search of the car. Again, nothing 
- 12 -

from the suppression hearing or trial preponderates against the finding of the trial court. 

Accordingly, we conclude that the trial court properly denied the appellant‟s motion to 

suppress.

B. iPhone Messages

Next, the appellant contends that the trial court erred by allowing the State to 

introduce the instant messages to and from Graham‟s iPhone into evidence in violation of 

Rule 404(b), Tennessee Rules of Evidence. The State claims that the appellant has 

waived this issue. We agree with the State and conclude that the appellant is not entitled 

to plain error relief.

Before trial, the appellant filed a motion in limine to exclude any reference to 

telephone text messages sent by the appellant or Graham. At trial, the appellant argued 

that the text messages were speculative, that they were “much more” prejudicial than 

probative, and that the State was “using past instances to try and convict them.” The 

State responded that even if the text messages were evidence of prior bad acts, they were 

admissible to show the defendants‟ intent. The trial court agreed with the State, stating 

that the texts “came in a very short time before January 28th,” that they were probative to 

the defendants‟ intent, and that the probative value of the texts was not outweighed by the 

danger of unfair prejudice. Prior to Detective Price‟s testimony, the appellant renewed 

his objection to the text messages. The trial court overruled the objection, and Detective 

Price read the instant messages to and from Graham‟s iPhone into evidence. 

Generally, a party may not introduce evidence of an individual‟s character or a 

particular character trait in order to prove that the individual acted in conformity with that 

character or trait at a certain time. Tenn. R. Evid. 404(a). Similarly, evidence “of other 

crimes, wrongs, or acts is not admissible to prove the character of a person in order to 

show action in conformity with the character trait.” Tenn. R. Evid. 404(b). Such 

evidence may be admitted for other purposes, though, if relevant to some matter actually 

at issue in the case and if its probative value is not outweighed by the danger of its 

prejudicial effect. Tenn. R. Evid. 404(b); State v. Wyrick, 62 S.W.3d 751, 771 (Tenn.

Crim. App. 2001). Issues to which such evidence may be relevant include identity, 

motive, common scheme or plan, intent, or the rebuttal of accident or mistake defenses. 

Tenn. R. Evid. 404(b), Advisory Comm‟n Cmts. Before the trial court may permit 

evidence of a prior crime, wrong, or act, the following procedures must be met:

(1) The court upon request must hold a hearing outside 

the jury‟s presence;

(2) The court must determine that a material issue 
- 13 -

exists other than conduct conforming with a character trait 

and must upon request state on the record the material issue, 

the ruling and the reasons for admitting the evidence;

(3) The court must find proof of the other crime, 

wrong, or act to be clear and convincing; and

(4) The court must exclude the evidence if its 

probative value is outweighed by the danger of unfair 

prejudice.

Tenn. R. Evid. 404(b). Provided that the trial court has complied with these procedures, 

this court will not overturn the trial court‟s decision to admit or exclude evidence under 

Rule 404(b) absent an abuse of discretion. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

1997).

The State claims that the appellant has waived this issue because he failed to raise 

it in his motion for new trial. We agree. In his motion, the appellant stated that 

“Defendant did not send any text messages presented in trial and any inference of 

Defendant‟s guilt may not be inferred from a Co-Defendant‟s text[s] that were not in 

relation to the time referred to in the indictment and were speculative to their meaning.”

The appellant did not raise the admissiblity of the messages pursuant to Tennessee Rule 

of Evidence 404(b) in his motion for new trial or at the hearing on the motion. See Tenn. 

R. App. P. 3(e). Nevertheless, we can review the issue for plain error. Tenn. R. App. P. 

36(b); see State v. Knowles, 470 S.W.3d 416, 423 (Tenn. 2015).

We may consider an issue to be plain error when all five of the following factors 

are met:

(a) the record must clearly establish what occurred in the trial 

court; (b) a clear and unequivocal rule of law must have been 

breached; (c) a substantial right of the accused must have 

been adversely affected; (d) the accused did not waive the 

issue for tactical reasons; and (e) consideration of the error is 

“necessary to do substantial justice.”

State v. Adkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994) (footnotes omitted); 

see also State v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting the Adkisson test for 

determining plain error). Furthermore, the “„plain error‟ must be of such a great 

magnitude that it probably changed the outcome of the trial.” Adkisson, 899 S.W.2d at 

642 (quoting United States v. Kerley, 838 F.2d 932, 937 (7th Cir. 1988)).
- 14 -

Here, the State was required to show that the appellant knowingly possessed the 

pills with intent to sell or deliver them. See Tenn. Code Ann. § 39-17-417(a)(4). 

Although the messages at issue did not specifically mention “pills,” they discussed the 

delivery of small numbers of items and the appellant‟s use of the Mustang, in which the 

police later found pills, to deliver those items. The trial court held a hearing outside the 

jury‟s presence, ruled that the instant messages were relevant to the defendants‟ intent to 

sell pills, and ruled that the probative value was not outweighed by the danger of unfair 

prejudice. The court obviously found that proof of the other crime, wrong, or act was

clear and convincing. Thus, we conclude that no clear and unequivocal rule of law was

breached and that the appellant is not entitled to plain error relief.

C. Defendant‟s Statement

Finally, the appellant contends that the trial court erred by allowing Deputy 

Murray to testify that the appellant said he had a drug problem and often sold drugs at 

work. He contends that the admissions were “so vague in time as to render [them] 

useless” and should have been excluded pursuant to Rule 404(b), Tennessee Rules of 

Evidence. However, the appellant did not object to the admissibility of his statements at 

trial, did not request a 404(b) hearing, and did not raise the issue in his motion for new

trial. Therefore, we conclude that the issue has been waived. See Tenn. R.App. P. 36(a), 

3(e). 

III. Conclusion

Based upon the oral arguments, the record, and the parties briefs, we affirm the 

judgments of the trial court.

_________________________________ 

NORMA MCGEE OGLE, JUDGE