# FILED
October 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL APPEALS OF TENNESSE E

AT NASHVILLE AUGUST 1998 SESSION

STATE OF TENNESSEE, ) ) C.C.A. No. 01C01-9711-CC-00510 Appellee, ) ) Giles County v. ) ) Honorable Robert L. Jones, J udge STEVE EDWARD HOUSTON, ) ) (Sale of Cocaine and Casual Exchange Appellant. ) of Cocaine)

FOR THE APPELLANT: FOR THE APPELLEE: Hershell D. Koger John Knox Walkup 131 North First Street Attorney General & Reporter P. O. Box 1148 425 Fifth Avenue, North Pulaski, TN 38478 Nashville, TN 37243-0493 Daryl J. Brand Assistant Attorney General 425 Fifth Avenue, North Nashville, TN 37243-0493 T. Michael Bottoms District Attorney Gener al P. O. Box 459 Lawrenceburg, TN 38464-0459 Stella L. Hargrove Assistant District A

ttorney General P. O. Box 459 Lawrenceburg, TN 38464-0459 Richard H. Dunavant Assistant District A

ttorney General P. O. Box 304 Pulaski, TN 38478-0304

OPINION FILED: __________________________
AFFIRMED L. T. LAFFERTY, SENIOR JUDGE2 

### O P I N I O N The appellant, Steve E. Houston,referred herein as the defend ant, appeals asof rightfrom convictions for two counts of casua l exch ange of cocaine, a Class A misdemeanor, and two counts of sale of coc aine, a Class C felony, by a Giles County jury. At the sentencing hearing, the tr ial court imposed two 15- year sentences, as a car ee r offender, to be served consecutively for the felony offenses

and 11 months and 29 days to be served concurrently f or the misdemeanors. In addition, the trial court ordered these two 15-year sentences to be serv ed consec utively to an outstanding 13-year sentence resulting from prior

convictions.

The appellant has presentedtwo issues for appellate review: (1)

whether the trial court erred in not severi ng the four offenses for trial, and (2) whether the trial court erred in not suppressing the March 22, 1995 taped conversation between the defendant , Kathy Fralix, and Agent Gilleland, or otherwis e by not redacting those portions whi ch were not directly related to the instant charge s that related to prior bad acts of the defendant, inflammatory and/or prejudicial statem ents by Agent Gilleland and Kath y Fralix and other matters irrelevant and p rejudicial.

After an appropriate review of the record in this cause, br iefs of all parties, and the law, we affirm the tr

ial court’s judgment.

FACTUAL BACKGROUND

From January through September, 1 995, the narcotics divisi on of the Tennessee Bureau of Investigation conducted an under cov er operat ion in Giles County and Maury County. Surveillance during thi s operation revealed thedefendant’s involvement in illegal drug activity. On January 1 3, 1995, Ag ent Maxey Gilleland equipped Kathy Fralix, an informant, with a transmitter and tape recorder. Fra lix, alo ng with the agent, drove her vehicle to the defendant’s home on Sumpter

Street in Pulaski to purchase an “eight ball”3

of crack cocaine. After checking the license plate on a vehicle at the defendant’s ho me, the vehicle was

found to be registered to the def endant. Agent Gilleland gave Fral ix $220 with which to buy the cocai ne.
KathyFralix entered the defendant’s home and emerged several minu tes later having purchased ten rocks of crack c ocaine. The recording of thi s transaction failed. However, the conversation between the agent and Fralix was recorded substantively giving the identity a nd description of the defendant, his residence, and his vehicle. The crime laboratory determined the s ubstance to be 1.2 grams of coc aine.

The second incident occurred on February 16, 1995, u nder the s ame conditions, except this time Agent Gillel and drove his vehicle. Agent Gilleland and Kathy

Fralix were wired with tape recorders and transm itter s which succeeded in recording the entire transaction. Fralixwent inside the defendant’s hom e, and Agent Gilleland was i nstructed to move his vehicle from the front o f the defendant’s home. Agent Gil leland watched the def endant leave the house, go around the lef t side to retrieve the coc aine, and then re enter the house. This time Fr alix returned to the vehicle with seven rocks of crack cocaine. From the audiotape, the defendant was concerned wi th the location of the vehicl e and wanted Agent Gilleland to dri ve off and return after the tr ansaction was complete. Fralix paid the defendant $200 for the crack cocaine, whic h the crime laboratory d etermined to be cocaine weighing 0.8 gram s.

On March 22, 1995, Agent Gillel and and Kathy Fralix attempt ed to buy $400 worth of cocaine from another individual, Demetri Perry, at a different loca tion. During this transaction, Fralix paid this individ ual the money before receiving the cocaine. The individual left and was to return wi th the cocaine; however, the def endant appeared on the
scene and entered into a conversation with Agent Gilleland and Fralix.This conversation
wa s recorded. The principal substance of the conversation involved the discu ssion o f drugs and, in particular, the defendant’s desire to supply Gilleland and Fr alix with cocaine. The defendant made various incr iminati ng state ments, however, no drug tr ansaction4

occurred during this occ asion.
On March 23, 1995, Special Agent Mark Irwin met

Kathy Fralix at the

Wal-Mart in Pulaski. Ms. Fralix was equipped wi th a transmitter and

recorder. Both Agent Irwin and Fralixproceeded to the defendant’s home. Ms. Fralix entered the d efendant’s home, remained for a short period of time, and returned to the vehic le to a ssist in parking it elsewhere. Shereturned to the residence, but came out with instructi ons to park the car further away. She emergedfrom the defendant’s home wi th nine rocks of crack cocain e, for which she

had paid $200. The crime laborator y determined the cocaine to w eigh 0.7 grams.

On March 31, 1995, Agent Irwin and Fralix again returned to the defendant’s home and parked “up the road.” After a short period of time, F ralix returnedand gave Agent Irwin eleven rocks of crack cocain e for which she had paid the defend ant $200. The crime laboratory determined the c ocaine measured 0.6 grams.

At trial, each of the five r ecordings was played for the jury. The methodof operation foreach transaction revealed that upon arrival of the purc hasing agent, the d efendan t exited his h ome, went ar ound the left side of his house,retrieved the cocaine, and completed delivery of the cocaine for the agreed price. Wi thout presenting any evidence, the defense rested.

I. Severance of Counts

The defendant was charged by the Gil es County grand jury in tw o indictments (one indictment

contained three counts). Pr ior to trial andafter a hearing at the request of the State, all cases were consolidated for tri al. There upon, the defendant made a corresponding motion to sever all counts which the trial court denied. After the jury trial, the defendant wasfound guilty of two counts of cas ual exchange of cocaine on the dates5

of January 13, 1995 and February 1 6, 1995, and two counts of sale of cocaine from the dates of March 23, 1995 and Mar ch 31, 1995.

The defendant contends this instant case does not fa ll under Tenn. R. Crim. P. 8(a)
as man datory joinder citing State v. Dunning, 762 S.W.2d 142 (Tenn. Crim . App. 198 8)

. We agree with the defe ndant this is not a case of mandatory joinder under Rule 8(a). However, Tenn. R. Crim. P. 8(b) permit s the tr ial court to utilize per missive joinder of offenses. Even the defendant concedes in his brief that “based upon the alleged offenses and the case summaries of eac h alleged off ense in indictment 7424 . . . the State could have permissibly joined the cases pursuant to Rule 8(b), under the theory that the alleged offenses are of the same or s imilar character.”

In State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995), this court held that when offenses are permissiv ely joined under Rule 8(b) , th e de fendant is entitled to
severance of those offenses unless (1) the offenses are a part of a co mmon scheme or plan and (2) the evidence wou ld be admissible at the tri al of the others. See also Tenn. R. Crim. P. 8(b), 13(

a), and 14(b)(1).

A. Common Scheme or Pl an

The first prong of Rule 14(b)(1), Tenn. R. Crim. P., re quires the trial court to find a
common scheme or plan. Hoyt, 928 S.W.2d at 943. To constitute a “common scheme or plan” as required by Tenn. R. C rim. P. 8(b) and 14(b)( 1), t he modus operandi of the offenses must be similar and m ust occur within a close proximity of

time thereby negating anyuncertainty that the offenses were committed by t he same defendant. State v. Peacock, 638 S.W.2d 837, 840 (Te nn. C rim. App.), per. app. denied (Tenn. 1982). To determine whether certain crimes fit into this category, “the test is not whether there was evidence that a defendant committed both crimes, but whether there was a unique method used in committing the crimes.” Hoyt, 928 S.W.2d at 943 (quoting Young v. State, 5666

S.W.2d 895, 898 (Tenn. Crim . App. 1978)).

The defendant contends that his moti on to sever should have been granted as of rightbecause the State failed to car ry the burden of proof with regard to t he “common scheme or plan.” In support of his claim, the defendant cites the cases of State v. Adams, 859 S.W.2d 359 (Tenn. Crim. App. 1992) and Hardy v. State, 519 S.W.2d 400 (Tenn. Crim. App. 1974). Thedefendant in Adams was charged with felony m urder and two counts of armed robbery. One of the robberi es took place at 2:30 a.m., and the other robbery which resulted in the felony murder charge t ook place two miles away at 3:50 a.m. Adams , 859 S.W.2d at 361. This court held that only the sugge stion of shar ed motivation would not constitute a “common scheme or plan,” and further stated “no physical ev idence linked the
cases together except the evidence that bo th cr imes were committed by the same two persons.” Id. at 362. Moreover, the court held that the failure to sever the cases did not require a n e w trial because the evidenc e of guilt was abundant. Id. at 363. The Adams
case is completel y dist inguishable because the present case contains linking phys ical evidence beyond the defendant’s commission of these fo ur offenses.
Also, the defendant cites the case of Hardy v. State, 519 S.W.2d 400 (Tenn. Crim. App. 1974). The ruling in Hardy preceded the adoption of the Tenness ee Rules of

Criminal Procedure, which became effective July 13, 1978. As a result, the decision i n Hardy has been limited in its appli cation. See Peacock, 638 S.W.2d at 839.

This court has repeatedly acknowledged “common scheme or plans” involving drug transactions

with similar

factual patterns as the State cites in its brief. See Charles “Ace” Barbee v. State, Dyer

County No. 02C01-9610-CC-00372, 1997 WL 399376 (Tenn. Crim. App., Jackson, July 16 , 1997) , per. app. denied (Tenn., Dec. 8, 1997) (involving same agent, same defendant, same transa ction a rea, same controlled substance, and small
am ount o f cocaine in four transactions). Although Barbee involved a post-convicti on appeal, this court held the offenses fit a “common scheme or pla n;” therefore, if counsel7

had made a motion to sever, it would not have been successful

. See also , State v. Joseph Clyde Beard, Jr., Sullivan County No. 03C01-9502-CR-00044, 199 6 W L 563893 (Tenn. Crim. App., Knoxville, Sept. 26, 1996) , per. app. denied (Tenn., Feb . 3, 1997) (finding “common scheme” where same inf ormant p u rchased similar amount s of cocaine from
same defendant for same amount of m oney in s a me location although transac tions occurred a month apart); State v. Roger D. Pulley, Wayne County No. 01C01-9501
- CC00013, 1995 WL 555060 (Tenn. Crim. App., Nashville, Sept. 20, 1995) (holding five offenses constituted “c ommo n scheme” occurring within eight weeks, involving same sequence of events, same informant, an d procedures); appeal after remand, No. 01C01- 9605-CC-00 217 , 1997 WL 438166 (Tenn. Crim . App, Nashville, July 31, 1997); State v. Steve Mosley, D ickson County No. 01C01-9211-CC-00345, 1993 WL 345542 (Ten n. Crim. App., Nashville, Sept. 9, 1993).

In the present

case, the four indicted

offenses transpired over a n approximate tenweek period, with two transac tions only eight days apart,each occurring at the defendant’s home. All of the transactions involv ed the same controlled substance,approximately the
same number of rocks with approximately the same weight, the same def endant, the same informant, and the same amount of mone y. Each time the defendant left his ho use and went around the left side to retr ieve the cocaine. Moreover, e ach tim e the agent approached in his vehicle, under instructions of the defendant, the agent moved his vehicle further away from the house. The proof was essentially the same modus operandi

in each offense, i.e., cl ose i n time, location, and charac ter. We conclude these four offenses constitute a “common scheme or pl an” as contemplated under Tenn. R. Crim. P. 8(b) and 14(b)(1).
B. Admissibility of E vidence of One at Other Trials

The second prong required under Rule 14(b)(1 ) for j oinder of offenses is that the evidence of one offense would be adm issible upon the trial of the others. Hoyt, 9281 The trial court did conduct a hearing on the defendant’s motion t o sever, but th e hearing minimally met Rule 404(b) requirements. The record does not reflect the tr ial court’s ruling as to Rule 404(b), in that no evidence was presented, no finding was made as to a material matter, and no bal ancing test was complet ed. 8 S.W.2d at 944. This court held this pr ong was satisfied if the ev idence would have been admissible under the provisions of Tenn. R. Evid. 404(b). Id. Generally, evidence of other crimesis not admissible to pr ove the defendant acted in conformity therewith, unless the trial court determines that a m aterial issue exists t o show identity, motive, intent, guilty knowledge, absence of mistake or inadv ertence, and other material points. Hoyt, 928 S.W.2d at 944; State v. Hallock, 875 S.W. 2d 285, 291 (Tenn. Crim. App. 1993), per. app. denied (Tenn. 1994).
Here, the defendant doesnot dispute that he committ ed the other

offenses, only that “none of the evidence of one case is relevant to any other case” under Tenn. R. Evid. 401, 402, and 403. Specifically, he argues that the introducti on of evidence regarding the other offenses violates fundamen t al fairness regarding pr ior bad acts under Tenn. R. Evid. 404(b). The tr ial court, in a pretrial hea ring, must weigh the evi dence to determine if the probative value is outweighed by the prejudici al effect. Tenn. R. Evid. 404(b)(3). This court has held: Fa ctor s in weighing the probative v alue include the prosecution’s need for the evidence, the likeli hoo d the defendant committed the other cri mes, and the de gree of its relevance. The similarity of the acts make the probative value particularly significa nt. The distinctive design i n the commission of a series of crimes may serve as th e ba sis for either admitting evidence of the other cri mes or having consolidated trials. State v. McKnight, 900 S.W.2d 36, 51 (Tenn. Cri m. App. 1994), per. app. denied (Tenn. 1995).

To comply with th e requ irements of Rule 14(b)( 1), the trial court was required to conduct a hearing to determine if evidence of one offense is relevant to a m aterial issue in the trial of the other offense and to determine whether the prob ative value ofsuch evidence outweighs any prejudicial effect. In the pre sen t case, the trial court di d not conduct such a hearing. 1 We elect to complete this analysis.9 The defendant does not contest the fact that he sold crack cocaine to the State’s agents. He defends the felony charges, however, upon grounds that his sales of cocaine
were “casual exchange” rather than a designedsale as contemplated by Tenn.Code. Ann. 39-17-417(a)(3). As such, the evidence of the other counts was relevant . Each of the transactions

were closely related wit h a distinctive design com mon among the four occurrences. The probative value of the evidence clearl y outweighs the danger of unfair prejudice. See Barbee, Dyer County No. 02C01-9610-CC-0 0372 (h olding evidence admissible as probative of both identity and guilt y knowle dge); see also , Pulley, Wayne County No. 01C01-9501-CC-00013; State v. Wayne Hymes Ri chards, Cumberland Co unty No. 03C01-9503-CR-00102 (Tenn.Crim. App., Knoxvill e, July 8, 1996). Thus, we conclude the evidence of one offense would be admissible upon the tri al of the others.
Furthermore, on appeal, the denial of the severance will not be overturned un less it appears the defendant was clear ly prejudiced. State v. Barbe r, 7 53 S.W.2d 659, 671 (Tenn.), cert. denied

, 488 U.S. 900, 109 S.Ct. 248, 102 L. Ed.2d 236 (1988) ; St ate v. Coleman, 619 S.W.2d 112, 116 (Tenn. 1981); Par h am v. State, 885 S.W.2d 375, 383 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). The defen dant has failed to demonstrate that he has been clear ly prejudiced.
Therefore, we conclude the trial court properly granted the permissi ve joinder of offenses and properly deniedthe defendant’s motion for severance. This issue is without merit. II. Suppression of the Audiotape

In his second issue, the de fendant challenges the admissi on of the audiotaped conversation of March 22, 1995 between A gent Gilleland, Fralix, and the defendant. Alterna tively, the defendant argues the trial c ourt erred by not redacting certain portions of this audiotaped conversation because the contested portion s did not directly relate to anyof the other charged offenses and would mislead a nd prejudice the jury. In support10

of this contention, the defendant relies upon Tenn. R . Evid. 404(b) and State v. Tizard, 897 S.W.2d 732, 734 (Tenn. Crim. App. 1994) , in that the defendant had particu lar propensity
or acted in conformity therewith in the stated offenses. The defendant contends that the introduction of this tape was not harmless error because in the two transactions preceding th is conversation, the jury onl y convicted him of casual exchange of cocaine, and in t h e two transactions following this conversation the jury convicted him of fe lony sale of cocaine.

In ruling on themotion to suppress, the trial c ourt found the defendant’s stateme nts regarding the $400 crack deals and steal ing away money fromhis competitors were “pl enty relevant and probative on the issue of casual exchange versus intent to engage in the kind of illicit bu siness.” The trial c ourt overruled the motion to suppress the entire audiotape and a motion to redact on all b ut three sentenc es. However, o n a subsequent motion to redact, the trial court granted the motion with regard to thr ee statements contained in the audiotape: (1) the self-serving statement of Fralix, the inform ant, that “Peps [defendant],
a big time dealer here,” (2) “Cops done got all my money man,” and (3) “I’ve been in and out of jail man.”

This particular audiotape recor ding stems from an unre lated drug transaction involving the purchase of cocaine by Agent Gilleland and Fral ix from another indivi dual at that individual’s resid ence . Fralix had “fronted” the individual $400 for coc aine, and the individual left t o secure the cocaine. While awaiting the return of the indivi dual, the defendant appeared at the residence and introduc ed himself to the

agent, Gilleland. Agent Gilleland explained the individual had left with the money towhich the defendant stated, “Four hundred -- goodness -- that would have made my day -- man -- you would have got your dope man.” The agent then asked for the price of an “eight ball” and the defendant stated, “All I got is . . . two hundred dollars worth . . . if I can get rid of that . . . I’m fixing to go get some real big stuff .

. . I have to get rid of that . . . I’m trying to start up now.” Still frustrated over his loss of the sal e, the defendant continued, “Damn man . . . four hundred11

. . . you could have come and seen me man . . . Hell, you and I need to t alk about . . . I need to know when you’re comi ng around.” From there, the defendant want ed to know how often the agen t came into to wn to purchase cocaine so that he could be his regular supplier. Sp eaking to the agent, the defendant said, “M an you trying to make it [ drug dealing] . . . I thought you was smoking like hell m an.”

The relevance of

evidence is determined by the trial court pursuant to Tenn. R. Evid. 401 and will not be overturned without an abuse of discretion. State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995); State v. Leath, 744 S.W.2d 591, 593 (Tenn. Cri m. App. 1987). A dec l aration of intent to engage in cr iminal conduct is rel evant and admissible, S ta te v. Woods, 806 S.W.2d 205, 209 (Tenn. Cri m. App. 1990), cert. denied , 502 U.S. 1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992), unless the re is n o app arent relationship between this s tatement an d the subsequent crime. The defendant’s statements on th is day reflect his attitude of intent to engage in the illi cit drug trade and, as a matter of fact, di d so the next day and eight days l ater. We conclude the redac ted version o f the tap e was relevant and admissible as the trial court proper ly found and was n ot unduly prejudicial, confusing, o r misleading to the jur y. This issue is wi

thout merit.
Thus, the judgment of the tri al court is affirmed.

______ ________________

_________________

_ L. T. LAFFERTY, SENIOR JUDGE CONCUR:

___________________________________ JOHN H. PEAY, JUDGE

___________________________________ THOMAS T. WOODALL, JU DGE