### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE Fe br ua ry 14, 200 6 S es sio n

ST A TE OF TE N N ES SE E v

. JO SE R OD R IG U EZ A N D EL A D IO

CA BAL LER O SA NC HEZ

Direc t Appeal from the Cr im inal Cou rt for Sum ner County

No. 215-2004 Jane Wheatc raft, Judge

No. M2005- 00951-CCA -R3-C D - F iled Augu st 7, 2006

Th e de fe nd a nts , Jose Rod ri g ue z an d E la dio Ca ba lle ro Sa nc he z, w e re c onvi cted o f c on sp ir a c y to possess marijuana wi t h i n t en t t o sell or deliver , a Class A fe lony . See Te nn. Code Ann. § 39-17- 417(j)(13) (2003). The trial court sen t en ce d ea ch defenda nt to twenty y ear s in the Depa

rtment of Cor re c tio n. I n t hi s appea l, the de fe nd a nt R od ri g ue z as se rt s ( 1) that th e e vid e nc e is i ns uf fi c ie nt t o support his conviction; (2) that the trial c ourt err ed by admitting evide nce of

his alleg ed prior ba d acts in violation of Tenne ssee Rule of E vidence 404(b); (3) that the t rial court err ed bypermitting

a state wi tne ss t o g ive imp ro pe r o pin ion te sti mon y ; and (4 ) that the tr ia l c ou rt e rr e d b y a dmi tti ng int o

e vid e nc e a

map c re a te d b y

a state wi tne ss. Th e de fe nd a nt S a nc he z as se rt s ( 1) that th e e vid e nc e is ins uf fi c ie nt t o s up po rt

his c on vic tio n; ( 2) that th e tr ia l c ou rt e rr e d b y a dmi tti ng evi den ce of hi s

a lle g e d p ri or

ba d a c ts i n v iol a tio n o f R ule 40 4( b) ; ( 3) that th e tr ial cou rt e rr e d b y a dmi tti ng int o evidenc e a document that was not provide d to the defe nse prior to trial; (4) that the trial court erre d by permitting a state witness to g ive improper opinion testimony ; and (5) that the trial court e rre d by admitting irre levant evide nce r eg arding his ownership of property in Me x ico. The judg ments of the trial court are aff

irmed.

Tenn. R. App . P . 3; Judgme nts of the Trial Court Affi rm ed

G AR Y R. W ADE , P.J
., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R ., and R OB E R T W. W EDEMEYER , J J ., joined.

G e o f f r e y Co s to n , F r a n k li n , T e n n e s s e e , f o r th e ap p e ll a n t, Jo s e Ro d r ig u e z.

Dale Q uillen and Kenne th Quillen, Nashville, Tenne ssee, f or t h e appellant, Eladio Caballero Sa n c h e z.

Pa ul G. Sum me rs , At torne y Ge ne ra l & Re po rt e r; Pr e sto n Shi pp , As sis ta nt At torn eyGen e ra l; L awr ence Whit ley , District Attorney Gene ral; and D ee G ay , Assistant District Attorney Gene ral, for the appe llee, State of Te nnessee

.-2- OP IN ION

On Dec ember

18, 2003, office rs of the 18th Judicial District and 20th J udicial District Drug Task For ces participa ted in a joint investig ation based upon a tip from a conf

idential informant. The informant told officers t h at a larg e quantity of marijuana

was be ing tr ansported into the g reater Davidson County

are a via Interstate 65 in a re d
, full-sized SUV. Office rs observe d the SUV, initiated a traf

fic stop, sea

rche d the vehicle , and discovere d 517 pounds of marijuana . The drive r, Rob e rt Re nn iso n, wa s a

rr e ste d a nd , d uring the e ns uin g inv e sti g a tio n, imp lic a te d th e de fe nd a nts in

a n i n t e r s t a t e d ru g c o n s p i r a c y.
At trial, Charles Campbe ll, an office r w i th the 18th J udicial District Drug Task F orce , testified that hours bef

ore the seizure of the i lleg al drug s, he attende d a brie fing of the 20th Judi cial Di stric t D ru g Ta sk

F or c e wh e re in it wa s disc los e d tha t a con fi de nti a l in fo rm a nt h a d r e po rt e d th a t a larg e amount of ma

rijuana w as being transporte d into the Nashville are a on I -65 in a re d, full-sized SUV. He r eca lled that during the session, there was no mention of e i t h er d efe ndant and that Joe Gar cia wa s identified as the primary suspect. Af

ter the briefing , the offic ers br oke into teams and beg an surve illance of

differ ent ar eas a long the inte rs t at e co rridor. O ffice r Campbell testified that shortly afte r beg inning surve illance, h e obser ved a r ed SUV on I -65 following a g ree n, two-toned Chev r o le t p ic k

- u p

. H e s tate d th a t h e in it iate d a s to p , ap p r o a c h e d th e d r iv e r ' s s id e , a n d
, u p on smelling marijuana
, asked the driver to step to the rea

r of the ve hicle. Of

fice r Campbell testified that when a K-9 off icer alerted to t h e p re s en ce of illeg al drug s, the vehicle was sea rche d and off

icer s di sco vere d blo c ks of

mari jua na takin g up the e nti re pa sse ng e r c omp art me nt. Of fi c e r C a mpb e ll

c on c e de d th a t th e of

fi c e rs didno t fi nd a ny ph y sic a l e vid e nc e c on ne c tin g e ith e r o f the de fe nd a nts to the drug s. The driver, Robert Rennison, w as place d under arr est and, beca use of incleme nt weathe r, th e v e h ic le w a s d r iv e n to a lo c a l tr u c k s to p to b e s e ar c h e d

. M e a n w h il e , e v e n though O ffice r Campbell lost si g ht of the g ree n truck, other office rs followed that vehicle.

Rennison, w ho was a witness for the state, testified tha t he had be g un transporting marijuana

a t th e ur g ing of

a frie ndso me tw o y e ars b efor e hi s arr e st. He e sti ma te d th a t he ha d ma de te n to fiftee n deliverie s during that time and had earned approximately $15,000 per de livery . He state d that he had met the def

endant Sanc hez approxim ately three months prior to his arrest whe n he made a two hundred pound marijuana delivery to N ashville. I t was his rec ollection that Sanchez and a nother Me xica n ma n to ok

the ve hic le c on ta ini ng the mari juana a nd" a ndbr ou g ht i t ba c k .

. . e mpt y wh ile [he ] wa ite d in the ma ll. " Ac c or din g to Re nn iso n, he me t th e de fe nd a nt R od ri g ue z in O de ssa , T e xas, when Rodrigue z ca me to ta ke possession of $150,000 from a sepa rate drug transac tion. Rennison stated that Rodrig uez was re sponsible for distributing the mone y to the other pa

rticipants in the drug

c on sp ir a c y . Re nn iso n, wh o h a d kno wn J oe Gar c ia sin c e 20 01 , te sti fi e d th a t G arc ia ' s r ole wa s to

a c c e pt d e liv e ry

of the mari jua na fr om R e nn iso n a ndthe n d ist ri bu te it.

Rennison expl ained that it was his under standing that the def endant Sanc hez, whom he knew as " Primo," wa s "in char g e of the operation .

. . in Nashville" and that the de fenda nt Rodrigue z "was just an interpre ter a nd he wa s in on some of the . . . distribution of t he funds." As to the Dec ember 2003 shipment, Rennison testified that he re ce i v ed a ca ll from "Padr o" instruc ting him to pick up-3-

a load of marijuana

in L ibera l, Kansas a nd then transport it to Gallatin, wher e it would be picke d up by J oe Ga rcia . He r eca lled that J oe Ga rcia direc ted him to drive to the Holiday I nn in Goodlettsvill e, wher e J oe Gar cia, J udy Gar cia, Sanc hez, and Rodrig uez, were waiting in a g ree n truck. Rennison testified t hat he pulled along side the t ruck and spoke with J oe Ga rcia , who then spoke to Sanc hez in Spanish. Rennison, who did not speak Spanish, stated t hat neither Sanchez nor Rodrig uez spoke Eng lish. According to Rennison, J oe Ga rcia direc ted him to follow the four of t hem to the location wher e the tra nsaction wa s to occur . He r emember ed that he f ollowed them onto I -65 and w as stopped by

police a short time later. Rennison ac knowledg ed that in exchang e for his cooperation and his testimony

at trial, he ha d been of

fer ed a ple a ag ree ment to serve te n y ear s at 30%.

During cross-e x amination, Rennison conce ded th at h e did not mention either of the de fe nd a nts in his ini tia l state me nts to the po lic e

. He a lso a dmi tte d th a t heha d c on du c te d a ll o f h is business with J oe Ga

rcia and had ne ver spoken with e ither of the de fenda nts. He ac knowledg ed that his ag ree ment was to pick up the ma rijuana f rom Padro and de liver it to Garc ia.

J ody Starks, a Drug Task Force office r, t estified that a conf idential informant had pr ovided information that " sever al hundre d pounds of marijuana had bee n distributed to the Nashville ar ea" and t h at "J oe Ga

rcia would be re sponsible for re ceiving at least pa rt of that shipment." Offic er Starks rec alled that the informant had indi cate d that Gar cia would be traveling in a g ree n Chevrolet pick-up truck. The off

icer testified that he be g an surve illance of the Gar cia ve hicle in the par king lot of a McDona ld's in G oodlettsvill e and f ollowed it to a Boot Corra l store, wher e a w oman and two men g ot out of the vehicle
, enter ed the store, and returne d to their vehicle a short time later . Offic er Starks stated that he f

ollowed them to the entra nce of a Holiday

I nn, wher e the ve hicle pulled along side a red Suburban. He testified that afte r a few minutes, the g ree n truck followed t h e red Suburban onto the interstate and then took the lea d. Offic er Starks state d that when he alerted other office rs stationed along the interstate, they stopped the Suburban for a traff ic violation. Accor ding to the office r, a K -9 ale rted on the Suburba n, the vehicle was sea rche d, and off

icer s discovere d a larg e amount of ma

rijuana. O ffice r Starks stated that be cause th e we at h er w as bad, he drove the Suburban to a near

by truck stop f

or a more thoroug h sear ch. During cross-e x amination, Of fi cer Starks acknowl edged that the confide ntial informant had g iven no information about e ither of the de fe nd a nts

.

J udy Gar cia, also a state witness, testified that he r brother -in-law, Joe Gar cia, a nd his wife, Na nc y , a sk e d h e r t o d ri ve the m to the Na sh vil le a ir po rt , w he re the y

pic ke d u p th e tw o d e fe nd a nts

. Ms. Ga rc ia state d tha t she the n dro ve to a mote l in Riv e rg a te wh e re the de fe nd a nts stay e d o ve rn ig ht. She rec alled that she, J oe Gar cia, and Nanc y Gar cia stay ed overnig ht at the residenc e of Rocky L ind and that on the f

ollowing da y , she drove J oe Ga rcia to m eet the de fenda nts and take the m to a Knig ht's Inn. After

they rente d a room, she then drove the men to a McDona ld's, wher e she ate at a sepa rate table while the thr ee me n talked. Ms. Gar cia testified that from there , they went to a "c owboy store" wher e they "a ll g ot out of the vehicle, went in the re,

. . . looked around

. . . [t ]hen J oe went outside and [she] ended up g oing out. And then [J oe] w as on the phone, and he

. . . asked [her] to go ba ck inside and te ll [ the defendants] to let' s g o." She then drove the men to the Holiday I nn, wher e they

met Rennison. Accor ding to Ms. Ga rcia , J oe Ga

rcia asked Rennison " how much" and-4-

Re nn iso n r e sp on de d th a t he didno t know

. She re c a lle d tha t J oe Ga rc ia the n inst

ru c te d Re nn iso n to follow them as they

returne d to the interstate. Ms. Gar cia stated that J oe Ga rcia ag ree d to pay

her $1000 to drive him a nd the two def endants to Cottontown. W hile on the interstate, she noticed that Rennison, who had b een following the m, was stopped by police. Ms. Gar cia testified that at that point, the defe ndants started " talking . . . r eal f ast to eac h other " and appea red " shaken up." She

r e c a ll e d th a t b o thJo e Gar cia a n d Ro d r ig u e z t o ldh e r

to "ju s t k e e p g o in g " a n d " g e t o f f a t th e n e xt exit ."

Ms. Garc ia t estified that she then returne d to the defe ndants' room at the Knig ht's Inn, wher e Joe G arc ia , a ft e r c omm un ic a tin g wi th Re nn iso n b y te le ph on e , d ir e c te d h e r t o d ri ve him ba c k to Roc ky L ind ' s a pa rt me nt. She re c a lle d th a t th e y we re sto pp e d b y

po lic e on the way

a ndarr e ste d. Ms. Gar cia, who f

ace d a possible sentenc e of twe nty -five y ear s, also acknow ledg ed that she ha d enter ed into a plea a g ree ment with the state. S he had ple d g uiltyto the char g ed off ense in e x chang e for

a sentenc e of e ight y ear s as an e specia lly mitigated of

fende r.
During cross-e x amination, Ms. Garc ia conced ed t h at she did not mention either of the defe ndants in her init ial statement t o police, ins tead telling t he authorities that she di d not know who the " oth e r g uy s" we re or

wh y the we re the re . Sh e a lso a c kn ow le dg e d th a t ne ith e r o f the de fe nd a nts spoke to Rennison directly and that neither had offe red her any compensa tion. Ms. Garc ia claimed that she did not suspect J oe Ga rcia of any type of illeg al ac tivityuntil she overhea rd his conver sation wi th R e nn iso n in the Ho lid a y I nn pa rking lot

.

Joe G arc ia te sti fi e d tha t on the da y be fo re his arr e st, the de fe nd a nt R od ri g ue z, w ho wa s h is brother- in-law, tele phoned him at his r esidenc e in I llinois , inquired whe ther if he would like to make some money

selling ma

rijuana, a nd asked G arc ia to meet him and a friend at the airport in Na shville. Ac c or din g to G arc ia , h e a sk e d his sis te r- in- la w, Judy Ga rc ia , to drive him

a ndhis wi fe to N a sh vil le to pick up the def

endants a t the airport a nd offe red he r $1000 for her service s. He state d that they drove the defe ndants to a motel in Goodlettsville wher e he rented the m a room. Ga rcia stated that on the following day , he and Judy Gar cia dr ove the defe ndants to a Knig ht's Inn, wher e he r ented a

ro om f or e a c h o f the m w ith mon e y pr ovid ed by S anch e z. A c c or din g to G arc ia , th e de fe nd a nts direc ted him to "[j] ust hang out" until the marijuana arrived.

Gar cia testified that his a g ree ment with the defe ndants require d him to "se e if he could make some money

off of [t he marijuana ] as soon as possible." He stated that the def endants did not reve al the so ur c e of

the mari jua na bu t di d s a y

that Ro be rt

Re nn iso n w ou ld b e tr a ns po rt ing the dr ug s to Na sh vil le . G arc ia

c on fi rm e d th a t he int e nd e d to se ll the mari juana fo r $ 60 0 p e r p ou nda nd that a man named " Donny " ha d alre ady ag ree d to purcha se five pounds for $3000 which would financ e the defe ndants' return trip. Gar cia acknowledg ed that he planned to take the marijuana to "D onny

. . . to g e t it of f the hig hw a y " a ndthe n d ivi de it i nto sma lle r p a c ka g e s.

Gar cia testif

i ed that he and Judy

Gar cia picke d up the def endants a t 2:30 p.m. and that Rodrigue z ins tructed hi m t o t elephone Rennison to establish a meeting point. He stated that they the n d ro ve to a

bo ot s tor e a nd , late r, to a Ho lid a y I nn , whe re the y me t Ren nis on in the pa rking lot

.-5-

Ac c or din g to G arc ia , Re nn iso n a sk e d f or mon e y to r e nt a ro om andSa nc he z g a ve him $8 0. Ga rc ia stated that whe n he aske d Rennison how much marijuana he had, Re nnison indicated that he did not know but said, " I t's too much in he re. I need y ou to ge t this st uff out of my truck." Gar cia r eca lled
t h at wh en t h e d ef

en d an t s as k ed ab o u ta p l ac e t o i n v en t o ryt h e d ru gs , h e s u gges t ed t h ey go t o Do n n y 's house. He rec alled that Rennison followed the m from the H o l i d ay I nn onto the interstate, whe re Rennison was stopped by

police. Ac cording to Garc ia, at that point the defe ndant Sanchez re marke d that he w an t ed t o get out of the a rea as soon as possible. He described Rodrig uez as " scar ed." Gar cia state d that he dire cted JudyGar cia to the Knig ht's Inn, wher e Sanche z asked him to telephone Rennison. Accor ding to Garc ia, R ennison claimed that he had only been issued a traffic c itation and then r el ea s ed . Gar cia testified that he and JudyGar cia then le ft the two def endants a t the motel befor e being stopped by

the police. Gar cia acknowledg ed that he had e ntere d into a plea a g ree ment with the state whe reby

he had r ece ived a twe lve-y ear sentenc e in e x chang e for his ple a to the char g ed offe nse.
During cross-e x amination, Gar cia a dmitted that in their first telephone c onversation, Rod ri g ue z state d th a t he ne e de d h e lp l oo kin g fo r w or k. Ga rc ia a lso a dmi tte d th a t he ha d p re vio us ly

c omm itt e d p e rj ury

du ri ng a jury -o ut he ari ng , e xpla ini ng that he wa s ne rv ou s. Whe n c on fr on te d w ith his ini tia l st a te me nt t o p oli c e , w hic h c on ta ineda nu mbe r o f s ta te me nts inc on sis te nt w ith his testimonyat trial, Ga

rcia stated that he "

just [ did] n 't k now how to write a nd rea d that g ood." H e claimed that he had simply told the office r " what he wanted to he ar." Gar cia conce ded that he had lied about t he number of t imes he had met Rennison and admitted having rec eived f our marijuana sh ip men ts fro m Ren ni so n in th e pas t. He ackno wl edged th at he had been s ell in g mari ju ana f or "a fe w y e ars " a nde xpla ine d th a t hi s u su a l pr a c tic e wa s to bu y se ve ra l hu nd re d p ou nd s a nd the n se ll i t in one ounce packa g es. He testified t hat he had never purchase d five hundred pounds befor e and that he fe lt that that amount was " too much."

J ames McWrig ht, D irec tor of the 20th Judicial District Drug Task F orce , corr oborate d the testimonyof the other

offi ce rs re g arding the surveillanc e of the two vehicles prior to the stop of R en n i s o n 's v eh i cl e. He t es t i fi ed t h at h e c o n t i n u ed s u rv ei l l an ce o f G ar ci a's v eh i cl e a ft erR en n i s o n 's vehicle w as st o p p ed an d followed it to the Knig ht's Inn. He state d that all four oc cupants of the vehicle e ntere d a room a t the Knig ht's Inn and that shortly there afte r, Joe and J udy

Gar cia r eturne d to the vehicle and left. Offic er McWright testified that he stay ed at the Knight' s I nn and watched the de fe nd a nt' s r oo m, a wa ite d the arriva l of a Spa nis h s pe akin g of

fi c e r, a ndthe n p la c e d th e de fe nd a nts

un de r a rr e st. He de sc ri be d th e tw o d e fe nd a nts , e a c h o f w ho m c on se nte d to a se arc h o f the ir

ro om, as coope rative. H e conf

irmed that no drug s, money , or g uns were found in their possession.

Michae l McL err an of the 18th J udici al Di strict Drug Task F orce , who proc essed the defe ndants and their pe rsonal prope rty , testified that Rodrigue z indi cate d that he wa s from Midland, Te xas, a ndwa s u ne mpl oy e d a t th e tim e of his arr e st. Of

fi c e r M c L e rr a n s ta te d that Sa nc he z al so indicated a

Midland addre ss and claimed that he was e mploy ed as a barte nder.

Gre g Bunc h, Assistant Director of the 18th J udicial Dis trict Drug Task F orce , testified that

as a r esult of information obtained f rom the conf

idential informant, he a ssembled a joint-6-

investiga t ion of fiftee n office rs from the 18th a nd 20th Districts. Accor ding to Of fice r B unch, he

arr ested Rennison and the n asked him to place sever al t el ep h o n e ca l ls to J oe Ga rcia . The off

icer testified that base d on the content of those conve rsations, a d ec i s i o n was made to place the defe ndants and the G arc ias under a rre st. Office r Bu n ch stated that he interview ed ea ch of the

s u s p ec t s an d i n v en t o ri ed t h e c o n t en t s o f t h e d ef en d an t s ' wa l l et s an d l u ggage , d i s co v er i n g b agga ge tag s i n d i ca t i n g flig hts originating in Houston and e nding in Na shville. He stated that e ach of the defe ndants had two re turn plane ticke ts with differe nt addre sses and phone numbers. Of fice r B unch also found a c ard w ith Rennison's ce llular telephone number i n Sanchez' s wallet and discovere d a

c ardwi th thr e e te le ph on e nu mbe rs fo r Joe Ga rc ia in R od ri g ue z' s w a lle t.

Offic er B unch, who testified that he had participa ted in approximately 1500 controlled drug buy s, expl ained that the g oi n g ra t e fo r marijuana was de pendant upon the ty pe of ma rijuana. H e described the marijuana rec overe d in this case as "Me x ican pot," which ty pically sold for $100 an ounce. H e stated that "Me x ican marijuana" was "hig hly compre ssed" so as t o be shipped a cross the border . Offic er Bunc h testified that he had ne ver be en involved in a dr ug transac tion involvi ng more than five hundred pounds of marijuana wher e two individuals who wer e "not associate d with the deal" wer e pre sent. He e x plained that it was " unhear d o f" b ec au s e the a ctivity is "totally

illega l." Offic er B unch lea

rned during a bond hearing that Sanchez had admitted owner ship of a 1000-he ctar e (2400 ac re) ranc h i n C o y am e, Mexi co. The office r pre pare d and pre sented into evidenc e a ma p showing the re lative location of Coy ame, Me x ico; L ibera l, Kansas; and G oodlettsvill e.

D u ri n g c r o s s

- e xa

m i n at i o n , O f

fi c e r B un c h c on c e de d th a t othe r b us ine ss c ard s u nr e la te d to thi s

case wer e a ls o d is c o v e r e d in e a c h o f th e d e f e n d a n ts ' w a ll e ts

. H e a ls o a d mi tt e d th a t c e ll phone

rec ords est ab l ished that Rennison had not ca lled Sanchez at any time and had not communicated with any one other than J oe Garcia during the offense. He concede d that Rodrigue z had neve r bee n

arr ested for

a d ru g cr i m e. He a cknowledg ed that " Mexi can pot" could be g rown a ny wher e and

a dmi tte d that he ha d no ide a of the orig in of the dr ug s se ize d fr om Re nn iso n. Th e of fi cer also acknow ledg ed that all but one of the ba g s in which the marijuana was pa cked ha d Eng lish writing on the front. He conce ded that while it was his suspi cion that the marijuana had c ome from Sa nc he z' s r a nc h, he ha d no pro of to sup po rt that vi e w. Of

fi c e r B un c h a dmi tte d th a t th e Dr ug Ta sk F or c e didno t ha ve a ny

pr ior int e lli gence con cern ing e ith e r o f the de fe nd a nts a nde xpre sse d f ull

awa rene ss that the targ et of the inve stigation was J oe Ga rcia

. Yvonne Rodrig uez, the wife of the def endant Rodrig uez, testified as a defe nse witness. She
state d th at sh e ha d b e e n ma rrie d to Rod ri g ue z fo r t we nty -t wo y e ars a ndha d mana g e d th e fa mil y financ es during that entire time. Ms. Rodrig uez asserte d that her husba nd had only a fifth -gr ade

e du c a tio n a nddid no t " kn ow ho w to e ve n fi ll ou t a c he c k. " She te sti fi e d that he r h us ba ndwa s a U. S. citizen, spoke very

littl e Eng lish, h ad s o m e i n come f rom a re tirement plan a t a pre vious job, and

wo rk ed d o i n g " a l i t t l e b i to f e v er y t h i n g, " i n cl u d i n g co n s tru ct i o n , m i n i n g, an d tru ckd ri v i n g. Acc ording to Ms. Rodriguez, it had become m ore difficult for him to find work in t he months prior to hi s arr e s t a n d th e f

a mi ly w a s e xp e r ie n c in g f

in a n c ia l t r o u b le

. Sh e te s ti f

ie d th a t h e w o rk ed

oc c a sio na lly la y ing c arp e t and ins ta lli ng c abin e ts but ha d to be hom e by 2:0 0 p .m. to p ic k u p th e ir g randc hildren fr om school. She stated t hat i t would have been impossible for he r husband to have-7-

trave led out of the state in the two y ear s prio r t o h i s ar re s t beca use of the f

amily ' s financia l dif fi c ult ie s a ndbe c a us e he ha d to take c are of the ir grandc hi ldr e n w he n th e y we re no t in sc ho ol. Acc ording to Ms. Rodrigue z, her husband had asked her brother, J oe Gar cia, to help him g et a job

wo rk i n g construction in the Na shville area . She stated that they chose a time near

Christmas for Rod ri g ue z to l oo k f

or a job be c a us e " a nytim e aro un d Ch ri stm a sti me , y ou ha ve a lot of Spa nis h people that g o back into Mexico, and there ' s a lot of vac ancie s."

During cross-e x amination, Ms. Rodrigue z admitt ed that S anche z was a friend to he r husband but claimed that she did not otherw ise know anything a bout him. S he could not e x plain why Sanchez was trave ling with he r husband to Nashville and a cknowledg ed that the two ha d never been on a trip tog ether

prior to their a

rre st. Ms. Rodriguez testified that " Primo," tra n s lated litera lly as "c ousin," wa s "a

common name that e very body in the S panish National uses to any body as friends."

Th e de fe nd a nt R od ri g ue z te sti fi e d o n h is o wn be ha lf that he ha d f

ive y e ars of

e du c a tio n in Mexi co and w as able to speak only "simple" Eng lish. He stated that during the 1990s he wor ked at Ar c o Ch e mic a l Pla nt i n H ou sto n unti l the plant wa s shut do wn a ndthe n w or ke d at a " ro c k p la nt" in Terling ua " for quite a

while" until "things slowe d down." He r eca lled that he then went to work dri v i n g a d u m p t ruck f

or a f riend a nd later, w hen he w as unable to find work using the truck, he worke d in car

pentry and ca rpet installation. He state d that he had a ls o worke d driving heavy machinery

for r oad cr ews. Rodrig uez, who denied ha ving sold drug s on any occa sion, claimed that he c a me to N a sh vil le on ly be c a us e his wi fe ' s f

a mil y wa s th e re a nd" it s e e me d li ke a g oo d th ing to do beca use I didn't ha ve any m o n ey

. [ Ga rc i a] t old me he wa s g oing to he lp me out to ge t a job." Rodrigue z claimed that Sanchez ca me wi t h h i m to look for a job as w ell and that he and Sanchez switched hotels only

beca use the Knig ht's Inn was cheape r than the Comfort Inn. Rodrigue z contende d that when Rennison w as stopped by police he " didn't know w hat was g oing on and . . . [he] g ot mad" a nd asked Gar cia to ta ke him ba ck to the motel. He insisted that he never rea liz ed that Gar cia wa s involved in a drug transac tion. Rodrigue z confirmed that he ha d "a clea n rec ord" and had neve r bee n arr ested for a drug crime.

Du ri ng c ro ss-ex a min a tio n, Rod ri g ue z cl a ime d th a t he wa s u na wa re that G arc ia

liv e d in I llinois and asse rted that he believed Gar cia lived in N ashville. He c ontended that Ga rcia paid for his plane ticket to Na shville and stated tha t Sanchez had paid f or his own ticket. Rodrig uez claimed that he did not know Rennison and had n ev er called his c ellular tele phone. Rodrig uez confirmed that Gar cia stopped a nd spoke to " a g entleman" in a re d Suburban but insisted that he did not know who the man wa s.

S a n c h e z d i d n o tt e s t i f

y.

I. Ea c h o f the de fe nd a nts a sse rt s tha t the e vid e nc e wa s in su ff ic ie nt t o s up po rt

the c on vic tio ns

. On app e a l, o f course, the state is e nti tle d to the str on g e st l e g iti ma te vie w o f the e vid e nc e a nda ll

rea sonable infe renc es which mig ht be dra wn there from. State v

. C ab b age , 571 S.W .2d 832, 835 (Tenn. 1978)

. T h e cr edibilityof the witnesse s, the weig ht to be g iven their testimony , and the-8-

rec onciliation of conflicts in the proof are matters entrusted to the jury as the trier of fa ct. B yrg e v. Sta te , 5 75 S.W. 2d

29 2, 29 5 ( Te nn

. Cr im

. App . 1 97 8) . Wh e n th e su ff ic ie nc y of the e vid e nc e is

c ha lle ng e d, the re le va nt q ue sti on is w he the r, a ft e r r e vie wi ng the e vid e nc e in the lig ht m os t f a vo ra ble to the state, any

rational trier

of fa ct could have found the esse ntial elements of the c rime bey ond a

rea sonable doubt. Tenn. R. App. P. 13(e ); State v. Wil li ams , 657 S.W .2d 405, 410 (Tenn. 1983)

. B e c a us e a ve rd ic t of

g uil t r e mov e s th e pr e su mpt ionof inn oc e nc e a ndraise s a

pr e su mpt ion of

g uil t, the c on vic te d c ri min a l de fe nd a nt b e ars the bu rd e n o f s ho wi ng that th e e vid e nc e wa s le g a lly insufficient to sustain a g uiltyverdic t. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).

Whe re the e vid e nc e is e nti re ly c ir c ums ta nti a l, the jury

mu st fi nd th at the pr oo f i s n ot o nly consi s t en t wi th the g uilt of the acc used but inconsistent with his innocence. T here must be an evidentiary

basis upon which the jury can e x clude e very

other re asonable theory

or hy pothesis except that of g uilt. P ruitt v. St ate, 460 S.W.2d 385, 390 ( Tenn. Crim. App. 1970). The trial c ourt has the du ty to ch arg e the jury on the we ig ht andsig nif ic a nc e of c ir c ums ta nti a l e vid e nc e wh e n it is the on ly ba sis up on wh ic h th e state ' s c a se re sts . B ish op v. Sta te , 2 87 S.W. 2d49 , 5 2 ( Te nn . 1 95 6) . Like a ll other fa ct questions, the determination of whether all rea sonable theories or hy potheses ar e excluded by the evidenc e is a jury

question. State v. Tharpe
, 726 S.W .2d 896, 900 (Tenn. 1987) ; see Mar able, 313 S.W .2d at 451, 457 (Te nn. 1958).

The jury is gove rned by

four r ules when te sting the va lue of circumstantial evidenc e: (1) T he evidenc e should be a cted upon with ca ution; (2) all of t he essential fac ts must be consistent with the hypothesis of g uilt; (3) the fac ts must exclude every other reasona ble t heory except that of g uilt; and (4) the f acts must e stablish suc h a certainty of g uilt as to c onvince bey ond a re asonable doubt that the def endant is the pe rpetrator of the c rime. Mar able, 313 S.W.2d at 456.

Th e de fe nd a nts sp e c if

ic a lly c on te ndthat th e e vid e nc e wa s in su ff ic ie nt to s up po rt

the ir

c on vic tio ns be c a us e it w a s b a se d u po n the un c or ro bo rate d te sti mon y

of a c c omp lic e s. I t is we ll

se ttl e d th a t a

de fe nd a nt c a nn ot b e c on vic te d u po n th e un c or ro borat ed test imo ny

of a c c omp lic e s. Sherrill v. State, 321 S.W .2d 811, 814-15 (Te nn. 1959); Prince v. State, 529 S.W.2d 729, 732 (Tenn. Cr im. Ap p. 19 75 ). " An a c c omp lic e is de fi ne d to be a pe rs on wh o kno wi ng ly , v olu nta ri ly , a ndwi th common intent with the principal off ender , unites in the commission of a crime." C l ap p v . State, 30 S.W

. 214, 216 (Tenn. 1894); see a lso L etner v. State, 512 S.W .2d 643, 647 (Tenn. Crim. App. 1974). A c ommon test is whether the a lleg ed ac complice c ould have be en indi cted for the off ense. Sta te v. Pe rkins on , 86 7 S.W. 2d 1, 7 ( Te nn . Crim. Ap p. 19 92 ). Th e ru le is that " the re sh ou ld b e so me fa c t te sti fi e d to e nti re ly ind e pe nd e nt of the a c c omp lic e ' s te sti mon y , wh ic h, take n by its e lf, le a ds to the infer ence , not only that a crime has bee n committed, but that the defe ndant is impli cate d in it." State v. Fowle r, 373 S.W.2d 460, 463 (Tenn. 1963) (c iting Clapp, 30 S.W. at 216; S herrill, 321 S.W .2d at 814-15; Ga

rton v. State, 332 S.W .2d 169, 173 (1 9 60)). This re quirement is met if the

corr oborative e vidence fairly and leg itimately tends to connec t the acc used with the commission of the crime char g ed. Mar shall v. State, 497 S.W .2d 761, 765-66 (Tenn. Crim. App. 1973). Onlyslight circ u ms tan c e s ar e r e q u ir e d to f u r n is h th e n e c e s s ar y

c o rr o b o r a ti o n

. G ar to n , 3 3 2 S. W. 2 d a t 1 7 5. Acc omplices, howeve r, cannot corr oborate one another

. State v. Gre en, 915 S.W .2d 827, 831 (Tenn. Crim. App. 1995).-9-

The de fenda nts were convicted of conspirac y

to possess with intent to sell or deliver more tha n thr e e hu nd re d pou nd s of mari jua na

. Te nn e sse e Cod e An no ta te d s e c tio n 3 9- 12 -1 03 pr ov ide s, in pertinent part, as follows

The off ense of conspirac y

is committ ed if two (2) or more pe ople, ea ch having the culpable mental state required for the offense which is the object of the c onspiracy and e a c h a c ti n g f

o r th e p u rp o s e o f p r o mo ti n g o r f a c il it a ti n g c o mm is s ion of an offe nse, ag ree that one (1) or more of them will eng ag e in conduct whic h constitutes such off ense.

Te nn . Co de An n. § 39- 12 -1 03 (a ) ( 20 03 ). " I t is a n o ff e ns e fo r a de fe nd a nt t o kno wi ng ly

. . . [p]o sse ss a contr olled substance with intent to ma nufac ture, deliver or sell such controlled substanc e." Tenn. Code Ann. § 39-17- 417(a) (2003).

Th e state con cedes tha t in thi s c a se , Re nn iso n, Joe G arc ia , a ndJudy Ga rc ia we re a ll

a c c omp lic e s b ut it ar g ue s tha t the ir te sti mon y wa s suf fi c ie ntl y c or

ro bo rate d by oth e r pr oo f at tria l. The rec ord, of course , establishes that ea ch of the acc omplices testified that both defe ndants wer e involved in the conspiracy t o t ra n sport and sell the marijuana. Theoffice rs conf irmed the defe ndants' prese nce in the G arc ia vehicle during the rendevous wit h Rennison in the parking lot of the Holiday

I nn. I n addition, plane tickets found in the defendants' possession established that they had indee d flown into Nashville on the day prior to their a

rre st. Further , eac h defe ndant possessed
tw o s e pa rate re turn ti c ke ts b e ari ng dif fe re nt h ome add res se s. Sur ve ill a nc e of the de fe nd a nts a lso confirme d that they

wer e staying at the Knig ht's In n

. R en n i s o n 's testimonyabout the prior dr ug t r a n s a c t i o n s i n v o l v i n g e a c h o f t h e d e f e n d a n t s p r o v i d e d p r o o f

o f t h e i r i n t e n ti n t h i s i n s t a n c e

. In

a dd iti on , w hil e the de fe nd a nts c la ime d tha t the y did no t know Re nn iso n, Sa nc he z ha d a c ardwi th his cellular tele phone number written on it. Rodrigue z had possession of t h ree of Ga rcia ' s phone numb e r s

. U n d e r th e s e c ir c u ms ta n c e s , it is o u r v ie w th a t th e te s ti mo n y o f th e a c c o mp lices wa s

su ff ic ie nt t o s up po rt

the de fe nd a nts ' c on vic tio ns

.

II. Eac h of the d ef

en dants asserts that the trial court e rre d by permitting Rennison to testify about their prior

bad ac ts in viol ation of Tenne ssee Rule of Evidenc e 404(b) . Sanchez complains that Rennison should not have bee n allowed to testify that he had de livered two hundr ed pounds of marijuana to him in Nashville several mont hs prior to the charg ed offense. Rodrigue z contends that Re nn iso n s ho uldno t ha ve be e n pe rm itt e d to tes tif y that he ha d pe rs on a lly

de liv e re d $ 15 0, 00 0 to him in Odessa, T ex as , as p roceeds fr om a drug transac tion. The state submits that the evidence was

a dmi ssi ble to e sta

bli sh the de fe nd a nts ' int e nt t o p art ic ipate in the c on sp ir a c y a ndto r e bu t th e ir

c la im that they wer e " mere ly

prese nt" during the transac tion.

Te nn e sse e Rul e of

Ev ide nc e 40 4( b) pr ov ide s a s f oll ow s:

Charac ter e vidence not admissible to prove conduct; exceptions; other crimes. -- ( a) Charac ter Evidenc e Ge nera lly . -- Evide nce of a per son' s char acte r or a tr ait of-10-

char acte r is not admissible for t he purpose of proving ac tion in conformity with the

c ha ra c te r o r t ra it o n a pa rt ic ula r o c c a sio n, e xce pt:

. . . . (b ) O the r Cr im es, Wro ng s, or Ac ts. -- Ev ide nc e of

oth e r c ri me s, wr on g s, or a c ts i s

no t a dmi ssi ble to pr ov e the c ha ra c te r o f a

pe rs on in o rd e r t o s ho w a c tio n in conformitywith the char acte r t ra i t. I t may , howeve r, be a dmissibl e for other purposes. The conditions which must be satisfied bef ore a llowing such evidenc e ar e: (1) The court upon re quest must hold a hearing outside the jury ' s prese nce; (2) The court must determine that a m at er i al issue exis ts other than conduc t conforming with a c hara cter trait and must upon req u es t s t at e on the recor d the materia l issue, the ruling , and the r easons f or admitting the evidenc e; (3) The court must find proof of the other c rime, wrong , or ac t t o b e cl ea r and convincing ; and (4) The court must e x clude the evidenc e if its probative value is outwe ighe d by the dang er of unfair pr ejudice.

Tenn. R. Evid. 404(b). A fourth pre requisite to admissibilit y is that the trial court find by clea r and convincing evidenc e that the defendant commit ted t he other crimes or bad acts. State v. DuB ose, 953 S.W .2d 649, 654 (Tenn. 1997)

. Rule 404 was patterned in g reat measure on State v. Parton, 694 S.W .2d 299 (Tenn. 1985)
, wh e re in o ur

su pr e me c ou rt

ru le d th a t e vid e nc e of oth e r c ri me s is g e ne ra lly ina dmi ssi ble . T he te rm s of thi s rule e sta

bli sh that c ha

ra c te r e vid e nc e c a nn ot b e us e d to pr ov e that a per so n h a s a pr op e ns ity to commit a crime. Tenn. R. Evid. 404(b); S tate v. Adkisson, 899 S.W .2d 626 (Tenn. Crim. App. 19 94 ). Mo st auth or iti e s su g g e st tha t tria l c ou rt s ta ke a " re stric tiv e app ro a c h o f 4 04 (b ) .

. . be c a us e

' other a ct' evidenc e ca

rries a signific ant potential for unfairly influencing a jury ." Neil P. Cohen et al., Tenne ssee L aw of

Evidence § 4.04[8] [e] (4th ed. 2000). T hat per haps best explain s the
tr a dit ion a l po stu re of

the c ou rt s th a t a ny

te sti mon y

of oth e r b a d a c ts b y

a de fe nd a nt i s n ot u su a lly admissible when used a s substantive evidenc e of guilt of the c rime on trial. Parton, 694 S.W.2d at 302-03. I n those instances w here the other c onduct or a cts are s i m i l ar t o t h e crimes on trial, the potential for a prejudicia l r esult increa ses. State v. B ordis, 905 S.W .2d 214, 232 (Tenn. Crim. App. 1995).

Unlike the Fe dera l rule bar ring such evide nce, our

rule doe s not specifica lly enumer ate the purposes for which such evidenc e may be offe red. State v. Gilliland, 22 S.W .3d 26 6
, 2 7 1 (T en n. 20 00 ). Th e Ad vis ory

Com mis sio n s pe c if

ic a lly omi tte d s uc h a

lis t so that la wy e rs a ndjud g e s w ou ld

" ' us e c are in ide nti fy

ing the iss ue s to be a dd re sse d by the Rul e 40 4( b) e vid e nc e .' " I d. (q uo tin g Ne il P. Co he n e t a l., Te nn e sse e L a w o f E vid e nc e § 4 04 .6 , a t 169 n. 45 7 (3d e d. 19 95 )) . T he re fo re , in

e ve ry c a se in w hic h evi den c e of oth e r c ri me s, wr on g s, or a c ts i s o ff

e re d, thetr ia l c ou rt

sh ou ld

car efully scrutinize the rele vance of the e vidence and the r easons f or which it is being offe red. I d. Although Rule 404( b) does not e x plicitly list these exceptions, our courts have held that evidenc e of other c rimes may

be admissible to s h o w m otive, intent, guilty knowledg e, identity

of the defe ndant, absence of

mistake, and the e x istence of a common sche me or plan. See , e.g ., Collard-11-

v. State, 526 S.W .2d 112, 114 (Tenn. 1975); see also Cohen, supra § 4.04[8] (4th ed. 2000). Even if the cha lleng ed evide nce i s re l evant to an issue othe r than c hara cter , it must be excluded if the dang er of u n fa i r p re

j u dice outwe ighs the probative va lue of the othe r crime evidenc e. State v. Howell, 868 S

. W

. 2 d 2 3 8, 254 (Tenn. 1993) ; see a lso St ate v. Z ag orski, 701 S.W .2d 808 (Tenn. 19 85 ); Sta te v. Ta y lor , 6 69 S.W. 2d69 4 ( Te nn . Crim. Ap p. 19 83 ). " Th e da ng e r i s th a t e ve n if rele vant to a conte sted materia l issue, the ' other c rimes' evidenc e may be ac tually more in the nature of prohibited ' propensity evidenc e.' " State v. David Ky le Gilley , No. M2003-00499-CCA-R9-CD, slip op. at 15 (Tenn. Crim. App., at Na shville, Feb. 26, 2004)

.

I n this case, e ach d ef

endant objected to Rennison' s testimonyboth prior to and during the trial. The tria l court, which c onducted a hearing outside the prese nce of the jury as re quired by

the rule, c oncluded that the te stimonywas a dmissibl e:
The Court is g oing to a llow Mr. Rennison to testify . I don' t think that thi s is coming in for the pur

pose of pr oving c hara cter . We've had an o u t o f j u ry hearing. I

think that a ma te ri a l is su e do e s e xist o the r tha n co nd uc t con fo rm ing wi th the c ha ra c te r t rait, and that is the issue of the intent. And I t h i n k that the testimony of this defe ndant

c le arl y sp e aks to the iss ue of

int e nt; that it

is c le ar andc on vin c ing ; and th a t it s pr ob a tiv e va lue ou tw e ig hs that of

. . . u nf a ir pr e jud ic e . So the Cou rt

is g oin g to pe rm it i t.

Be cause the t rial court complied wit h the requirements of Rule 404(b) , the question is whether there

was a n abuse of

discretion. See D uBose , 953 S.W .2d at 652.

Her e, the de fenda nts claimed that they had no pr i o r knowledge of the de al betwe en Joe Gar cia a nd Rennison, that they wer e unaw are that Rennison po s s es s ed drug s, and that they wer e "me rely prese nt" in Ga

rcia ' s vehicle during the time fra me allege d in the i ndictment. As indicated, the trial court ruled that Rennison' s testimony was admissi ble t o establish the def endants' intent. One le a din g tr e a tis e on the su bje c t pr ov ide s a s f oll ow s:

I nte nt i s ord ina

ri ly inf e rr e d fr om ev ide nc e of the de fe nd a nt' s ove ra ll pla n to c omm it such crimes or from proof of def endant' s motive. A relate d infere nce is the infe renc e that a pe rs on int e nd e d a c e rt a in re su lt if he or sh e ha d p re vio us ly a c te d in the sa me way and achieved the same result. This infere nce is strong er if the previous acts and results closely

rese mble those alleg ed in the instant ca se.
Cohen, supra, § 4

. 0 4[10] (4th ed. 2000) ( footnotes omitted). This court has pr eviously held that pr oo f tha t the de fe nd a nt wa s invo lve d in sel lin g dr ug s on a pri or oc c a sio n w a s a dmi ssi ble to e sta bli sh his int e nt to e ng a g e in the sa le of dr ug s d uring the c ha

rg e d o ff e ns e . Se e Sta te v. Sa mue l L . G idd e ns , No. M2002-00163-CCA-R3-CD (Tenn. Crim. App., at Na shville, Apr. 4, 2003); State v. Robert Way ne He rron, No. M2002-00951-CCA-R3-CD (Tenn. Crim. App., at Nashville, J an. 22, 2003);

see a ls o St a te v

. L it tl e , 8 5 4 S. W. 2 d 6 4 3
, 6 4 9 ( T e n n

. Crim

. A p p

. 1 9 9 2 ) ( e v id e n c e o f p r io r drug
tr a ns a c tio ns wa s a dmi ssi ble to s ho w i nte nt andto r e bu t de fe nd a nt' s con te nti on that he wa s " a vic tim-12-

of c ir c ums ta nc e " ); Sta te v. B e rn ardJer ome Jone s, No . M 20 00 -0 0018 -CCA -R 3- CD (T e nn . Crim. App. at Na shville, Oct. 20, 2000); State v. J ohnny Way ne Tillery , No. 01C01-950 6 -CC-00182 (Tenn. Crim. App., at Nashville, Mar . 30, 1998). Rennison testified that appr ox imately three months prior to the off

ense at issue, he had de livered two h u n d re d pounds of marijuana to Sanchez and another Mexi can in Na shville. He also testified that he met Rodrigue z in Odessa, Texas when Rodrigue z arrived to ac cept $150,000 f rom a prior drug transac tion. I n our view, this testimony was rele vant to establish the defendants' intent to participa te in the conspira cy and to re but the assertion that th e y we re me re ly

pr e se nt. F urthe r, the pr ob a tiv e va lue of thi s te sti mon y

wa s so g re a t a s to outweig h the dang er of

unfair pr ejudice.

Moreove r, while e ach of

the def endants c ontends that the evidence of the prior bad acts was not " clea r and convincing " be cause it was based on the testimonyof an a ccomplice , neither ha s cited

a ny a uth or ity fo r this pr op os iti on

. I t is we ll e sta bli sh e d th a t a n a c c us e d may no t be c on vic te d s ole ly upon the uncor

roborated testimony

of an a ccomplice . See, e.g ., State v. Caldwell, 977 S.W .2d 110, 114 (Tenn. Crim. App. 1997). The burden of proof require d for conviction, howeve r, is g reater than the " clea r and c onvincing ev idence " sta ndard r equire d by Rule 404(b). The clea

r and c onvincing evidenc e standard i s m et when the re is no serious or substantial doubt about the acc urac y of the conclusions dra wn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). As in d ic a te d
, th e tria l j u d g e , w h o s a w th e w it n e s s e s a n d h e ar d th e te s ti mo n y f ir s th a n d, conclude d that the evidenc e wa s clea r and c onvincing . Other tha n R en n i s o n' s status as an

acc omplice, the def

endants ha ve provide d no re as o n t o question this conclusion. This court has fo un d n o auth or ity

su g g e sti ng that c or

ro bo ratin g te sti mon y

is n e c e ssa

ry in this c on te xt. U nd e r the se circ umstance s , i t is our view that the tria l court did not err by permitting Rennison' s testimony

re g ard ing the pr ior

a c ts.

III

. Next, each of

the def endants a sserts that t h e t ri al court erre d by permitting O ffice r Gre g Bunc h to provide expert opinion testimonythat the marijuana seized was " Mexi can" marijuana and that individuals who were not involved in the cons pirac y would not be pre sent during a drug
transac tion involvi ng such a larg e amount of drug s. Wi th reg ard to Of fice r B unch' s testimonythat the mari jua na wa s " Me xica n, " the state su bmi ts that the de fe nd a nts wa ive d app e llate re vie w o f this issue by failing to lodg e a contempora neous objection. The state a lso asserts that neither statement qualified a s opinion evidence

.

As the state c orre ctly

points out, t he def

ense did not immediately object to the testimony at issue. The re cord e stablishes, h o weve r, that the de fense questioned the a dmissibi lityof the testimonyshortly

afte r it was off

ere d when the defe nse reque sted a jury -out hea ring in relation to the

o ff i ce r's o p i n i o n re gar d i n g t h e "m er e pr es en ce " of o b s er v er s at a t ra n s ac t i o n i n v o l v i n g s u ch a l ar ge

a mou nt o f d ru g s. Cur a tiv e ins truc tio ns we re at lea st p os sib le a t th a t po int . T he re c or d a lso

e stab l i s h e s t h a te a c h o f

t h e d e f e n d a n t s r a i s e d t h e i s s u e i n h i s m o t i o n f o r a n e w tr i a l

. U n d e r

t he se circ umstances, it is our view that wa iver doe s not a pply

. Moreove r, whether proper ly assig ned or

no t, this c ou rt

ma y , u nd e r p ro pe r c ir c ums ta nc e s c on side r pl ain e rr or up on the re c or d u nd e r R ule 52(b) of the Tenne ssee Rules of Criminal Proce dure. State v. O g le, 666 S.W.2d 58 (Tenn. 1984).-13-

B e fo re a n e rr or

ma y be so re c og nize d, it must be " plain" a nd mus t af fe c t a " su bs ta nti a l r ig ht" of the acc used. The word "pla in" is synony mous w ith " clea r" or equivalently "obviou s

. " U n ited States v. Olano, 507 U.S. 725, 732 (1993). Plain er ror is not mere ly

err or that is conspicuous, but espec ially eg reg ious error

that strikes at the fai rn es s , i nteg rity , or public re putation of judicial proce eding s. See S t ate v. W ooden, 658 S.W.2d 553, 559 (Tenn. Crim. App. 1983). I n State v. Adkisson, 899 S.W .2d 626, 639 (Tenn. Crim. App. 1994), thi s court def ined " substantial rig ht" a s a rig ht of " fundame ntal proportions in the indictment proce ss, a rig ht to the proof of e very element of the offe nse and

. . . constitutional in nature ." I n that case , this court established five fac tors to be

app lie d in de te rm ini ng wh e the r a n e rr or is p la in:

(a ) the re c or d mu st c le arl y e sta bli sh wh a t oc c ur

re d in the tr ia l c ou rt ; (b ) a c le ar a ndun e qu ivo c a l rule of la w m us t ha ve be e n b re a c he d; (c ) a su bs ta nti a l r ig ht o f the a c c us e d mu st h a ve be e n a dv e rs e ly a ff e c te d; (d) the a ccuse d [m ust not have wa ived] the issue for tac tical re asons; and (e) consideration of the err or is "ne cessa ry to do substantial just ice."

I d. at 641-42 (f

ootnotes omitt ed). Our supreme court char acte rized the Adkis son test as a "c lear and meaning ful standard" and emphasized that eac h of the five fac tors must be prese nt before an er ror qualifies as pla in error . State v. Smit h, 24 S.W .3d 274, 282-83 (Te nn. 2000).

Rul e 7 0 1 of the Te nnessee Rules of Evidence , which g overns opinion testimony by lay wi tne sse s, pr ov ide s in pe rt ine nt p art a s f oll ow s:

I f a w itness is not t esti fy i n g as an ex pert, the w itness's te stimonyin the form of opinions or infere nces is limited to those opinions or inferenc es which a re (1) r ationally

based on the perc eption of the witness a nd (2) he lpful to a clea

r understanding of the witness' s testimonyor the de termination of a f act in issue.

Tenn. R. Evid. 701(a)

. As our supre me court has observe d, the Advisory Commi ssion described the int e nt o f the ru le a s f

oll ow s:

Th e ru le rathe r sp e c if

ic a lly c ir c ums c ri be s the are a wh e re a la y wi tne ss c a n te sti fy

to opinions as opposed to f

acts. The Commi ssion be lieved that the instance s would be

ra re where a wi tn e ss c ou ld n ot c on ve y tho ug hts to the jury

by e nu me ratin g fa c ts, leaving it to the jurors to draw infe renc es. I n situations where a witness "c annot

re a dil y a ndwi th e qu a l a c c ur a c y

a nda de qu a c y " te sti fy

wi tho ut an opin ion , th e wi tne ss may state opinions requiring no expertise. Consequently , a lay witness may

testify that a per son was " drunk" or that a c ar w as trave lling " fast."

S t at e v. S p ar k s , 8 9 1 S

. W

. 2 d 6 0 7
, 6 1 4 (T en n

. 1 9 9 5 ) (c i t i n g T en n

. R

. E v i d

. 7 0 1
, Ad v i s o ryC o m m 'n Com me nt) . T e nn e sse e Rul e of Ev ide nc e 70 2, re la tin g to e xpe rt op ini on s, pr ov ide s a s f

oll ow s:-14-

I f sci enti fic, tec hnical, or othe r spec ialized knowledg e will substantially assist the
tr ie r o f f a c t to un de rs ta ndthe e vid e nc e or to d e te rm ine a

fa c t in iss ue , a

wi tne ss qualified a s an expert by

k n o wl ed ge, skill, ex perie nce, tr aining , or educ ation may testify in the form of a n opinion or otherwise.

Tenn. R. Evid. 702. This court has c oncluded that " lay opinion testim ony

under Rule 701 is lim ited to those observa tions of a lay witness that are not based on scie ntific, technic al or other specia liz ed kn ow le dg e wh ic h w ou ld qua lif y the wi tne ss as a n expe rt

un de r R ule 70 2. " Sta te v. Ti mothy Mu rr e ll, No. W2001-02279-CCA-R3-CD, slip op. at 8(Tenn. Crim. App., at J ackson, J uly 2, 2003) (c iting United States v. Conn, 297 F.3d 548, 553 (7th Cir. 2002))

.

He re , O ff ic e r B un c h d e sc ri be d the mari juana se ize d fr om R e nn iso n a s " Me xica n" be c a us e of its appea

ran ce , explaining that locally g rown marijuana, re fer

red to a s "B C bud" wa s "ve ry sp on g y " wh ile mari

jua na grown in Me xico a nd tr a ns po rt e d a c ro ss the bo rd e r w a s " hig hly compre ssed." Offic er B unch' s conclusion qualifies a s an expert opinion be cause it is base d upon the "spe cialized knowledg e" that he obtained as a drug enfor ceme nt of fice r. See Tenn. R. Evid

. 7 0 2; Murre ll, sli p op. at 8. I n conseque nce, the testimonymust complywith the require ments of Rule 702 in order to be admissible. Gener ally , the admission of expert testimonyis larg ely entrusted to the

so un d d isc re tio n o f the tr ia l cou rt

. Sta te v. B a lla rd , 855 S.W. 2d 55 7, 56 2 (T e nn . 199 3) . On a pp e a l, "t h e a b u s e o f d i s cr et i o n s t an d ar d co n t em p l at es t h at b ef o re re v er s al t h e r ec o rd m u s t s h o w t h at a j u d ge

' applied an inc orre ct leg al standar d, or re ache d a dec i s i o n wh i ch i s ag ainst logic or re asoning that

cause d an injustice to the par t y co mplaining.' " State v. Coley , 32 S.W .3d 831, 833 (Tenn. 2000) (quoting State v. Shirley , 6 S.W .3d 243, 247 (Tenn. 1999)); s ee also State v. Shuck, 953 S.W .2d 662, 669 (Tenn. 1997)

.

Offic e r B u n c h te s ti f

ie d th a t h e h a d p ar ti c ip a te d in o v e r o n e th o u s a n d c o n tr o ll e d drug purcha ses during his tenure a s a law e nforc ement off i ce r. He state d that in gathering information fr om e a c h o f tho se tr a ns a cti on s r e g ard ing the orig ins of the mari juana , h e ha d le arn e d th a t lo c a lly g ro w n ma

r ij u a n a a n d th a t g r o w n o u ts id e th is c o u n try , p ar ti c u la r ly in M e xic o , p o s s e s s d iffer ent ph y sic a l a ttribu te s. He of fe re d a de ta ile d e xpla natio n to the ju ry as to the dif fe re nc e s. Whil e

conce ding that he was not a horti cult urist, Office r B unch testified that the ma rijuana se ized from Rennison was consistent in appe ara nce to marijuana he ha d seized in pr evious transac tions which was of know n Mexi can origin.

W h i l e a close issue, it is our view that Off icer Bunc h' s opinion that the marijuana wa s

" Me xica n" did no t subs ta nti a lly a ssi st the tr ie r of fa c t. Th e re a l issu e wa s whe the r the de fe nd a nts

wer e participants in the conspiracy to distribute the five hundred pounds of m arijuana possessed by Rennison reg ardle ss of its place of orig in. Office r B un ch concede d that "Me x ican" was the te rm used to ref

er to ma rijuana that was compre ssed and did not ne cessa rily indicate its place of orig in. He a cknowledg ed that "Me x ican" marijuana could be g rown a ny wher e, conc eding that his use of the
term wa s g eneric.-15-

That Off icer Bunc h was una

ble to state with ce rtainty

that the marijuana

orig inated inM e xic o lessened the probative va lue of his opinion that the marijuana was " M ex i ca n

. " W hile eac h of the de fe nd a nts wa s of Me xica n a nc e stry , the on ly pr oo f at tria l w a s th a t bo th l ive d in Te xas at th e tim e of the of fe ns e . A s to the de fe nd a nt R od ri g ue z, th e pr oo f at tr ia l est abli sh e d tha t he ha d n ot l ive d in Mexi co since he was a child. Further, while the re w as proof that Sanchez owned a

ranc h in Mex ico, there was no evidenc e that he had eve r lived on the ranch. I n addition, there w as no proof that either of th e d e f e n d a n ts h a d a n y f

a mi ly ti e s in M e xic o a t th e ti me o f th e o f f e n s e

. B e c a u se ea ch of the defe n d an t s wa s of Mexican anc estry , there was potential for prejudice by

the use of the term "Me x ican marijuana." See Tenn. R. Evid. 403. I n any event, Of fice r B unch' s acknow ledg ment that the term "Mexican m arijuana " did not indicate that the contra band orig inated in Mexico mit igated the potential for pr ejudice.

I n our asse ssment, the phy sical appe ara nce of the m arijuana may have be en helpf ul to the jury i n d e t e r m i n i n g t h a t t h e m ar i j u a n a w a s p o r t ab l e , c o n s i s t e n t w i t h t h e s t a t e ' s t h e o r y o f t h e c o n s p i r a c y. The use of

the term " Mexi can," rathe r than " compre ssed" or some equa lly neutra l term, in light of he fac t that the defe ndants, while United States residents, wer e of Mexi can ance stry was pe rhaps

mor e pr e jud ic ia l th a n p ro bativ e . It is ou r a lso vie w, ho we ve r, that th e e rr or qu a lif ie s a s h arm le ss, having had no ef

fec t on the verdic t. See Tenn. R

. Ap p

. P . 36(b); Te nn. R. Crim. P . 52(a) As indicated, Of

fice r B unch acknow ledg ed that he could not state with certainty that the marijuana

was g rown in Me x ico and knew of no connec tion between the marijuana and the Sanc hez ranc h. Further, that th e e rr or

wa s h arm le ss, in c on te xt, su g g e sts that c on sid e ratio n of the iss ue is " no t ne c e ssa ry to do substantial justi ce" and, ther efor e, not plainly err oneous. Adkisson, 899 S.W .2d at 642.

Rodrigue z also complains that the trial court erre d by permitting O ffice r B unch to g ive expert testimonythat he had ne ver know n of a transac tion involving such a larg e amount of drug s where observe rs wer e " mere ly

prese nt" a nd not participants in t he il leg al activiti es. He contends that the testimo n y d id n o t me e t th e r e q u ir e me n ts o f a d mi s s io n u n d e r St a te v

. Sm ith
, 4 2 S. W. 3 d 101, 113 (Tenn. Crim. App. 2000) , and McD aniel v. CSX Transportation I nc., 955 S.W.2d 257, 264 (1997). The state submits that the offic er' s testimonywas not opi nion evidenc e but was rather a statement of a fa c t.

At trial, the prose cutor a s k ed Of fi cer Bunc h whether

he had " ever

seen a situation where conspirator s bring along any one that' s not involved in the conspirac y ." D efe nse counse l objected, arg ui n g that the question demande d "opinion that would re quire the w itness to be qualified a s an expert." The prosecutor responded t hat he believed Bunc h was qualified as an e x pert a nd the trial
court ove rruled the objection, observing , "H e' s had a long car eer in working with narc otics." The prosec utor asked the question ag ain and Of fice r Bunc h responde d, "N o, I ' ve neve r hea rd of one . I ' ve

n ev ers ee n o n e. I t 's u n h ea rd o f. I m ea n , j u s t , i f y o u t h i n k

ab o u tt h e p ro ce s s o f w h at y o u 're d o i n g, it' s to ta lly ill e g a l, andfo r s ome on e to b ri ng tw o in div idu a ls w ho are no t a ssociat ed with the de a l, absolutely

not."-16-

Rodrigue z contends that this testi mony was not admissible bec ause "the underly ing f acts or da ta up on wh ic h" it wa s bas e d we re no t tru stw orthy . Se e Smith, 42 S.W. 3da t 11 3. Te nn e sse e Rul e

o f E v i d e n c e 7 0 3 f

o c u s e s o n t h e r e l i ab i l i t y o f e x p e r to p i n i o n t e s t i m o n y:

The fa cts or data

in the particula

r ca se upon which a n expert bases an opinion or infere nce may

be those pe rce ived by

or made known to the expert at or be fore the he ari ng . I f o f a

ty pe re a so na

bly re lie d u po n b y

e xpe rt s in the part ic ula

r f ie ld i n form i n g o p i n ions or infere nces upon the subject, the fa cts or data need not be admissible in evidence . The court shall disallow testimony in the form of an opinion

or inf e re nc e if the un de rl y ing fa c ts o r d a ta ind ic a te la c k o f t

ru stw orthi ne ss.

Tenn. R. Evid. 703.

I n McD a nie l, our su pr e me c ou rt c on c lud e d tha t to de te rm ine " the sta nd ardof a dmi ssi bil ity of scientific evidenc e re quires an analy sis of the unique lang uag e found in Rules 702 and 703 of the Tenne ssee Rules of Evide nce." 955 S.W .2d at 264. Our high c ourt observe d that Rule 702 require s that the evidenc e " substantially assist the trier of f

act," while the fe dera l rule requires onlythat the evidenc e " assist the trier of f act." I d. The c ourt conc luded that the probative forc e of e x pert testimonymust be strong er unde r the state sta ndard tha n un der the fede ral rule s. I d. Rule 703 provides that trial c ourts "' shall disallow testimonyin the form of a n o p i n i o n o r i n ference if the underly ing fac ts or data indicate a lac k of trustworthiness.' " I d. (quoting Tenn. R. Evid. 703). Eve n if e xpe rt te sti mon y

te nd s to pr ov ide su bs ta nti a l a ssi sta nc e to the jury , t he test imo ny is a dmi ssi ble only if it is based upon reliable fac ts or data. Shuck, 953 S.W.2d at 668.

I n this case, Of

fice r B unch' s testimonywas ba sed upon his observations as a law e nforc ement office r and upon the statements made by individuals he had arr ested during drug transac tions. He

a dmi tte d th a t in div idu a ls i nv olv e d in ill e g a l dr ug tr a ns a c tio ns of

te n li e to the po lic e a ndno te d th a t, "a lie is r eally as g ood as the truth

. . . as far as [he w as] c oncerned." Whil e a ck n o wl ed gi n g that

so m e o f t h o s e h e h a d arr e s t e d a t d ru g tr a n s a c t i o n s i n t h e p a s t h a d c l a i m e d t h a t t h e y w e re me re ly prese nt, he explained that he simply did not believe them. He conce ded, ther efor e, that he ha d "no way of knowing " the truthfulness of the state ments upon which he ha d based his opinion.

Under these c ircumstance s, it is our view that the state fa iled to establish that the fac ts upon which Officer Bunc h' s testimony was based were reliable. I n conseque nce, the trial court e rre d by permitting O ffice r B unch to testify as an e x pert that people who are not a part of the tra nsaction ar e not "mer ely

prese nt" in ca ses involving suc h a larg e quantity of drug s. I t is also our view, howe ver, that this error a lso qualifies as harmless, see Tenn. R

. App. P

. 36(b); Tenn. R. Crim. P. 52(a), whe n considere d in the context of the proof at trial. Rennison, J oe Garcia
, and J udy Gar cia each te stified that th e de fe nd a nts we re pa rt ic ipa nts in the con sp ir a c y . T he re wa s c ir c ums ta nti a l e vid e nc e to

corr oborate their testimony

. The speculation by the officer was not
, in our vi ew, helpful to the state.

I V.-17-

Eac h of the de fenda nts nex t contends that the trial court e rre d by permitting O ffice r B unch to testify that Sanchez owned a

larg e ra nch in Mexico and by adm i t t ing into evide nce a map depicting the location of the ra nch, Ode ssa, Texas, L ibera l, Kansas, and Goodlettsville. They assert that neither the testimony nor the map w as re levant. The state submits that the fac t that Sanchez owned a larg e ra nch wa s relevant as it tended to impeac h Rodrigue z's testimony that Sanchez was in financia l trouble and h ad co m e t o Tenne ssee to look for w ork. The state also asse rts that Sanchez' s ownership of t h e ra n ch wa s relevant because Off icer Bunc h had testified that the marijuana seized from Rennison was " Mexi can" marijuana and had been c ompressed f or shipment

a c ro ss the bo rd e r. Th e state c on te nd s th a t th e map w a s r e le va nt f or the sa me re a so ns

.

Relevant e vidence is that "ha ving any tendenc y to make the e x istence of any fac t that is of

con se qu e nc e to the de te rm inatio n o f the a c tio n mo re pr ob able or le ss p ro ba

ble " than it

oth e rw ise would be. Te nn. R. Evid. 401. Gene rally
, all rele vant evidenc e is admissible. Tenn. R. Evid. 402. At the dis c re tion of the tr ia l c ou rt , h ow e ve r, re le va nt e vid e nc e ma y be e xclu de d if

it p re se nts a dang er of unfair pr ejudice:

Al tho ug h relev a nt, e vid e nc e ma y be e xclu de d if

its pr ob a tiv e va lue is

su bs ta nti a lly

ou tw e ig he d b y

the da ng e r o f u nf

a ir pr e jud ic e , c on fu sio n o f the iss ue s, or misleading the jury , or by considerations of undue d el ay , waste of time, or needle ss presentation of cumulative evide nce.

Tenn. R. Evid. 403. This court will not reve rse the trial court a bsent an ab u s e o f discretion. See State v. Stout, 46 S .W.3d 689, 700 (Tenn. 2001).

Her e, Of fice r B unch testified that Sanc hez had indicated during a pretria l hea ri n g t h at he

ow ne d a 10 00 -h e c ta

re ra nc h ne ar Coy a me , Me xico

. Of fi c e r B un c h e xpla ine d that 10 00 he c tare s is more than 2400 a cre s. The off icer stated that he ha d not se en the ranc h but c oncede d that the g ener al
terra in was roug h and dese rt-like and that he had not see n any farms or crops in the surrounding are a. The state the n introduced a map that Offic er Bunc h had prepa red which depicted the location of the

ranc h and other

cities. The defenda nts objected to the t estimony reg arding the ra nch and the map,

c la imi ng that th e re ha d b e e n n o p roof that the mari juana ha d b e e n g ro wn on the ranc h. Th e state acknow ledg ed that it had no proof as to the orig in of the marijuana but arg ued that it was pe rmitted to implythat the marijuana could have c ome from the Sanc hez ranc h. The trial c ourt admitted the testimony , concluding that "sinc e Mr. Sanc hez appar ently has testified a t a prior hearing that he owns property there , I think that it is proper ." The court also observe d that the testimony and the map we re admissible as part of the s tate' s theory of the c ase de spite the fac t that there ha d been no te stimony or other pr oof linking the ranc h to the marijuana . Finally , the trial court ruled t h at t h e pre judicial eff ect of the evidenc e wa s not substantiallyg reater than its proba tive value.

I n our view, the fa ct t hat Sanche z owned a ra nch in Mexico and the map de picting the location of the r anch w as not particula rly probative, ne ither qualifies as irre levant. The testimony reg arding Sanchez' s ownership of suc h a lar g e piec e of pr operty would have been a dmissibl e to re but Rodrigue z's testimony

that Sanchez was e x perie ncing financ ial difficulties. The map simpl y serve d-18-

as a demonstrative a id of the state' s theory of the c ase. U nder the se circ umstances, it is our view that the trial court did not err by permitting the testimony reg arding the ranch or by admitting the map into evidence

.

V. Sanchez asserts that the trial court erre d by admitting int o evidenc e a busine ss car d that had Rennison's te lephone number that was found in his wallet but was not disclosed prior to trial. The
state su bmi ts tha t th e re wa s n o e rr or be c a us e the de fe nd a nt f

a ile d to e sta

bli sh ba d f

a ith a ndbe c a us e the trial court provided the de fenda nt time to review the e vidence

.

Te nn e sse e Rul e of

Cr imi na l Pr oc e du re 16 pr ov ide s, in p e rt ine nt p art , a s f oll ow s:

Do c ume nts a ndTa ng ibl e Ob je c ts. Up on requ est of th e de fe nd a nt, the [s]ta te sh a ll pe rm it the de fe nd a nt to ins pe c t a ndc op y or ph oto g ra ph bo ok s, pa

pe rs , d oc ume nts , photogr aphs, tang ible objects, buildings or places
, o r copies or portions thereof, which ar e within the possession, custody or c o n t ro l o f t he [s] tate, and w hich ar e materia l to the preparation of t he defenda nt's defense or are int ended f or use by the [s] tate as e vidence in chief at the t ri al, or we re obta ined from or belong to the de fe nd a nt.

Tenn. R. Crim. P. 16(a)(1) (C ). T h e ru l e also provides for a continuing duty

to disclose such evidenc e:

I f, pr ior to o r d ur ing tr ia l, a pa

rt y dis c ov e rs a dd iti on a l e vid e nc e or ma te ri a l pr e vio us ly reque sted or orde red, w hich is subject to discovery or inspection under this rule, the party shall promptly

notify the ot her party or t he other party ' s attorney or t he court of the e xiste nc e of

the a dd iti on a l e vid e nc e or ma te ri a l.

Tenn. R. Crim. P. 16(c). He re, the state conc edes that it failed to disclose the card as require d by the rule.

Whe n a

pa rt y fails to c omp ly

wi th a dis c ov e ry

re qu e st, " the cou rt ma y

or de r s uc h p art y

to permit the discovery

or inspection, gr an t a co n tinuance, or prohibit the party

from introducing evidenc e not disclosed, or it may enter such other or der a s it deems just under the cir cumstance s." Te nn . R. Cr im. P. 1 6( d) (2 ). Whe the r a de fendan t has been pr e

jud ic e d b y

the state ' s f

a ilu re to disclose information is a sig nificant fa ctor in dete rmining a n appropriate re med y

. S t ate v. Sm ith, 926 S.W .2d 267, 270 (Tenn. Crim. App. 1995). The rele vant inquiry is what prejudice has re sulted from the discove ry

violation, not si mply

the pre judicial eff

ect the evidenc e, otherwise admissible, ha d o n th e iss ue of a de fe nd a nt' s g uil t. Sta te v. Ron a ld M itc he ll, No . 0 2C0 1- 97 02 -C C- 00 07 0, sli p op. at 7 (Te nn. Crim. App. at J ackson, Sept. 15, 1997) (c iting State v. Cottrell, 868 S.W .2d 673, 677 (Tenn. Crim. App. 1992) ); State v. Ga rl an d
, 6 17 S.W .2d 176, 185-86 (Te nn. Crim. App. 1981)). "T his court will not presume prejudice from a me re a lleg ation." State v. Q uincy L . Hende rson, No. 02C01-9706-CR-00227, slip op. at 10 (Tenn. Crim. App., at J ackson, May 12, 1998). Exclusion of-19-

e vid e nc e is a

" dr a sti c re me dy

a ndsh ou ld n ot b e imp le me nte d u nl ess th ere is n o o the r r e a so na ble alternative." Smith, 926 S.W .2d at 270.

The business ca

rd re cover ed f

r o m S an c h e z' s w a ll e t ha d Rennison's c ellular tele phone number

writt e n o n it

. Th e de fe nd a nt ob je c te d be c a us e thestate ha d f a ile d to dis c los e the c ardprior to t ri a l. As a re medy , the trial court electe d to give the defense "time t o revie w t hat material," c oncluding that the state ha d n ot d e lib e rate ly wi thh e ld the e vid e nc e in the dis c ov e ry pr oc e ss.

I n o ur vie w, the tr ia l c ou rt

did no t er

r by a dmi tti ng the c ardint o e vid e nc e . Wh ile the state

conce ded that it had not provided the evidenc e prior to tria l, it attributed the err or t o neg lect. The re was no proof

that the evidence was purposely withheld from the defense . The trial c ourt indicated
t h a ti tw o u l d g i v e t h e d e f

e n s e a m p l e t i m e t o r e v i e w t h e e v i d e n c e

. T h a t w a s a n ap p r o p r i a t e r e m e d y. See Te nn. R. Crim. P . 16(d)( 2). Sanche z is not entitled to relief on this issue.

Acc ording ly , the judg ments of the trial c ourt areaff irmed.

___________________________________ GARY R. WADE, PRES I DING JUDGE