# FILED
November 5, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON OCTOBER 1998 SESSION
STATE OF TENNESSEE, ) ) C.C.A. No. 02C01-9711-CC-00435 Appellee, )

) Lauderdale County v. ) ) Honorable Joseph H. Walker, III GRADY DEMOSS, ) ) (Delivery of Schedul e II Controlled Substance) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: Julie K. Pillow John Knox Walkup Assistant District P ublic Defender Attorney General & Repor ter P. O. Box 700 425 Fifth Avenue, North Somerville, TN 38068-0700 Nashville, TN 37243-0493 OF COUNSEL: Douglas D. Himes Gary F. Antrican Assistant Attorney Gener al District Public Defender 425 Fifth Avenue, North P. O. Box 700 Nashville, TN 37243-0493 Somerville, TN 38068-0700 Elizabeth T. Rice District Attorney General 302 Market Street Somerville, TN 38068 Mark E. Davidson District Attorney General 302 Market Street Somerville, TN 38068

OPINION FILED: ____________________________
AFFIRMED L. T. LAFFERTY, SENIOR JU DGE2 

### OPINION
The appellant, Grady Demoss, referred herein as the defendant, appeals as of right from the conviction for deliv ery ofa Schedule II controlled subs tance, to wit: cocaine,less than .5 grams, by a Lauderdale County jury. As a result of the jury v erdict, the trial court imposed a sentence of four years, six months in the Department of Correction and a fine of $2,5 00. The d efenda nt presen ts two issue s for app ellate re view. 1. Whether the trial court erred in overruli ng the defendant’s objection on groundsof hearsay to Officer Thompson testify ing as towhat he overheard the confidential informant say t o the defend a nt on December

11, 1996 at the time of the alleged ex change ofcocaine. 2. Whether the evidence presented at trial was sufficient tosupport the verdict and judgment

of guilty for the offense of delivery of Schedule II controlled substance (cocaine) less than .5 grams.

After a review of the entire record, the bri efs of the parti es, and t he appro priate la w, we have determined there is no error requiring a reversal. Accordingly, the trial court’s judgment is affirmed.

FACTUAL BA CKGROUND

Mr. John Thompson, a veteran drug investigator for the Lauderdale County Sheriff’s Department, testified he was a member of a surveillance team working drug buys through
a confidential informant in Henning, Tennessee on December 11, 1996. The surveillance team consi sted of the director of the drug task force, fellow agents, and an evidence custodian, who was responsibl e for recovering and sec uring evidence of buys. The agents utilized a surveillance v an near ta rget area s. Officer Thompson and Agent Dan Jones would monitor drug buys thr ough the use of a high-powe red videocamera and TV monitor. In addition, a confidential informant w ould be searched for the absence of drugs and then wired with a Kehl set which trans mitted conversations back to the surveillance v

an. These conversations

were then recorded on audiotapes. Thus, the surveillance officers were able to hear everything

said during the drug buys.3 At approximately 4:30 p.m. on D ecember 1 1, 1996, Officer Thompson met a confidential informant, Donald Wallace, at the Henning rest area on Highway 51. Wallace
was searched and fitted with a Kehl set to record any conversations. Prior to sending the confidential informant intoHenning, Office r Thomps on and De puty Kevin Brogdon d rove through Henning and obse rved the defendant standing in front of Rosie’s Cafe. Officer Thompson gave the confi de ntial informant two $20 bill s for the buys. Officer Thompson and Agent Jones proceeded to the target

area and set up their surv eillance van. Officer Thompson notified Deputy Brogdon to send the confidential informant to the t argetarea.

Officer Thompson began videoing the t argetarea. Officer Thompson observed the defendant go inside Rosie’s. The defendan t came out of the cafe and the confidential informantstopped in front of Rosie’s, w her e the d efendant a nd Walla ce began talking. Officer Thompson heard Wallace tell the defendant, “he wanted a couple ofstones” (street slang for crack cocaine). The defendant told Wallace, “Okay. Pull over.” Whe n Wallace parked his car, the defendant approached the car and stated, “Yeah, w hat you need? ” Wallace responded, “I wantto get a cou ple of ni ce stone s.” The de fendan t said, “Ok ay, I’ll be right back.”

The defendant went into the cafe and retur ned. The defendant then got into the car and directed Wallace to driv e of f. The defendant inquired if the confidential informantwas the police. Wallace denied this. W allace then bought the stones from the defendant for $40.

Officer Thompson and Agent

Jones returned to the rest area, where they observed Deputy Brogdon ha d two pieces of crack c ocaine in a clear Zip loc bag in h is custod y. L ater, Officer Thompson discovered the Kehl set transm issions of the conversa tion s between the defendant and Wallace had malfunctioned and w ere inaudible.

Donald Wallace, the confidential informant in this case, testified he contac ted the Lauderdale County Sher iff’s Department and talke d to Officer Th ompson about unde rcover work. Mr. Wallace had three small childr en and was concerned about the loc al volume of drugs and violence. Mr. Wallace had ambiti ons to be a law enforcement officer, but lacked4

a high school diploma or G ED.

Mr. Wallace testified he was advised by Officer Thompson to meet Thompson at the rest area on Highway 51. Wallace was searched and then wi red with a wire monit or and given $40 cash. Upon instructions , Wallace proceeded to the McFarland Stree t are a in Henning. Wallace drove around the block and upon his return, the defendant approach ed him and inquired, “What do you want?” Wallace responded t hat he wanted two of the biggest stones the defendant had. The defendant said, “Wait a minute.”The defendant wenti n the cafe and returned and got in Wallace’s c ar. They rode up the stree t. Th e defendant showed Wallace two rocks of cocaine and Wallace gave the defend ant the t wo $20 bills. Wallace d rove t he defendant back to the cafe’s area and then returned to the rest ar ea. Wal lace gave the two pieces of crack cocaine to Deputy Brogdon. Wallace testified he received $40 for making this buy. Wallace used the name of John Anderson during this buy. Also, Wallace testified this was his first buy as an underco ver in for mant and he di d not kno w the defe ndant pr ior to this buy.

Kevin B rogdon,deputy sheriff for Laud erdale Co unty, testified he assisted Officer John Thompson and others in an underc over buy in Henning. Officer Brogdon’s responsibility

was to remain at the r est area during the buy. The confidenti al informant, Donald Wallace, was wired and sent to the area of the buy

after Officer Thompson had set up surveillance. Later, Wallace returned and gave Deputy Brogdon the narcotics he had purchased. Deputy Brogdon denied the defendant was sing led out for drug purchases.

Den nis Cheairs, directo r of the Twenty-Fifth Judicial District Violent Crime Drug Task Force, testified he participated in the purchase of cocaine from the defendant. Mr. Cheairs and another

officer were to

provi de backu p fo r safe ty reasons for the confidential informant. Mr . Cheair

s fo llowed Wallace to Henning and wa s in audio contact with the informant. Cheairs heard someone talking to the informant and hea rd a car door shut. Then, Cheairs followed th e informant b ack to the rest area. Cheair s could not recall the specifics of the conversati on he heard between the defendant and the i nformant.5 Ms. Lisa Mays, forensic s cientist with the Tenness ee Bureau ofInvestig ation Crime Laborat ory, testified that the substan ce she re ceived from Officer Thompson contained cocaine base and weighed 0 .1 gram.

The d efendant testified he was standing outside Rosie’s Cafe on Dec ember 11, 1996. Rosie was a longtime friend of the family. The defenda nt testified Donald Wallace pulled up, threw up his hand, and hol lered atthe defendant. The defendant approached the car and Wallace asked the defendant about some drugs. The defendant told Wallace, “I do not sell drugs; I didn’ t know nothing about no dr ugs.” The defendant

asked Wallace to wait a min ute while the defendant w ent in Rosi e’s to use th e bathroom. The defendant
r eturned to Wallace’s car and W allace gave the defendant a ride up the stre et. Th e defendant denied there was any exchange of drugs or money in the car. The defendant testified he knew

Officer Thompson from previous encounter s on McFarland Street. The defendant testified he had never seen Wallace before and after Wallace let him out of the car, the defend ant went t o Jessie Ha lliburto n’s store to purcha se cigaret tes. Appa rently, Jessie Halliburton w

ould have been a reluctant w itness in the defendant’s behalf.

Based on all of the testimony and physical evidence, the jury found the defendant guilty.

APPELLA TE ISSUES

The defendant contends the trial co urt err ed in permitting Officer Thompson to testif yas to what the confidential informant, Donald Wallace, said during the drug transaction. The defendant argues that these statements were made for the truth of the matter asserted, there was a dr ug transaction between the defendant and Donald Wallace, in violation of Rule 801(c) , Tennessee Rules of Evidence. Howeve r, the defendantdoes not cite any authorities, other than the rule, in support of his contention that the trial court’s ruling was in error under these facts. The State counters that the state ments of Wallace
were not offered to prove the truth of what the informant asserted, but to explain the police6

surveillance and gi

ve context to the inv

estigation.

Tennessee Rules of Evidence 801 defines h earsay as: (a) Statement. A “statement” is (1) a n oral or written assertion or (2) nonver bal cond uct of a person if it i s intended by the person as an as sertion. (b) Declarant. A “declarant” is a person who makes a statement. (c) H ea rsay. “Hearsay” is a s tatement, other than one made by the declarant whi le testifying at the tr ial or h earing, offered in evidence to prove the truth of the matter asserted.
We do not find the trial court was i n error in permitting Officer Thompson to relate whatthe info rm ant, Donald Wallace, stated to the defendant. The testimony of Officer Thompson was not offered for the truth of the matter asserted therein, but to explain the
reasons why the of

ficers had this particular drug transaction under observ ation. State v. Jones, 598 S.W.2d 209, 223 (Tenn. 1980); State v. Barry Hill, Dickson County No. 01C 01- 9004-CC-00113, 199 1 W L 218288 (Tenn. Crim. App., Nashville, October 29, 1991). Fu rth ermore, the declarant, Donald Wallace, testified as to his conversations w ith the def endant. Thus, the defendant had the benefit of testing the accuracy of Wallac e’ s statements i n the presence of the jury. In hi s own testimony, the defendant admitted Wallace asked him for drugs which cor roborates the testimony of Officer Thompson. Even if the testimony o

f Off icer Thom pson was error, it was harmless beyond a reasonable doubt, in light of the overw helming guilt of the defendant. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ; State v. Fears, 659 S.W.2d 37 0, 37 8 (Tenn. Crim. App. 1983), cert. denied , 465 U.S. 1082, 104 S.Ct. 1450 , 79 L. Ed.2d 768 (1984). There is no merit to this is sue.

In his second is sue, the de fendant contends that the evidence w as insufficient to support the verdict of

guilty for the offense of delivery of a Schedule II controlled subst ance (cocaine) less than .5 g rams.

When a jury convicts an indi vid ual of a criminal offense, the presumpti on of7

innocence disappears just as the sunset. Thus, the presumption of innocence is r eplaced byone of guilt, so that on appeal a convicted defendant has the burden of demonstrating that the evidence is insuffic ient. S tate v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In determining the sufficiency of the evidence , this court does n ot reweigh or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Te nn. 1978). On appeal, the State is entitled to the strongest legitimate view of th e evidence and all legitimate or reasonable inferences which may be draw n therefrom. State v. Harris, 839 S.W.2d 54 , 75 (T enn. 1992). It is the appellate court’ s duty to affirm the conviction if the evidence view ed under these standar

ds was sufficie nt for any rati onal tr ier of fa ct to have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ; State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R. App. P. 13(e). This r uling is applicable to findings of guilt predicated upon direct evide nce, ci rcumstantial evidence, or a combination of both direct and
c ircu mstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).

In concl usion, the proof before the jury i mplicating the

defendant

consis ted of: 1. Officer

Thompson of the Twenty-Fifth Judic ial District

Violent Cr

ime Drug Task Force conducted a surveillanc e in Henning on December 4, 1996 for possible drug trafficking. The officer observed the defendant in the t argetarea and thus the defendant became a suspect. 2. On December 11, 1996, Officer Thompson sent the wire d informant, Donald Wallace, into the surveillanc e area to see if the informant could buy crack cocaine from the defendant. This event was monit ored by audiotapes and a vi deo camera. 3. Officer

Thompson observed the informant meet the defend a nt and ask the defendant for “two stones.” The defendant ent ered Rosie’s Cafe, returned,and had the informantdrive him down the st reet. The defendant sold the crack cocaine

to the informant for two $20 bills. 4. The informant returned to the rest ar ea on Highway 51 and gave th e l aw enforcement officers the suspected cocai ne. An analysis established the substance was8

cocaine. 5. The defendant testified he wa s at Rosie’s Cafe on the date i n question. The informantpulled up in a car and inq uired if the defendant had any drugs, t o which the defendant denied having any drugs or knowledge of drugs. However, the defendant w ent into Rosie’s, returned, and got into the informant’s car for a ride down the street

.
Based on this

proof, we find the evidence sufficient from which a rational trier of fact could have found the de fendant guilty beyond a r easonable doubt as to the offense of delivery of a controlled substance, Schedul e II, to wit: cocaine. This issue is without merit.
The trial court’s judgment is affirmed.

________________________________________ L. T. LAFFERTY, SENIOR JU DGE
CONCUR:

___________________________________ JOHN H. PEAY, JUDG E

___________________________________ DAVID G. HAYES, JUDG E