### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Septem ber 16, 200 3 Session
STATE OF TENN ESSEE v. CHRISTOP HER ROBERT SMITH Direct Appeal from the Criminal Court for Davidson County

No. 2000-C-1351 Steve Dozier, Judge

No. M2002-03128-CCA-R3-CD - F iled Janaury 23, 2004

The Appellant, Christopher Robert Smith, was convicted by a Da vidson County jury

of possession withintent to deliver over 300 grams of cocaine, a class A felony

. Following this conviction, he was sentenced to twenty-one y

ears imprisonment. Smith appeals, arguin g that (1) the trial court erred byde nying his motion to suppress and (2) the trial court improperly a

dmitted evidence of prio r criminal conduct. After a review of the r ecord, the judgment of the trial court is affirmed. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

Affirme d.
D AV ID G. H AYES , J., delivered the opinion of the court , in which J OSEPH M. T IPTON and J OHN E VERE TT W IL LI AMS , JJ., joined. Cynthia M. Fort, Nashville, Tenne ssee, on appeal, for the Appellant, Christopher Robert Smith.
Paul G. Summers, Attorney Gene ral and Reporter; Michael Moore, Solicit or General; El izabeth B. Ma rn ey, As si st an t A tt or ne y Ge ne ra l; Vi ct or S. (T or ry) Johnson III , District Attorney Gene ral; and Tammy Meade and John Zimmerman, Assistant District A

ttorney s Gener

al, for the A

ppellee , State of Tennessee.

OPINION
Factua l Background
In March of

2000, ag ents of the 20 th Judicial District Drug Task Force received information that the Appellant and Christopher Robert Agee were involved in a

major cocaine distribution ring betweenTexas and Nashville. During the investigation, Agent Jose Ramirez, a Metro police officer assigned to the Dru g Task F

orce, le arned th at the two men rented cars from Dollar Rent-A-Car a t the Nashville International Airport and would then drive to Texas to buy drugs. Ramirez discovered that the Appellant

had rented

a maroon Lincoln Town Car, license number ARU051, on March 20, 2000, and returned thevehicle on March 27, 2000. During this time, the rented vehicle was driven-2-

2,274 miles. On the 27 th , the Ap pellant re nted anot her vehi cle, a white Dodg e In treprid, license number 558UCQ. Sergeant James McWright, also assigned to the Drug Task Force, wa s involved in the investigation of the Appellant and pa rtici pated in th e surv eill ance of his ap artme nt at 5 825 C rossi ngs Boulevard, Apartment 710, in Antioch. Sergeant McWright routinely conducted surveillance of the Appellant’s Antioch apartment. “During March,”Sergeant McWright observed the Lincoln Town Car parked in front of the Appellant’s apartment. On April 1, 2000, at approximately 7:30 p.m., he drove by the apar tment and did not see

any lights on at that time . Lat

er, he r eturned to the apar

tment, saw lights on, and saw the white Dodge I ntrepid in the parking lot. Sergeant McWright and several other of ficers t hen set up

continuou s surveill ance of the apar tment. During the surve

illance, the offic ers obse

rved L eslie Bennion arrive at the apartment. While Bennion was inside , Serge ant McWrig ht ran a re gis tration check of Bennion’s license plate a nd determinedthat Bennion was on parole for selling cocaine in 1997. B ennion then left the apartment andwas followed by O fficer Mike Garbo u, who stop ped Ben nion afte r he comm

itted a tr affic violation. A drug d

og “ale rted” to the pres ence of

narcoti cs, and B ennion wa s a rres ted. “[A] quarter-pound

of cocaine, that looke d like it had just [come] off a kilo brick” was found inside Bennion’s vehicle.
As a result of the search of Bennion’s c ar, Agent Ramirez was sent to obtain a search warrant for the Ap pellant’s residence. While the officers were wa iting for the search warra nt to arrive, a police drug dog was escorted around the Dodge Intrepid, and the dog

“alerted” to thepresence of a narcoti c odor. The officers then saw Age e “come out of the apartment, run down the steps, and pee r outinto the parking lot. He ran to the other end of the breezeway and lookedaroun d the p arkin g – or looked ou

t toward th e – the highway . He was barefooted[.]” Believing Ag ee had been “tipped off” that Bennion had

been stop ped, Ser geant M cWright

ordere d Agee ’s arre st. Bec ause of the la te hour, the cool weather, and the fact that Ag ee was barefooted, t he officers ret

urned Agee to the unlockedapartment and placed him on the sofa. The offi cers the

n woke the

Appellan t, escor ted him to the living room, and sat him on the sofa n ext to Agee. At this time, Sergeant McWright Mirandized

the Appellant. Following issuance of the search warra nt, a search was conducted of the pre mises. Th e search led to the seizure of approximately 5 pounds of coca ine, cash, a hand gun, paraphe rnalia, and marijuana. Most of the cocaine, a loaded handgun, a nd $4,000 cash we

re found in Agee ’s bedro om. According to McWright, the Appellant knew the a mount of the money even thoug h it was located under Agee’s mattress . A plate with coca ine resid ue was f ound unde

r the sof a in the liv

ing room

. Inside a kitche

n cabine t, office rs found a

small amou

nt of coc aine, a s mall amoun t of marij u ana , electro nic scales with cocaine residue, food savers tha t could be va cuum sealed to avoid the detection of drug-s niffing

dogs, str aws for s norti ng co caine, a nd a gr inder used for gr

inding c ocaine into powder. Also, insid

e the Dod ge I ntrepid, office

rs located a rece

ipt, dated April 1, for a purchase at the Williams Travel Center in Robinson, Texas.1 It appea rs from the record that, thereafter , in April 2001, the App ellant and t he co-defendant’s cases were
sever ed. -3- According to McWright, Agee stated that the cocaine belonged to him but insisted that the gunwas not his. Sergeant McWright then took the Appellan

t into the be

droom so he

could put h

is shoes on, and the Appellan t said, “he couldn’ t turn on the Mexican s, ‘caus e they knew whe

re his family lived and that they would kill him. He said that he owed the Mexicans more than a hundredthousand dollars for the cocaine that we had seized from him.”
On July 25, 2000, the Appellant and Agee were indicted for possession with intent to deliver over 300 grams of cocaine and money laundering. The Appellant and Ag ee f iled a moti o n to suppressthe search of the residence, which w as denied. 1 After a trial by jury, t he Appellantwas acquittedof

mo ne y la un de ri ng bu t w as fo un d g ui lt y o f poss ession with intent to deliver over 300 grams of cocaine, a class A felony . Following a sentenc ing hearing, the Appellant received a sentence of twenty

-one y ears to b e serve d consecutively to a prior drug offense. This timely appeal followed.
ANALYSIS
I. Motion t

o Suppress First, the App ellant arg ues that the trial court erred by denying his motion to suppress the evidenc e discove

red during the se arch of

his apar tment. Spe cifically, he conte nds that:
the affidavit in support of the search warrant did no t provide

facts necessar

y to support a finding of a

nexus between the apartment to be searched and the evidence sought. The aff

idavit mer

ely describ es previ ous encounters th at the of ficer h ad with [the Appellant]. The affidavit also contains three different addresses purported to be linked to [the Appellant]. There is no information in the aff id avit supporting the inferenceof [the Appellant’s] being at The Crossings Boulev ard apartment wit h drugs or any

other illegal subs tances. Further , the aff idavit ass erts that

a white ma

le was seen leaving the apartment; however , he was not seen carry ing anything into the residenceor out of the residence. Thus, the fac t that he was at some point in the evening at this apa

rtment is not a fact that should be relied upon to provide evidence of the nexus between the apartment and criminal activity

. The trial court, in a very

detailed order, deni ed the Appellant’s motion to suppress the evidence found inside the apartment, concluding that the searc h warrant was supported by probable cause.
A trial court’s factual findings on a motion to suppress are conclusive on appeal unless the evidence preponderates against them. State v. B inette , 33 S.W.3d 215, 217 (Tenn. 2000) (citing State v. Odom , 928 S.W.2d 1 8, 23 (Te nn. 1996) ); see also State v. Daniel , 12 S.W.3d 420, 4 23 (Tenn. 2000). Indeed, questions of cr edibility of the

witnesses, the weight and value of the evidence,2 On June 30, 2003, a mot ion was fil ed with thi s court to supplement the record to incl ude the “[o]rder denying the motion t o suppress and the s earch warr ant af fidavi t[. ]” This moti on was gran ted. However, only the order denying the mo tion to su ppr ess the e viden ce wa s includ ed in the supp leme nt to the re cord

.

3 We note that, based upon the fact s as pres ented in the trial co urt’s ord er, the affid avit do es estab lish pro bab le
cause for the issu ance of a sea rch wa rrant. T he trial co urt ma de the followin g relev ant findin gs:

It can clearly be inf

erred f rom the af

fidavi t th at the police knew th e defendant s were i nvolved in a majo r distribution ring of coca ine. The d efendants b oth made statements to Sgt. McW right prev iously conc erning their op eratio n and how th ey transp orte d illegal narcotics fr om T exas. The affidavit also stat es that a confi dential i nform ant ad vis ed the affi ant that t he defendants would rent vehicl es for the purpo se of driv ing to T exas to acquire narcotics. Additionally, the defendants were in posse ssi on of a ren tal car that a drug d etection do g positively alerted on for the odo r of narcotics. The affian t al so explai ned that he veri fied t

hat t his v ehicl e had been rented a few day s before b y (con tinued ...) -4- andresolutio n of conf

licts in the

evidenc e are ma

tters ent rusted to the trial judge as the trier of fact

. Daniel , 12 S.W.3d at 423; see al so State v. Walton , 41 S.W.3d 75 , 81 (Ten n. 2001). The par

ty prevailing in the trial court is entitled to the strongest legitimate view of the evidenc e adduced at the suppression hearing as well as all reasonable infe rences tha t may be drawn from that evidence. Bi nett e, 33 S. W.3d at 217 (quot ing Odom , 928 S.W.2d a t 23). I f the evi dence does not inv olv e questions of credibility, the re viewing court must examine the record de novo without a presumption of correctness. Id . Notwiths tanding the natur e of the p roof, the applica tion of the

law to the

facts remains a questio n of law th at requi res de novo review. W alton , 41 S.W.3d a t 81; Daniel , 12 S.W.3d at 423. Here, since no testimony was presented at the suppression hearing , the trial court’s ruling, premised solely

upon the search

warrant and supporting affidavit, was one of law. State v. Gilbert , No. 01C01-9311-CC-00383 (Tenn. Crim. App. at Nashville, Mar. 3, 1995).
The search warrant and

accompany

ing affidavit were

not introduced and never became a pa rt of the rec ord, neit

her at tr ial nor on appeal. If th

e finding s are inc omplete a nd/or the record is insuffic ient, de novo review will have relatively little benefits when the issue pre sente d is of an extremely fact-bound nature. State v. W aylon D. Kn ott , No. M2000-02524- CCA-R3- CD (Tenn. Crim. App. a t Nash vill e, Ju ly 27, 20 01 (ci ting Ornelas v. United States , 517 U.S. 690, 700-01, 116 S. Ct. 1657, 1664 (1996) (Scalia, J., dissenting)). The trial court’s order deny ing the Appellant’s motion to suppress does contain several refere nces to port ions of th e affidavit. Howeve r, these references are prefac ed with the following language, “The releva nt portion s of the af

fidavit in support of the search warrant for the pr operty listed

at 5825 Crossings Boulevard, apartment 710 are summarized as follows.” (emphasis added). The search warrant and ac companying affidavit do not appear in the trial record. We are unable to find any part of the transcript where any attempt was made to insure the presence of the document in the eve nt of appellate review. 2
De novo review is pe rmitte d to prevent a miscarriage of justice r esulting from the legal dete rmination of a single judge. Way lon D. Knott, No. M2000-02524-CCA-R3-CD. Thus, if th e record is incomplete, an appellate court is prevented from completing a ny meaning ful review of the law appli cable to

those per tinent fa cts. This is precis ely

the situat ion in the c ase bef

ore this c ourt. 33 (.. .cont inu ed) defen dan t Smith. Lastly, the search of a visitor’s vehicle that had just lef t th e defendant ’s r esidence yielded app roxim ately five o unce s of co caine

. The se facts do support a “reasonable ground of susp icion, su ppo rted b y circum stance s indica tive of an illegal act.” State v. Henni ng , 975 S.W .2d 290, 294 (Tenn. 1998 ).

4 The Appellant

also appear s to ar gue tha t the admis sibi lit y of t his s tate ment had been deter mined prior to trial. Th e Ap pellan t, in a do cum ent entitled , “M otion in Limin e N o.3, re que sted the cour t to:

instruct the State and it s witness es not to mention or make reference in voir dire, opening statement or in testim ony to the facts a nd cr imes c harge d in C ase N o. 20 00-D -188 0.

As grounds for the motion the defendant would state t hat any mention of t

hat case or the facts of that case would be ext

remely prejudici al and not probativ e and ther efore s hould be excl uded under Rule 404 of the T enne ssee R ules of E viden ce.
Th is motion was grant ed. Fir st, as point ed out by t he Stat e, although the tri al court ordered the t wenty -one ye ar sent ence in thi s case t o run consecu tiv ely to a prior dru g off ense, Case No

. 2001-A-42 1B, the record does not reflect what t he offen se in Case No. 2000-D-1880 was. Second, the cha llen ged statement was not specifical ly incl uded in the motion, and the State did not i ntentionall y elici t the i nformation. Final ly, t he statement pertai ns to the present offense and does not vio late Ru le 40 4(b ).

5 The Appel lant did not object to the fi rst sent ence of the statement concerning his inabi lityto turn on the M exicans. The objec tion was based only on the second sentenc e of the sta teme nt, which referred t o owing the Mexicans $10 0,00 0. -5- Moreove r, it is the duty

of the Ap pellant to prepar e a rec ord that p

resentsa comple

te and accurate account of w hat trans pired in th

e trial c ourt with r

espect t o the issue

on appea l. Tenn. R. App. P. 24(b) ; State v. Johnson , 854 S.W.2d 897, 902 (Tenn. Crim. App. 1993) (where search warra nt ap parentl y never became a part of the r ecord at all, appellate review of the wa rrant was denied)

. Failure to do so results in waiver of the issue. Thompson v. State , 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997).
II. Character Evidence Next, the Appellant argues that admission of

his statem

ent reg arding

owing the “Mexica

ns” $100,000 violated Tennessee Rule of Evidence 404(b) and constituted reversible err or. 4 During the State’s direct examination of Se rgeant James McWright, he testified that the Appellant made the following statement at

the time of

his arre st, “He said

that he c ouldn’t tu

rn on the M exicans, ‘ cause they knew where his family

lived and that they would kill him. He said that he owed the Mexicans more than a hundred-thousand do llars for the coca ine that w e se ized from him.” The Appellant obje c ted, and a 404(b) jury -out hearing was held. The objection was ba sed upon the figure $100,000. 5 The proof before the jury showed that appr

oximately two kilograms of coca ine had been discovered

in the App ellant’sapartme nt, and the st

reet va lue of one kilo of co caine in

Nashville was “anywhe re from twe

nty to twenty -four- thousand. ” Thus, the value of the cocaine in the Appellant’s apartment was approximatel y $48,000. Accordingly , the figure of $100,000 implied that the-6-

Appellant had purchased cocaine from the Mexicans on a pr ior occasion. Furthermore, Se rgeant McWright’s notes indi cate tha t this figure wasbased up on coca ine for “this arre st

and the la st arrest.”
Admissible

proof must satisfy the threshold dete rmination of relevancy mandated by Tennessee Rule of Evidence 401, which defines relevant evidence as that " having

any tendenc y to make the existence of any f act that is of consequ ence to the determination of the action more probable or less pr obable than it would be without the evidence." Tenn. R. Evid. 401. Rule 403 adds that re le vant "evidence may

be excluded if its probative value is substantially outweig hed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, wa ste of time, or needless presentation of cumulative evidence." Tenn. R. Evid. 403. Fi na ll y, Rule 404 d eals with "character evidenc e." Subsection (b) of this rule provides that "evidenc e of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in confor

mity withthe character trait." Tenn. R. Evid. 404(b)

. However, the same subsection further sets out that such evidence may be allowed "for other

purposes" if the following conditions are met prior to admission of this type of proof: (1) The court upon request must hold a hearing outside the jur y's pr esence; (2) The cour

t must dete

rmine tha

t a mate rial issue exists other than conduct conf orming with a character trait and must upon request state on the r ecord the material issue, the ruling, and the reasons for a dmitting the evidence; and (3) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice

. Id. Providing further clarification concer ning the second requirement, "other purposes" have been definedto include: (1) motive; (2) intent; (3) guilty knowledge; (4) identity

of the defendant; (5) absenceof mistake or accident; (6) a common scheme or plan; (7) completion of the story; (8) op po rt un it y; and (9) preparation. State v. Robert Wayne Herron , No. M2002 -00951-C CA-R3-CD (Tenn. Crim. App. at Nas hvil le, J an. 22 , 2003 ) (cit ing Collard v. S tate , 526 S.W.2d 112, 114 (Tenn. 1975); N EIL P. C OHEN E T A L ., T ENNESSEE LAW OF E VID ENCE § 404.6 (3d ed. 1 995)); see also Advisory Commission Co mments, Tenn. R. E vid. 404; State v. Parton , 694 S.W.2d 299, 302 (Tenn. 1985); Bunch v. State , 605 S.W.2d 22 7, 229 (Te nn. 1980) ; State v. Jones , 15 S.W.3d 880, 894 (Tenn. Crim. App. 1999). Should a re view of th e recor d indicat e that the trial court substantially complied withthe requ

irementsof Rule 40

4(b), the trial cou rt's ad mission of t

he chall enged

evidenc e will r emain undisturbed absent an abuse of discretion. State v. D uBose , 953 S.W.2d 649, 652 (T enn
. 1997) (citation omitted).
In the order de nying the A

ppellant 's motion

for new trial, the trial cou rt found t hat:
the Court is of the opinion that the statement, from the jury’sprospective, was vague andmay have been suggestive of prior contact. The jury may have regarded th is-7-

statement of a n amount of m onies owed to the Mexicans as being probative of the issue they were

empaneled to decide. (i.e. whether t he defendant was guilty

of possession with the intent to resale or deliver.)
The issu e of con seque nce bef ore th e jury in t his ca se was wheth er the A ppell ant di d know ingl y possess cocaine

with the in

tent to deliver. Th

e Appella nt’s theo ry of defe nse at trial was that he was “merely presen t” in t he apar tment where t he dru gs where located. He conte nded that , becau se most of the coca ine was f ound hidde

n in Age e’s bedr

oom, the State

failed to prove that he exercised the requisite "dominio n and con

trol" ov er the dr

ugs. Evi dence o f the App ellant owing th e Me xicans $100,000 was relevant to establish knowledge and intent to possess coca ine on the date in question. Robert WayneHerron , No. M 2002- 00951 -CCA- R3-C D (cit ing U.S. v. To mberlin , 130 F.3d1318, 1320-21 (8th

Cir. 1997) (defendant put a t issue both

his knowle dge of

and inten t to posses s drugs, asserting "mere presence" defense in prosecution for felony possession by admitting

occupation of bedroom but denying knowledge of drugs found at residence; thereby , allowing admission of prior drug convictions)). We find no abuse of discretion with regar d to the trial cou

rt's ruling on th

is issue. Furthermore, we conclude that, even if admission of the statement was error, such error wa s without prejudicial impact upon the jury due to the vagueness of the statement and overw helming evidence of guilt presented at trial and, as such, constitutes harmless er ror. See Tenn. R. Crim. P. 52(a).
CONCLUSION
Based upon the f

orego ing, we

conclude that de novo review o f the App ellant’smotion to suppressissue is precluded because the search w arrant and supporting affidavit are notincludedin record. We also conclude that the trial court did not err in admitting the Appellant’s statement that “he owed the Mexicans more than a hundred-thousand dollars for the cocaine that we seized from him.” Accordingly , the judgment of the Davidson County Criminal Court is affirmed.

___________________________________ DAVID G. HAYES, JUDGE