IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

June 28, 2016 Session

STATE OF TENNESSEE v. DAVA MARTIN

Appeal from the Criminal Court for Bradley County

No. 13CR462C Sandra Donaghy, Judge

No. E2015-01814-CCA-R3-CD – Filed August 22, 2016

The Defendant-Appellant, Dava Martin, was convicted by a Bradley County jury of one 

count of casual exchange of a controlled substance. See T.C.A. § 39-17-418. Martin 

received a sentence of eleven months and twenty-nine days, suspended to supervised 

probation after sixty days’ incarceration, and a $2,000 fine. She subsequently filed a 

motion to reconsider her sentence, which the trial court interpreted as a motion for a 

reduction of sentence pursuant Tennessee Rule of Criminal Procedure 35, and, following 

a hearing, the motion was denied. The sole issue raised on appeal is whether the trial 

court improperly denied Martin’s motion for sentence reduction. Upon review, the 

judgment of the trial court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY,JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Kenneth L. Miller, Cleveland, Tennessee, for the Defendant-Appellant, Dava Martin.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant 

Attorney General; R. Steven Bebb, District Attorney General; and Dallas Scott, III, 

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

This appeal stems from an exchange of prescription narcotics in a Walgreens 

Pharmacy parking lot in Bradley County. In relation to this offense, Martin and her 

codefendant boyfriend, Randall Evans, were indicted on one count of conspiracy to sell 

and deliver a Schedule III controlled substance, a Class E felony, and one count of the 

sale or delivery of a Schedule III controlled substance, a Class D felony. A jury trial 

began on February 25, 2015, at which time the following evidence was adduced. 
-2-

On February 10, 2013, Agents Dave Jones and Shawn Fairbanks of the Tenth 

Judicial District Drug Task Force were conducting surveillance of the Walgreens 

Pharmacy on 25th Street in Cleveland, Tennessee. A gold, four-door, Ford F-150 driven 

by Randall Evans pulled into the parking lot, and Martin exited from the passenger side, 

walked inside the pharmacy, and returned carrying a white prescription bag. Shortly 

thereafter, Martin’s daughter, Britney Lane, and Lane’s boyfriend, Jeremy Kimsey, 

pulled next to Evans’s truck in a white Chevrolet Cavalier. Kimsey, who had been 

driving, got out of the white car and into the backseat of Evans’s truck, and Martin exited 

the truck and got into the car with Lane. 

At that time, Agent Jones was sitting in the parking lot of the CVS Pharmacy 

across the street and could see inside the front windshield of Evans’s truck. He testified 

at trial that he did not see Martin hand anything to anyone before exiting the truck. 

However, after Martin exited the truck, he observed Kimsey leaning forward talking to 

Evans “and what looked like to be an exchange of what [he] suspected to be narcotics. 

Specifically, it looked like [Evans] was counting something out in the console area, and 

[Kimsey] was leaned over watching him do so.” After several minutes, Kimsey returned 

to his car and Martin got back in the truck with Evans. Agent Jones testified that he saw 

Kimsey put something in his right front pocket and “turn[] as if he may have dropped 

something” as he exited Evans’s truck. 

Agent Jones then followed Kimsey’s car out of the Walgreens parking lot and 

initiated a traffic stop after observing Kimsey make an illegal U-turn. He asked Kimsey 

about what he had observed in the parking lot and whether Kimsey had anything illegal. 

In response, Kimsey pulled seventeen blue hydrocodone tablets out of his right front 

pocket. Agent Jones confirmed at trial that Kimsey told him that the hydrocodone pills 

were for Lane. Agent Jones admitted that he never questioned Lane about the offense. 

On cross-examination, Agent Jones testified that he was parked around “forty feet, 

maybe, fifty feet” away from Evans’s truck during the offense and that the CVS parking 

lot was lower so he had been looking into the truck at an upward angle. He could see to 

about Evans’s and Kimsey’s mid-chest level and observed movement down in the 

console area below the dash line. However, he noted that it was raining on the day of the 

offense and that he was not 100 percent sure what Evans’s hands were doing inside the 

truck. He conceded that the movement of someone counting pills would have looked the 

same as the movement of someone scrolling through photographs on their cell phone 

from where he was parked. 

Agent Fairbanks, who had been parked at the back of the Walgreens during the 

offense, confirmed Agent Jones’s observations at trial. He further testified that he 

followed Evans’s truck out of the Walgreens parking lot while Agent Jones pursued 
-3-

Kimsey’s car and initiated a traffic stop upon noticing that Evans was not wearing a 

seatbelt. During the stop, he advised Evans of what he had observed in the Walgreens 

parking lot, and Evans denied that a drug transaction had occurred. Agent Fairbanks 

noted that Evans “was fully cooperative” and consented to a search of his person and his 

truck. During the search, a plastic pill holder containing two white hydrocodone tablets 

was recovered from inside Evans’s pocket. Moreover, a prescription bottle with Martin’s 

name on it containing sixty-nine hydrocodone tablets was recovered from inside Evans’s 

truck.

On cross-examination, Agent Fairbanks testified that he had been parked about 

eighty feet away from Kimsey’s car during the offense. He also confirmed that the two 

hydrocodone pills Evans had were a different color than the hydrocodone pills recovered 

from Martin’s pill bottle and Kimsey’s pocket. He verified that Evans, Martin, and 

Kimsey sat together inside the Evans’s truck for around five minutes before Martin got 

into Kimsey’s car. He agreed that he could not see inside the truck because it was raining 

and the truck had dark-tinted windows. He also conceded that there was no money 

recovered in his search of Evans’s truck and that it was possible that there was no money 

involved in the offense at all.

Britney Lane testified that in early February 2013, she had an abscessed tooth that 

was causing her pain and she could not afford to go to the dentist. Lane knew that her 

mother was prescribed pain medication, and she asked her several times for medicine 

until Martin agreed to give Lane twenty of her hydrocodone pills. On February 10, 2013, 

Kimsey drove Lane to meet Martin and Evans at the Walgreens Pharmacy in Cleveland. 

When they arrived, Kimsey got into the truck with Evans and Martin, and Lane stayed in 

the car with their four-month-old daughter. Lane said that Martin was in the truck with 

Kimsey and Evans a “[c]ouple of minutes” before she got out to see the baby. After a 

brief visit, Martin got back into the truck with Evans, and Kimsey returned to his car with 

the hydrocodone pills Martin had given him. Lane testified that she immediately ingested 

three of the pills as she and Kimsey were exiting the Walgreens parking lot and that 

Agent Jones stopped them right after they left Walgreens. She noted that Agent Jones did 

not question anyone other than Kimsey during the stop.

On cross-examination, Lane testified that she did not have dental insurance in 

February 2013 and that Kimsey’s father eventually paid for her to get her tooth pulled. 

She explained that she had been to the emergency room a few times before for abscessed 

teeth but that she could not afford to go at the time of the offense. 

Jerry Kimsey, Jeremy Kimsey’s father, confirmed that Lane had an abscessed 

tooth at the time of the offense that was causing her visible discomfort, including 
-4-

swelling in her face. He noted that the pain made Lane “very upset” and that she 

“couldn’t hardly function.” 

Evans testified that on February 10, 2013, Martin asked him to drive her to the 

Walgreens Pharmacy in Cleveland. When they arrived, Martin went inside to fill her 

hydrocodone prescription, returned to the truck, and counted out the pills she planned to 

give to Lane. They remained in the parking lot for around fifteen minutes before Kimsey 

and Lane arrived. He said that Kimsey got in the backseat of his truck, and Martin then 

handed Kimsey the medicine before she got in the car to visit with Lane. Evans then 

showed Kimsey photographs on his phone for several minutes until Martin returned. 

Immediately after Evans drove out of the parking lot, he and Martin were pulled over by 

Agent Fairbanks. Evans testified that he consented to a search of his truck and even 

pointed out various compartments that Agent Fairbanks missed because “[he] wanted 

[Agent Fairbanks] to know [he] wasn’t no drug dealer, or Ms. Martin wasn’t no drug 

dealer.” He also explained that he had been prescribed hydrocodone after having two 

back surgeries and that two of his prescription pills were in the pill holder in his front 

pocket at the time of the offense. He denied that he ever gave hydrocodone pills to 

Kimsey. However, on cross-examination, he admitted that he knew they were meeting 

Lane on the day of the offense so that Martin could give Lane some of her prescription 

hydrocodone pills for a toothache. 

Based on the foregoing evidence, the jury acquitted Martin and Evans of the 

conspiracy to sell or deliver a controlled substance charged in Count 1. However, in 

Count 2, the jury convicted both Martin and Evans of the lesser-included offense of 

casual exchange of a controlled substance, a Class A misdemeanor. The jury also 

imposed a $2,000 fine against Martin and a $750 fine against Evans. The trial court then 

set the matter for sentencing and a hearing took place on May 11, 2015.

Sentencing Hearing. At the hearing, the State entered Martin’s presentence 

report into evidence. The report reflected that Martin had two convictions for 

prescription fraud, a Class D felony, in McMinn County from January and February 

2011, as well as pending charges in Polk County for driving under the influence (DUI) 

and simple possession. The State introduced certified copies of Martin’s 2011 

convictions into evidence without objection.

Evans testified that he and Martin had been living together over three years. He 

explained that Martin had a number of medical issues, including scoliosis, a steel plate in 

her face, a rod in her neck, and epileptic seizures. He noted that Martin was constantly in 

pain and that she had sought treatment at a pain management clinic in the past but not 

recently.
-5-

Testifying on her own behalf, Martin explained that she was born with scoliosis, 

had undergone open-heart surgery at age four, and had undergone multiple foot surgeries. 

She further testified that there was a steel plate placed in the left side of her face and a 

steel rod placed in her neck due to injuries she sustained in an automobile accident 

twenty years prior. She stated that these injuries still caused her discomfort and that she 

occasionally suffered from epileptic seizures. Martin also noted that she suffered from 

mental health issues, and she confirmed that she received monthly disability checks based 

on her physical and mental ailments. Martin conceded that she had two prior convictions 

for prescription fraud. However, she claimed that the prescriptions at issue in these 

offenses were for her mother-in-law at the time and her daughter and denied engaging in 

fraud on either occasion. She testified that she nonetheless pled guilty to these offenses 

because she “just didn’t have the money to fight it” and that she received two years’ 

probation for her convictions. 

In regard to her pending charge for DUI, she explained that she was arrested in 

Polk County in the fall of 2013 when she drove after consuming two Soma pills, a 

prescription muscle relaxer, that she had left over from an old prescription. On crossexamination, Martin admitted that she knew not to drive after taking Somas, but she 

noted that she had called her father to pick her up from the store shortly before she was 

arrested for DUI. Though Martin denied taking any other medications on the day of her 

arrest, she conceded that her toxicology report revealed several additional medications in 

her system. On redirect examination, she noted that she had been taking several 

prescribed medications on a regular basis for years.

Jeremy Kimsey, who elected not to testified at trial, testified at the hearing that 

Martin, rather than Evans, had given him the hydrocodone tablets found on his person at 

the time of the offense. He admitted that his prior statement to law enforcement that 

Evans handed him the pills was a lie. He said that he lied in order to keep Martin from 

getting into trouble because he knew she had been in trouble before.

Following argument from counsel, the trial court sentenced Martin to eleven 

months and twenty-nine days, suspended to supervised probation after sixty days of 

continuous confinement. The court further ordered that Martin undergo an alcohol and 

drug assessment and pay court costs in addition to the $2,000 fine imposed by the jury. 

In denying full probation, the trial court reasoned that Martin’s credibility was 

undermined by her attempt to minimize her involvement in her prior prescription fraud 

convictions. Furthermore, though the court acknowledged Martin’s history of health 

problems, it ultimately found that not imposing confinement would depreciate the 

seriousness of the offense. The court noted that sharing prescription pills with family 

members was “reckless and potentially life threatening” and believed that Martin needed 

to be sent a strong deterrent.
-6-

On August 14, 2015, Martin filed a motion to reconsider sentencing, which the 

court interpreted as a motion for a reduction of sentence under Tennessee Rule of 

Criminal Procedure 35. The motion asserted that it would be “dangerous” for Martin to 

be incarcerated for a sixty-day period due to her significant health issues. A hearing on 

the motion took place on August 21, 2015, at which time Martin introduced a letter from

Lori Firestone, a licensed nurse practitioner, that stated the following:

This letter is to verify that Dava M. Martin has been under my care 

for the treatment of Major Depressive Disorder, Recurrent Episode, Severe, 

296.33 (F33.2) (Active) and Generalized Anxiety Disorder, 300.02 (F41.1) 

(Active). Currently, she is on Paxil, Xanax, and Remeron. She has been 

advised of the tapering of Xanax prior to incarceration, but she will need to 

continue the Paxil and Remeron. 

No additional proof was presented. After hearing argument from counsel, the trial court 

orally denied Martin’s motion. The court reasoned that Firestone’s letter did not advise 

against incarceration and that Martin had otherwise failed to show a change in 

circumstances sufficient to warrant modification of Martin’s original sentence. A written 

order denying relief was subsequently entered on January 19, 2016, nunc pro tunc August 

21, 2015. Martin filed a timely notice of appeal on September 15, 2015.

ANALYSIS

On appeal, Martin asserts that the court erred in denying her motion for a reduced 

sentence. For the first time on appeal, she argues that the trial court improperly 

determined that confinement was necessary based the seriousness of the offense and the 

need for deterrence and that she should have received a fully probated sentence. The 

State responds that these arguments are waived because Martin failed to raise the issues 

in a direct appeal of her sentence or in her Rule 35 motion. Alternatively, the State 

contends that the trial court did not abuse its discretion in declining to reduce Martin’s 

sentence under Rule 35.

Rule 35 provides that “[t]he trial court may reduce a sentence upon motion filed 

within 120 days after the date the sentence is imposed or probation is revoked.” Tenn. R. 

Crim. P. 35(a). However, “[t]he court may reduce a sentence only to one the court could 

have originally imposed.” Tenn. R. Crim. P. 35(b). The trial court may deny Rule 35 

relief without conducting a hearing. Tenn. R. Crim. P. 35(c). “The intent of this rule is 

to allow modification only in circumstances where an alteration of the sentence may be 

proper in the interests of justice.” Tenn. R. Crim. P. 35, Advisory Comm’n Cmts.; see 

also State v. Hodges, 815 S.W.2d 151, 154 (Tenn. 1991). As such, Rule 35 relief is 

generally inapt when the defendant has “failed to show that post-sentencing information 
-7-

or developments ha[ve] arisen to warrant a reduction of his sentence in the interest of 

justice.” State v. McDonald, 893 S.W.2d 945, 948 (Tenn. Crim. App. 1994); see also 

State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006) (stating in dicta that the Rule 35 

standard of review is “whether post-sentencing information or developments have arisen 

that warrant an alteration in the interest of justice”).

An appeal of a Rule 35 motion to reduce sentence is “separate and distinct” from 

an appeal seeking review of the original judgment, including the initial sentence imposed. 

Ruiz, 204 S.W.3d at 777 (citing State v. Bilbrey, 816 S.W.2d 71, 75 (Tenn. Crim. App. 

1991)). “[A] trial court’s denial of a Rule 35 motion is not the equivalent of imposing a 

sentence but simply reaffirms the sentence previously imposed.” Id. Unlike in a direct 

appeal of the sentence imposed, the standard of review in a Rule 35 appeal is whether the 

trial court abused its discretion when acting upon the motion. State v. Irick, 861 S.W.2d 

375, 376 (Tenn. Crim. App. 1993). The trial court abuses its discretion “only when the 

trial court has applied an incorrect legal standard, or has reached a decision which is 

illogical or unreasonable and causes an injustice to the party complaining.” Ruiz, 204 

S.W.3d at 778.

As a preliminary matter, we note that at the Rule 35 motion hearing, the trial court 

allowed Martin to incorporate by reference all of the proof presented at trial and at 

sentencing. In doing so, the court allowed Martin to treat her Rule 35 motion as a direct 

appeal of the original sentence imposed by the trial court. However, as previously noted, 

Rule 35 specifically examines whether a change in circumstances that occurred after the 

initial sentence was imposed would warrant a reduction in the interest of justice. See

Ruiz, 204 S.W.3d at 778 (citing McDonald, 893 S.W.2d at 948). Thus, the trial court 

erred to the extent that it relied on proof presented prior to the entry of the judgment of 

conviction in its disposition of Martin’s Rule 35 motion. Despite this error, the trial court 

did not abuse its discretion in denying relief. The sole claim asserted in Martin’s Rule 35 

motion was that “she has significant health issues that would make it dangerous for her to 

be incarcerated for a period of sixty days.” In denying Martin’s Rule 35 motion for a 

reduced sentence, the trial court reasoned that Firestone’s letter did not advise against 

incarceration and that Martin otherwise failed to present any proof demonstrating that 

incarceration posed a danger to Martin’s health. Therefore, the court determined that 

Martin did not establish a change in circumstances that would warrant a modification of 

her original sentence in the interests of justice. See Ruiz, 204 S.W.3d at 778. Nothing in 

the record reflects that the trial court abused its discretion in declining to reduce Martin’s 

sentence under Tennessee Rule of Criminal Procedure 35.

Now, Martin claims for the first time that the trial court improperly relied on the 

seriousness of the offense and deterrence to support a sentence of confinement. As noted 

by the State, these issues were not previously raised in Martin’s Rule 35 motion or argued 
-8-

at the motion hearing and, consequently, the issues are waived. See State v. Alvarado, 

961 S.W.2d 136, 153 (Tenn. Crim. App. 1996) (stating that “[o]rdinarily, issues raised for 

the first time on appeal are waived”); State v. Turner, 919 S.W.2d 346, 356-57 (Tenn. 

Crim. App. 1995) (“A party may not raise an issue for the first time in the appellate 

court.”). In addition, Martin’s claims relate specifically to the trial court’s allegedly 

improper sentencing at the sentencing hearing, including the court’s failure to articulate a 

valid basis for denying full probation. The appropriate mechanism for reconsideration of 

Martin’s original sentence is a direct appeal under Tennessee Rule of Appellate

Procedure 3. Here, Martin chose not to file a direct appeal of her sentence, and her 

arguments on appeal do not otherwise constitute a proper basis for Rule 35 relief. See

Bilbrey, 816 S.W.2d at 75 (“A defendant who fails to appeal from the entry of a 

judgment of conviction, including the sentence, but who elects to appeal after a Rule 

35 motion to reduce sentence has been decided, runs the risk of having failed to preserve 

any issue regarding the validity of the judgment, being left with only those properly 

raised in the Rule 35 motion.”); see also State v. Kristopher Lee Colbert, No. M2012-

00225-CCA-R3-CD, 2012 WL 5543520, at *4 (Tenn. Crim. App. Nov. 9, 2012). 

Finally, we note that even had Martin’s claims been properly raised, she would 

still not be entitled to relief. Tennessee Code Annotated section 40-35-302(b), which 

governs misdemeanor sentencing, requires a trial court to impose a sentence consistent 

with the purposes and principles of sentencing. T.C.A. § 40-35-302(b). However, trial 

courts are granted considerable discretion and flexibility in misdemeanor sentencing 

determinations, and defendants convicted of misdemeanors are not presumed eligible for 

alternative sentencing. State v. Troutman, 979 S.W.2d 271, 273 (Tenn. 1998); see also

State v. Combs, 945 S.W.2d 770, 773-74 (Tenn. Crim. App. 1996); State v. Williams, 

914 S.W.2d 940, 949 (Tenn. Crim. App. 1995). Likewise, defendants convicted of 

misdemeanors are not “entitled to the presumption of a minimum sentence.” State v. 

Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App. 1994). The standard of review applied 

in felony sentences, an abuse of discretion standard with a presumption of 

reasonableness, has been applied similarly to misdemeanor sentencing determinations. 

See, e.g., State v. King, 432 S.W.3d 316, 324 (Tenn. 2014) (citing State v. Bise, 380 

S.W.3d 682, 706-07 (Tenn. 2012)); State v. Michael Glen Walsh, No. E2012-00805-

CCA-R3-CD, 2013 WL 1636661, at *4 (Tenn. Crim. App. Apr. 17, 2013); State v. Sue 

Ann Christopher, No. E2012-01090-CCA-R3-CD, 2013 WL 1088341, at *7 (Tenn. Crim. 

App. Mar. 14, 2013). 

Here, the offense for which Martin was convicted was a Class A misdemeanor, 

which carries a maximum sentence of eleven months and twenty-nine days. See T.C.A. 

§§ 39-17-118(c)(1); 40-35-11(e)(1). Thus, Martin’s sentence was within the appropriate 

statutory range. Furthermore, though it was not required to make findings on the record 

supporting its imposition of a misdemeanor sentence, see Troutman, 979 S.W.2d at 274, 
-9-

the trial court in the case at bar nonetheless stated at the sentencing hearing that Martin’s 

criminal conduct was “reckless and potentially life threatening” and that a sentence of 

full probation would depreciate the seriousness of her offense. The court considered 

Martin’s various health issues but discredited her testimony regarding her prior 

convictions. The court noted that Martin “need[ed] to be sent a strong deterrent” and 

found that sixty days’ incarceration was appropriate based on the record as a whole. 

Though Martin argues that Martin’s offense was “not an offense which deserves a harsh 

punishment,” we conclude that the trial court considered the appropriate purposes and 

principles of sentencing in ordering Martin to serve sixty days of confinement and the 

remainder of her sentence on probation. Accordingly, she is not entitled to relief.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed.

_________________________________ 

CAMILLE R. McMULLEN, JUDGE