IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 18, 2002 Session

STATE OF TENNESSEE v. SAMMIE DON LOGUE

Direct Appeal from the Circuit Court for Maury County

No. 11349 Stella L. Hargrove, Judge

No. M2001-02497-CCA-R3-CD - Filed April 28, 2003

The Maury County Grand Jury indicted the Defendant for selling less than 0.5 grams of cocaine, and

following a trial, a Maury County jury convicted the Defendant of the casual exchange of a

controlled substance. The trial court sentenced him to eleven months, twenty-nine days’

incarceration and suspended all but forty-five days of the sentence. On appeal, the Defendant argues

that the trial court erred by refusing to allow him to introduce evidence concerning the source of the

cocaine and by denying him full probation. We find no error by the trial court and therefore affirm

the Defendant’s conviction and sentence. 

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

ROBERT W.WEDEMEYER,J., delivered the opinion of the court, in which THOMAS T.WOODALL and

JAMES CURWOOD WITT, JR., JJ., joined.

John S. Colley, III, Columbia, Tennessee, for the appellant, Sammie Don Logue.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney

General; T. Michael Bottoms, District Attorney General; Lawrence R. Nickell, Jr., and Daniel J.

Runde, Assistant District Attorney Generals, for the appellee, State of Tennessee.

OPINION

 The following evidence was presented at the Defendant’s trial: Ken York, city manager for

the City of Spring Hill, testified that records from his office indicated that the Defendant was

employed as a police patrol officer for the Spring Hill Police Department from 1995 until he resigned

in 1999. York stated that as a police officer, the Defendant was required to attend forty hours of

training each year. 

James David Shannon, an investigator for the Maury County Drug Task Force, testified that

he was involved in the investigation of this case. He reported that a confidential informant was used

in this case and explained that a confidential informant is someone who has “past criminal charges
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that they might need to work off.” He also explained that confidential informants who cooperate

with police are not prosecuted for their own crimes. Shannon testified that the confidential

informant in this case was Jennifer Arango. He stated that while he was working undercover,

Arango twice sold him quantities of marijuana, first six grams and later one ounce. He reported that

after her arrest, Arango agreed to cooperate with the police in exchange for their agreement not to

prosecute her for the sales. Shannon also agreed to pay Arango for successful transactions, and he

stated that he believed he paid her between $50 and $100 for the transaction involving the

Defendant. 

In her capacity as a confidential informant, Arango first assisted the authorities in making

two arrests in cases involving marijuana. Following these two arrests, Arango telephoned Shannon

and told him that the Defendant also sold marijuana. Shannon stated that he was familiar with the

Defendant as a police officer in Spring Hill, and he also knew that the Defendant was applying for

a position as a police officer for the City of Columbia. He recalled that he was therefore extremely

surprised to hear Arango mention the Defendant’s name. Shannon stated that at the time Arango

named the Defendant as a potential suspect, the Defendant was working as a security guard at a

McDonald’s restaurant. 

At approximately 10:00 p.m. on September 24, 1999, Arango was outfitted with a body wire

and sent to meet the Defendant at the McDonald’s where he worked. She was expected to purchase

one ounce of marijuana from the Defendant for $100. Shannon testified that prior to her leaving,

officers searched Arango’s car and purse, and the officers were satisfied that Arango was not in

possession of marijuana at the time she left to meet the Defendant. Two officers were already

stationed at the McDonald’s waiting for Arango to arrive. When Arango arrived, she met and spoke

with the Defendant, but he did not sell her marijuana at that time. An audiotape was made of the

meeting. Following Arango’s meeting with the Defendant, Shannon and Arango met at Shannon’s

office, and he told Arango to inform him of any further contact she had with the Defendant.

On September 29, 1999, at approximately 4:20 p.m., Arango telephoned Shannon, and

Shannon instructed her to return to his office. There, officers again searched her purse and the

vehicle that she was driving, which was a leased car. On this occasion, a wire was placed inside

Arango’s vehicle. Arango planned to meet the Defendant at a Shoney’s parking lot and buy a

quantity of cocaine for $50. Four undercover officers, in two separate vehicles, were present at the

scene: Shannon and another officer listened to and recorded the transaction on audiotape in one

vehicle. Two other officers were also present in a second vehicle to videotape the transaction.

Shannon testified that the Defendant arrived at the scene at approximately 5:00 p.m., and the

transaction took place. After the transaction, the officers followed Arango back to the Drug Task

Force office, and Arango gave them a plastic baggie containing cocaine. The officers searched

Arango and did not find the $50 that they had given her to complete the transaction. 

Shannon testified that he later presented the case to the Maury County Grand Jury for its

consideration. He explained that he did not arrest the Defendant at the time of the transaction

because if he had done so, he would not have been able to use Arango as a confidential informant
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again. Shannon reported that the Defendant was arrested on November 30, 1999, after the Maury

County Grand Jury returned an indictment against him. Shannon stated that after his arrest, the

Defendant was read his Miranda rights and was interviewed. The interview was videotaped and

audiotaped. 

Shannon testified that during the interview, the Defendant never claimed to have had a

romantic relationship or sexual intercourse with Arango. He also testified that the Defendant did not

tell officers during his interview that Arango had threatened to accuse him of rape unless he procured

drugs for her. According to Shannon, the Defendant in no way claimed that he had been compelled

to make a drug sale. Shannon further testified that he did not believe that the Defendant told officers

that his arrest was a result of a conspiracy involving other officers on the police force. According

to Shannon, the Defendant instead told officers that he had been drinking, that he did not remember

the transaction, and that he did not even know the girl who met him in the Shoney’s parking lot.

Shannon stated, however, that the Defendant later admitted that he knew Arango as a person who

passed through the McDonald’s parking lot.

 

Shannon Allen testified that she worked for the City of Columbia Drug Task Force. She

stated that her general duties included filing paperwork, typing, answering phones, and general

accounting. She reported that she had transcribed the audiotapes in this case.

The transcriptions of the recorded conversations between Arango and the Defendant on

September 24 and 29, 1999 were introduced as an exhibit at trial. During the conversation on

September 24, 1999, the Defendant is quoted as saying: “Now I’m gonna trust you now, don’t you

goddamn sell me out. I’ll f__king kill you. I’ll kill you. I’ll never sell to you again. Well I’m not

selling to you[;] I’m just kinda the middle man.” During the conversation on September 29, 1999,

the Defendant, presumably commenting about the cocaine, is quoted as follows: “It’s good [’]cause,

I had some that he sold my sister not to[o] long ago.” During this conversation, he also told Arango

that the source of the cocaine is “closely connected with [him] and someone in [his] family.” He

offered to “hook [Arango] up with” the source and stated, “I’ll talk to him and see if I can’t hook you

up with like a [. . .] bigger wad . . . .” The Defendant further informed Arango to “put [the cocaine]

on a . . . joint” to “get a good buzz going.” 

Donna Flowers, a forensic chemist employed by the Tennessee Bureau of Investigations

(T.B.I.) Crime Laboratory in Nashville, testified that she had been employed by the T.B.I. for twelve

years. She stated that she analyzed the substance which was transferred from the Defendant to

Arango in this case. She reported that the substance was cocaine, a Schedule II controlled substance,

and she stated that it weighed 0.4 grams.

William Dole, an employee of the Maury County Sheriff’s Department, testified that he was

assigned to the Drug Task Force. He reported that he made a videotape of the transaction in this case

that took place in the Shoney’s parking lot. He stated that at the time, Agent Tommy Goetz was with

him. Dole testified that after the transaction, he copied the videotape that he had recorded on his

Sony 8mm video recorder onto a VHS tape so that it would be easier to view. He stated that he had
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been unable to locate the original 8mm tape on the night prior to trial; however, he maintained that

the VHS tape was a true and accurate copy of the original tape and that it depicted what he had

witnessed. The tape was then admitted into evidence.

Jennifer Arango testified that she was twenty-one years old at the time of trial and that she

was twenty years old in September 1999. She stated that she was divorced and had a three-year-old

daughter. She testified that in September 1999, she was working in a cafeteria at the Saturn plant.

Arango testified that she was twice caught selling marijuana to Officer Shannon in 1999. She stated

that Shannon offered to drop all charges against her if she agreed to work for him. She stated that

she was paid $50 for her work in the Defendant’s case. She also reported that she was not being paid

to testify in court. 

Arango testified that she met the Defendant when he worked as a security guard at

McDonald’s. She stated that she and her friends often drove through the parking lot, and she

testified that she often spoke with the Defendant while she was there. She maintained that she never

dated the Defendant or engaged in sexual relations with him. She also maintained that she never

visited the Defendant’s house and that he never visited hers. When asked whether the subject of

drugs arose during her conversations with the Defendant, Arango replied, “ [W]e talked about just

smoking [marijuana] and he had mentioned that him [sic] and a friend used to go out to Nashville

and hangout and smoke and drink.” 

Arango recalled that she mentioned the Defendant’s name to Officer Shannon in late August

or early September 1999 after he asked her whether she knew of anyone else who sold drugs or had

offered them to her. She stated that she was aware at the time that the Defendant had previously

been a police officer. She also stated that she believed the Defendant was a drug user, rather than

a drug dealer. Arango testified that Shannon instructed her to contact the Defendant, and a couple

of nights later, she drove through the McDonald’s parking lot and spoke with the Defendant, trying

to obtain marijuana. According to Arango, the Defendant told her “he’d work on it.” Arango

testified that she asked the Defendant how she could contact him, and he gave her his pager number.

Arango stated that she and the Defendant later arranged to meet on September 24, 1999 at

McDonald’s so that she could buy an ounce of marijuana. She recalled that she first contacted

Officer Shannon and then went to the Drug Task Force office, where her car was searched and where

she was wired. She stated that she was provided with $100 to make her purchase. Arango then

drove to McDonald’s, followed by undercover officers, and met the Defendant, who got into her car.

Arango testified that the Defendant told her that the man who was to have supplied her with

marijuana had been to McDonald’s and had already left. A tape of this meeting was played for the

jury. 

A tape of the transaction that led to the Defendant’s arrest was next played for the jury.

Afterwards, Arango commented on the tape. She testified that on September 29, 1999, she met the

Defendant in a Shoney’s parking lot, where he gave her a bag of cocaine in exchange for $50. She

stated that as the Defendant handed her the bag, he told her, “It’s good because I had some that he
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sold my sister . . . .” Arango testified that following the transaction, she returned to the Drug Task

Force office, where the wire that had been previously placed in her car was removed. Arango stated

that she had never bought drugs from the Defendant before September 29, and she denied that she

coerced the Defendant in any way to make the sale on September 29. 

Following Arango’s testimony, several witnesses testified on the Defendant’s behalf. Mike

Prince, the Defendant’s friend and former supervisor at McDonald’s, testified that the Defendant had

no propensity to use or sell illegal drugs. He stated that he believed that the Defendant’s recorded

conversations with Arango appeared to be merely “fun conversations” and explained that the

Defendant “likes to carry on a little bit.” 

Cordell McKissack, a police officer with the Spring Hill Police Department, testified that he

and the Defendant formerly worked as partners on the same shift. He testified that he saw no

inclination for the Defendant to use or sell illegal drugs during the time that they worked together.

He stated that when he and the Defendant “were messing around,” the Defendant spoke in a similar

manner to the way he had spoken in his recorded conversations with Arango, and he stated that the

Defendant had a good knowledge from his experience as a police officer of how drug dealers talk

and how drug transactions occur. However, he also admitted that at least portions of the transcripts

of the Defendant’s recorded conversations did not appear to be jokes. Finally, McKissack testified

that he was aware that a fellow police officer had engaged in an extramarital affair with the

Defendant’s wife and that the Defendant and his wife had obtained a divorce. 

Kimberly Duckett testified that she was employed as a billing specialist by Family Health

Group. She stated that she had known the Defendant for three to four years and reported that she

was the Defendant’s platonic roommate from 1998 until 1999, at the time of his arrest in this case.

Duckett testified that she never observed any inclination on the Defendant’s part to use or sell illegal

drugs, and she stated that she was shocked by his arrest. She also testified that the Defendant

“bullcrapped a lot, especially if he was trying to pick up a girl.” 

Richard Farris, an employee of First Farmers and Merchants Bank, testified that he had

known the Defendant since elementary school. He stated that to his knowledge, during the period

surrounding the Defendant’s arrest, “[t]here was nothing . . . to indicate . . . that he was using or

selling drugs.” Farris testified that he was shocked by the Defendant’s arrest. 

Jerry Kennedy, an automobile dealer, testified that he had known the Defendant since the

Defendant’s birth and stated that he was friends with both of the Defendant’s parents. He stated that

nothing that he knew about the Defendant would lead him to suspect that the Defendant was using

or selling illegal drugs. He also testified that he was shocked by the Defendant’s arrest. Kennedy

stated that the Defendant “can bull pretty good.” 

Tommy Logue, the Defendant’s cousin, testified that he had known the Defendant his whole

life. He stated that he could not “think of a time that [he] would have suspected that” the Defendant

was using or selling drugs. When questioned about the content of the Defendant’s recorded
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conversations with Arango, Logue stated, “[The Defendant] just recently I guess, got a divorce and

. . . talking with a female, you might talk any kind of crap to, you know, move along.” 

Becky Logue, the Defendant’s sister, testified that she was an employee of Saturn. She

maintained that not only did she not suspect her brother of using or selling drugs, but she also knew

“how against [drugs] he’s been.” She stated that she had never used cocaine, that no one had

recently sold her cocaine, and that she did not know of anyone in the drug business. She reported

that she was the Defendant’s only natural sister and that although the Defendant also had step-sisters,

none of them lived in Maury County. She stated that she was shocked by the Defendant’s arrest and

thought it must have been a mistake. When questioned about the transcripts of the Defendant’s

conversations with Arango, the Defendant’s sister stated, “It sounds like him goofing off is what it

sounds like.” She also testified that during the conversations, the Defendant appeared to be

“[p]laying a bigshot, trying to impress somebody.” 

Christie Masterson testified that she was the Defendant’s girlfriend and that she had been

dating the Defendant “off and on” for almost two years at the time of trial. She stated that she never

observed any behavior on the Defendant’s part that would have led her to suspect that he was using

or selling drugs. Masterson testified that at the time of the transaction, the Defendant “was going

through a lot of problems . . . because of the divorce and the affair that his wife and former partner

had had,” and she stated that the Defendant was under a great deal of stress. 

The Defendant testified that he was thirty-five years old and that he was born in Maury

County. He stated that he had served in the United States Air Force for nine years and three months,

that he had been honorably discharged from service, and that he was a sergeant when discharged.

He testified that after serving in the United States Air Force, he returned to Columbia with his wife

and began working as a police officer for the Spring Hill Police Department. He stated that he

worked as a patrolman from 1995 until 1999, when he resigned from the police department. He

stated that he resigned because his wife became romantically involved with another police officer

with whom he worked and became pregnant. He testified that he filed a complaint with his

department, “received no concern at all from the department,” and decided he no longer wished to

be part of the department. 

The Defendant testified that he and his wife divorced in 1999. He reported that after his

divorce, he “[b]asically fell apart.” The Defendant testified that he and his wife had a five-year-old

son, of which they maintained joint custody. He also testified that his wife gave birth to a child by

his former co-worker shortly after their divorce. He indicated that he believed that members of the

Drug Task Force knew the police officer with whom his wife had had an affair and may have

initiated the undercover drug transaction to prevent him from obtaining custody of his son. 

 

The Defendant reported that after leaving the police force, he worked for a short time selling

cars, and he also worked part-time as a security officer for McDonald’s. The Defendant testified that

he first met Jennifer Arango while he was selling cars because she bought a car from one of his coworkers. He stated that he remembered her because she was “an attractive young lady.” He recalled
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that approximately a month later, Arango drove through the McDonald’s parking lot, where he

worked, and they spoke briefly. The Defendant stated that Arango and others often “cruise[d]

through” the parking lot. He testified that Arango told him that she was twenty-three years old and

that she had a young daughter. He stated that he and Arango discussed their children and the

Defendant’s relationship with his wife. 

The Defendant admitted that he had tried marijuana once in high school, but he denied ever

using drugs afterwards. He reported that he did drink alcohol. He stated that he was aware that

Arango smoked cigarettes and drank alcohol. He said that he sometimes saw Arango at a local

nightclub and that she had invited him to meet her there on occasion after his divorce. The

Defendant testified that on one occasion when he saw Arango at the club, she asked him if he

smoked marijuana, and he told her that he “didn’t really care for it.” He stated that she told him that

she smoked marijuana. He also testified that Arango had asked him a few times if he knew where

she could get marijuana, but he maintained that he told her, “I don’t know where you could get any.

I’m not familiar with anybody that’s got any around here.” 

The Defendant testified that after meeting Arango at the nightclub one evening, they left the

club together at approximately 1:30 a.m. and went to his house. He claimed that while at his house,

they engaged in consensual sexual intercourse and then went back to the club. He stated that Arango

appeared to have been “drinking quite a bit.” The Defendant claimed that a few days later, he and

Arango again had sexual intercourse. He stated that he encountered Arango while he was “driving

around,” and they drove to some property owned by his former wife’s parents, where they again had

consensual intercourse. The Defendant testified that he believed Arango began to ask him for drugs

at some point before they had intercourse a second time. 

The Defendant stated that after driving with Arango to the property owned by his former

wife’s parents, he next saw Arango at McDonald’s. He said she told him that her friend needed

some “s-h-i-t,” meaning marijuana, because her friend had “a man . . . that she had taken some drugs

from and . . . he had found out about it and he was real dangerous and she was scared of him . . . .”

The Defendant reported that Arango told him “she needed it really bad and she didn’t want anything

to happen to her friend.” He also claimed that she told him, “If you don’t get me something, I’ll go

to the police and say you raped me those nights that we had sex.” He testified that at the time, his

child custody suit was pending. The Defendant testified that he did not contact the police about

Arango’s threats because he was afraid he would lose custody of his child and because he “didn’t

trust the police at the time.” He admitted that Arango did not make any such threat during their

recorded conversations. 

The Defendant testified that in response to Arango’s threats, he initially stalled, not knowing

what to do. He stated that Arango showed up at McDonald’s three times on September 24, 1999

looking for drugs, and he told her that she “just missed the dealer,” who had left because Arango was

late. He stated that on September 29, 1999, he went to Alabama for a weekend trip. He reported that

when he returned, he found four calls from Arango on his “[c]aller ID.” He claimed that he did not

recognize the number and stated that he therefore called the number. Arango answered and asked
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him if he had “gotten her anything.” He testified that he told her he had not, and he stated that

Arango again pressured him to obtain drugs for her. 

The Defendant stated that he eventually obtained a small amount of cocaine from his

neighbor, but insisted that he did not pay for the cocaine. He explained that his neighbor had gotten

it for no cost, and she let him have it free of cost. Although the Defendant admitted that he gave the

cocaine to Arango, he maintained that he did not charge Arango for the cocaine. He admitted that

he knew it was a crime to possess or sell cocaine. However, he stated, “I just felt like I didn’t have

a choice.” The Defendant testified that after the transaction, he did not hear from Arango again. 

When asked about the language he used during his recorded conversations with Arango, the

Defendant testified that he had learned to talk like a drug dealer when he worked as a police officer.

When asked about his recorded threat to kill Arango, he stated, “I just kid around like that. It was

like a metaphor, it just flowed. I couldn’t have even told you I said it.” When asked about his

reference to his “sister” during the conversations, the Defendant testified, “I just used the word

‘sister’ because . . . of just trying to convince her it was okay. I just used ‘sister’ I guess as a

metaphor, whatever, a fake name.” He stated that none of his sisters used drugs. The Defendant

further explained that his statement that the source of the cocaine was “close” to one of his family

members was untrue, stating, “I didn’t want [Arango] to think that I was . . . going to leave there and

go straight to the police . . . .” He also explained that he told Arango that he could “hook [her] up

with . . . a [. . .] bigger wad” because he thought Arango and his source would “eventually . . . work

together . . . , and [Arango would] leave [him] alone.” He stated that he had learned from his

neighbor how to lace a marijuana cigarette with cocaine. 

The Defendant maintained that at the time of the transaction in this case, he was neither using

nor selling drugs. He stated that on the day following his arrest, he went to Baptist Centre Care and

took a drug test to show that he was not using drugs. He stated that he had applied for a job as a

police officer in Columbia and that at the time of his arrest, his application was pending. The

Defendant testified, however, that immediately after his arrest, the police department removed his

name from the hiring list. He stated that he knew that he would be required to submit to a drug test

as part of his application process and therefore could not take drugs. 

Finally, the Defendant testified that after he was arrested, he was interrogated at the Drug

Task Force office. He admitted that he did not answer some of the questions he was asked truthfully.

He stated that he told the officers that he “didn’t remember anything” and that he “may have been

drinking.” He explained that he did so because he did not have an attorney and he “felt like [the

officers] were trying to drag something out of [him] prior to [his] getting any legal advice.” He

stated that he was unaware that his interview was recorded. In addition, the Defendant admitted that

he lied in court in a prior hearing by telling the court that he had obtained the cocaine from an area

known as East Hill. He explained that he lied because he “was scared what would happen to [him

and his son] if [he] revealed the name” of his actual source. The Defendant testified that he was

aware that perjury is a crime. 
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I. EVIDENCE CONCERNING THE SOURCE OF THE COCAINE

A. Admissibility of the Evidence

The Defendant first argues that the trial court erred by refusing to allow evidence concerning

the source of the cocaine which he transferred to Jennifer Arango. During redirect examination, the

Defendant testified that he possessed photographs taken during the morning hours on New Year’s

Eve 2000 of his neighbor and the source of her drugs leaving his neighbor’s house. He testified that

the photographs depicted the source’s car and license plate. He testified that the photographs also

depicted his neighbor looking both ways as the source left her house. 

In a jury-out hearing following this testimony, the defense stated that the Drug Task Force

maintained a file regarding the source of cocaine, who was “one of the larger drug dealers, cocaine

dealers in Columbia,” and the State confirmed that the file existed. The defense attempted to

introduce the photographs and the file into evidence. It also stated that it wished to subpoena an

agent from the Drug Task Force to testify concerning the file. The State argued that the evidence

should not be introduced because the photographs did not confirm that a drug transaction actually

occurred on the date that the photographs were taken, stating, “[T]he pictures do nothing more than

to show that [the source has] gone in and out of [the neighbor’s] house.” The Defendant admitted

during the jury-out hearing that he never actually saw the source provide his neighbor with cocaine,

but he stated, “I was on the phone with her when she said he brought me some stuff.” 

The defense argued that it wished to introduce the photographs because the Statehad attacked

the Defendant’s credibility, emphasizing that the Defendant had presented three different versions

of where he had obtained the cocaine in this case. The Defendant testified that he first told officers

he did not know where he had gotten the cocaine and that he then told the court that he had obtained

it from someone in the East Hill area. However, at his trial, the Defendant maintained that he

obtained the cocaine from his neighbor, who in turn had obtained it from the drug dealer depicted

in the photographs. The Defendant thus sought to introduce the photographs to corroborate his

testimony at trial concerning the source of the drugs. The court ruled against the Defendant, stating,

“We’re going too far afield in this case.” The defense then requested that a copy of the Drug Task

Force file concerning the alleged source of the cocaine be filed under seal. 

The Tennessee Rules of Evidence state that all relevant evidence is generally admissible.

Tenn. R. Evid. 402. Relevant evidence is defined as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tenn. R. Evid. 401. However, “although relevant,

evidence may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste

of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403. As a general matter,

the admissibility of the evidence rests within the discretion of the trial court. State v. Sheline, 955

S.W.2d 42, 46 (Tenn. 1997).
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We conclude that the trial court did not abuse its discretion by refusing to admit evidence

concerning the initial source of the cocaine that the Defendant later provided to Arango. The

Defendant was convicted of the casual exchange of a controlled substance. The source of the

controlled substance is irrelevant as to the Defendant’s guilt. Furthermore, the relevance of the

evidence with regard to the Defendant’s credibility is, at best, questionable. The photographs and

Drug Task Force file, viewed in a light most favorable to the Defendant, merely show that a known

drug dealer was seen walking in and out of the Defendant’s neighbor’s home. No direct evidence

was offered to show that the dealer ever sold cocaine to the Defendant’s neighbor or that the

neighbor later provided the Defendant with the cocaine. The evidence was simply not probative of

any determinative issue in this case. Assuming, however, that this circumstantial evidence was

relevant and probative, we conclude that “its probative value was substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403.

B. Offer of Proof

The Defendant further argues that the trial court erred by denying him the opportunity to

make an offer of proof concerning this issue. Specifically, he argues that he should have been

allowed to subpoena an agent from the Drug Task Force to testify concerning the file maintained by

the Drug Task Force on the alleged source of the cocaine. He also contends that the trial court

should have allowed him to place the file under seal in the record for appellate review. The State

counters that the Defendant was indeed allowed to make an offer of proof concerning this issue. 

The record reveals that the trial court did allow the Defendant to make an offer of proof

concerning this issue. As we have previously stated, following the Defendant’s testimonyon redirect

examination that he possessed photographs of the source of the cocaine leaving his neighbor’s home,

the trial court held a hearing outside of the presence of the jury to determine the admissibility of

evidence concerning this issue. During the jury-out hearing, the Defendant was allowed to testify

on the record about his knowledge of the source’s involvement as a drug supplier with his neighbor,

and he admitted that he had not seen the source actually transfer any cocaine to his neighbor. The

contested photographs were also marked for identification only during the hearing and are thus

included in the record on appeal. However, the Defendant was not allowed to make an offer of proof

concerning the Drug Task Force file on the alleged source of the cocaine, and he was not allowed

to call a Drug Task Force agent to testify regarding the file. Although the State admitted that the file

existed, neither party was privy to the actual contents of the file. The trial court ruled that to allow

the defense to explore this evidence would be “going too far afield” from relevant matters. 

“[C]ourts are required, in appropriate circumstances, to allow offers of proof when evidence

is excluded so as to enable consideration of the issue on appeal.” Alley v. State, 882 S.W.2d 810,

815-16 (Tenn. Crim. App. 1994); see also State v. Goad, 707 S.W.2d 846, 852 (Tenn. 1986) (stating

that “[i]n order for an appellate court to review a record of excluded evidence, it is fundamental that

such evidence be placed in the record in some manner”). A second purpose for an offer of proof is

to “inform[] the trial court what the party intends to prove so that the court may rule intelligently.”
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Alley, 882 S.W.2d at 815. Appellants who challenge rulings excluding evidence must make an offer

of proof “unless the substance of the evidence is otherwise apparent.” Id. at 815. 

An appellate court may find that a trial court erred in excluding evidence only if a party’s

substantial rights were affected and an offer of proof is contained in the record. Tenn. R. Evid.

103(a)(2). This court has stated that “[i]n circumstances in which it is obvious from the record that

the proffered evidence could, under no circumstances, be relevant to the issues, a trial court’s refusal

to grant an offer of proof is not error.” Alley, 882 S.W.2d at 816. “However, if the obvious

incompetence or irrelevance is not readily apparent from the record, it is error to exclude any

reasonable offer which demonstrates the relevance and general import of the excluded evidence.”

Id.

We conclude that the trial court did not err by refusing to allow the Defendant to place a copy

of the file maintained by the Drug Task Force on the alleged source of the cocaine under seal for

appellate purposes and by refusing to allow the Defendant to subpoena a Drug Task Force agent to

testify concerning the contents of the file. As we have previously stated, the contents of the file are

irrelevant as to the Defendant’s guilt or innocence. Furthermore, as we have noted, the relevance

of this evidence with regard to the Defendant’s credibility is, at best, questionable. Even if the file

had demonstrated that the alleged source was a convicted drug dealer and even if the file had

established a strong link between the alleged source and the Defendant’s neighbor, it would not have

substantiated the Defendant’s claim that he obtained the cocaine in this case from his neighbor. The

file was not a file concerning the Defendant’s neighbor, but rather a person with whom she was

allegedly acquainted. 

Finally, we conclude that even assuming that the trial court did err by refusing to allow

evidence concerning the source of the cocaine which the Defendant transferred to Jennifer Arango

or by refusing to allow an offer of proof regarding the Drug Task Force file, any such error was

harmless. See Tenn. R. App. P. 36(a); Tenn. R. Crim. P. 52(a). The Defendant admitted to facts

constituting a casual exchange of a controlled substance, see Tenn. Code Ann. § 39-17-418 (stating

that “[i]t is an offense for a person to knowingly possess or casually exchange a controlled

substance”), and the jury convicted him of the casual exchange of a controlled substance. We are

unconvinced that admission of the contested evidence would have affected the result of the trial on

the merits, see Tenn. R. Crim. P. 52(a), or that the Defendant’s substantial rights were affected by

the trial court’s refusal to allow a further offer of proof concerning the Drug Task Force file. See

Tenn. R. Evid. 103(a). 

 

II. SENTENCING

The Defendant next argues the trial court erred by failing to grant him full probation. As

previously stated, the trial court sentenced the Defendant to eleven months, twenty-nine days’

incarceration and suspended all but forty-five days of the sentence. The crime of which the
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Defendant was convicted in this case is a Class A misdemeanor. See Tenn. Code Ann. § 39-17-

418(c). An appropriate sentence for a Class A misdemeanor is “not greater than eleven . . . months[,]

twenty-nine . . . days . . . , unless otherwise provided by statute.” Id. § 40-35-111(e)(1). 

When a criminal defendant challenges the length, range, or manner of service of a sentence,

the reviewing court must conduct a de novo review of the sentence with a presumption that the

determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). A trial court

need only consider the principles of sentencing and the enhancement and mitigating factors in order

to comply with the legislative mandates of the misdemeanor sentencing statute. Id. If our review

reflects that the trial court followed the statutory sentencing procedure, that the court imposed a

lawful sentence after having given due consideration and proper weight to the factors and principles

set out under the sentencing law, and that the trial court’s findings of fact are adequately supported

by the record, then we may not modify the sentence “even if we would have preferred a different

result.” State v. Fletcher, 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991). The defendant bears the

burden of showing the impropriety of the sentence imposed. State v. Ashby, 823 S.W.2d 166, 169

(Tenn. 1991). 

Misdemeanor sentencing is controlled by Tennessee Code Annotated § 40-35-302, which

provides in part that the trial court shall impose a specific sentence consistent with the purposes and

principles of the 1989 Criminal Sentencing Reform Act. Tenn. Code Ann. § 40-35-302(b); State v.

Palmer, 902 S.W.2d 391, 394 (Tenn. 1995). Misdemeanor sentencing is designed to provide the trial

court with continuing jurisdiction and a great deal of flexibility. State v. Baker, 966 S.W.2d 429,

434 (Tenn. Crim. App. 1997). The misdemeanant, unlike the felon, is not entitled to the

presumption of a minimum sentence. State v. Creasy, 885 S.W.2d 829, 832 (Tenn. Crim. App.

1994). In determining the percentage of the sentence to be served in actual confinement, the court

must consider enhancement and mitigating factors, and a percentage of not greater than seventy-five

percent of the sentence should be fixed for service, after which the defendant becomes eligible for

“work release, furlough, trusty status and related rehabilitative programs.” Tenn. Code Ann. §

40-35-302(d). The court should not impose such percentages arbitrarily. Id. In misdemeanor

sentencing, a separate sentencing hearing is not mandatory, but the trial court is required to allow

the parties a reasonable opportunity to be heard on the question of the manner in which it is to be

served. Id. § 40-35-302(a). The Tennessee Supreme Court has held that in misdemeanor sentencing,

a trial court is not required to place specific findings on the record. State v. Troutman, 979 S.W.2d

271, 274 (Tenn. 1998).

The Defendant more specifically argues that he should have been granted full probation. The

decision to grant or deny probation lies within the discretion of the trial court. See Stiller v. State,

156 S.W.2d 617, 620 (Tenn. 1974). In determining whether to grant or deny probation, the trial

court may consider the circumstances of the offense; the defendant’s criminal record, background

and social history; the defendant’s physical and mental health; the deterrent effect on other criminal

activity; and the likelihood that probation is in the best interests of both the public and the defendant.

State v. Parker, 932 S.W.2d 945, 958 (Tenn. Crim. App. 1996). The defendant bears the burden of

establishing suitability for probation. Tenn. Code Ann. § 40-35-303(b); Ashby, 823 S.W.2d at 169.
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A transcript of the sentencing hearing is not included in the record. However, pursuant to

Rule 24(c) of the Tennessee Rules of Appellate Procedure, the Defendant filed a statement of the

evidence presented at the sentencing hearing. According to the statement, the trial court applied

mitigating factor (13), the catchall factor, but the trial court’s reasons for applying this factor are

unclear from the record. See Tenn. Code Ann. § 40-35-113(13). The court also applied

enhancement factor (15), which provides in part that the “defendant abused a position of public or

private trust . . . .” Id. § 40-35-114(15). It appears that the court applied enhancement factor (15)

because, according to the statement of evidence, the court noted that the Defendant was “an expolice officer who broke the law.” According to the statement of the evidence, the trial court also

based its denial of probation on the Defendant’s “attitude, his lack of remorse, and his failure to

accept responsibility for his actions.” The court is quoted in the statement of evidence as follows:

“If the Court had heard one smidgen of remorse or one smidgen of acceptance of responsibility from

Mr. Logue, he would walk out of the courtroom on full probation.”

Having reviewed the record, we conclude that the trial court erred by applying enhancement

factor (15) in this case. See Tenn. Code Ann. 40-35-114(15). The application of this factor requires,

first, a finding that the defendant occupied a position of either public or private trust and, second,

a finding that the defendant “abused” that position. Id.; see State v. George Dennis Fields, No.

01C01-9801-CR-00031999, 1999 Tenn. Crim. App. LEXIS 444, at *15 (Tenn. Crim. App.,

Nashville, May 6, 1999). Although this Court has noted that a police officer occupies a position of

public trust, see George Dennis Fields, 1999 Tenn. Crim. App. LEXIS 444, at **14-15; State v.

Dockery, 917 S.W.2d 258, 262-63 (Tenn. Crim. App. 1995), overruled on other grounds by

Troutman, 979 S.W.2d at 274 n.3, the record reveals that the Defendant was not a police officer at

the time of the crime in this case. 

 

However the record justifies the denial of probation on other grounds. “A defendant’s lack

of candor, credibility, and willingness to accept responsibility for his crime are relevant

considerations in determining a defendant’s potential for rehabilitation, and its lack thereof is a

proper consideration in determining whether probation or confinement is appropriate.” State v.

Carlos Bierner, No. E2001-01857-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS, at *18 (Tenn.Crim.

App., Knoxville, Sept. 13, 2002) (citing State v. Zeolia, 928 S.W.2d 457, 463 (Tenn. Crim. App.

1996); State v. Dowdy, 894 S.W.2d 301, 306 (Tenn. Crim. App. 1994); State v. Anderson, 857

S.W.2d 571, 574 (Tenn. Crim. App. 1992); State v. Bryant, 775 S.W.2d 1, 6 (Tenn. Crim. App.

1988)). Here, the trial court found that the Defendant was untruthful and unwilling to accept

responsibility for his actions, and the record supports these findings by the trial court. In fact, the

Defendant admitted at trial that he had lied during a previous court proceeding. Furthermore, we

note that the trial court apparently gave these findings great weight because it stated that if the

Defendant had shown “one smidgen of remorse or one smidgen of acceptance of responsibility,” the

court would have granted him full probation. We therefore conclude that the trial court did not abuse

its discretion by denying full probation in this case.
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Accordingly, we AFFIRM the judgment of the trial court. 

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE