IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

March 1, 2005 Session

STATE OF TENNESSEE v. ALLEN JEAN STEPHENS

Direct Appeal from the Circuit Court for Weakley County

No. CR 125-2003 William B. Acree, Jr., Judge

No. M2004-00531-CCA-R3-CD - Filed June 23, 2005

Following a jury trial, Defendant, Allen Jean Stephens, was convicted of one count of possession

of more than .5 grams of cocaine with intent to sell, a Class B felony, and one count of possession

of drug paraphernalia, a Class A misdemeanor. The trial court sentenced Defendant as a Range III,

persistent offender, to twenty-three years for the felony drug conviction, and eleven months, twenty

nine days for his misdemeanor conviction. The trial court ordered Defendant’s sentences to run

concurrently, for an effective sentence of twenty-three years. Defendant does not appeal the length

of his sentences or the sufficiency of the convicting evidence. Defendant argues however, that the

trial court erred in denying Defendant’s motion to suppress the crack cocaine found at his house

during the execution of a search warrant; and that the trial court erred in ruling admissible certain

evidence about a prior sale of crack cocaine, an offense for which Defendant was not charged.

Following a review of the record, we affirm the judgments of the trial court.

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

THOMAS T. WOODALL,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR.,

and J.C. MCLIN, JJ., joined.

J. Colin Morris, Jackson, Tennessee, for the appellant, Allen Jean Stephens.

Paul G. Summers, AttorneyGeneral and Reporter; Brent C. Cherry, Assistant Attorney General; and

Thomas A. Thomas, District Attorney General, for the appellee, the State of Tennessee. 

OPINION

I. Background

Lieutenant Sammy Liles with the Martin Police Department met with DeAndre Butler, a

confidential informant, around noon on July 11, 2003. Lieutenant Liles searched Mr. Butler and his

vehicle, furnished him a wireless transmitter, and gave him $200.00 marked money with which to
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purchase cocaine from Defendant. Lieutenant Liles followed Mr. Butler as he drove to Defendant’s

house. Mr. Butler exited his vehicle and knocked on Defendant’s front door. Mr. Butler completed

the purchase transaction, and he and Lieutenant Liles drove back to their meeting place. Lieutenant

Liles searched Mr. Butler and his vehicle, and Mr. Butler gave Lieutenant Liles the cocaine he had

purchased from Defendant.

Lieutenant Liles secured a search warrant for Defendant’s person and his residence based on

the drug sale to Mr. Butler. He and other police officers arrived at Defendant’s house around 5:20

p.m. on July 11, 2003. Defendant was standing in the front yard when the officers arrived. A search

of Defendant’s person revealed approximately $750.00 in Defendant’s back pocket. Lieutenant Liles

confirmed that a portion of the cash ($150.00) was a part of the marked bills that had been given to

Mr. Butler to purchase drugs from Defendant. Inside Defendant’s house, Lieutenant Liles found 1.5

grams of cocaine, approximately $1,300.00 in the pocket of one of Defendant’s shirts, and three

small baggies similar to those used to package drugs for sale.

On cross-examination, Lieutenant Liles said that Mr. Butler was sent to purchase an “8-ball”

of cocaine from Defendant, an amount which generally weighs in excess of three grams, or

approximately one-eighth of one ounce. 

Patty Choatie, a forensic scientist with the Tennessee Bureau of Investigation’s crime

laboratory, testified that the substance which Mr. Butler purchased from Defendant was crack

cocaine and weighed 1.6 grams. Ms. Choatie confirmed that the substance found in Defendant’s

house was also crack cocaine and weighed 1.5 grams.

II. Motion to Suppress

Defendant argues that the search warrant which led to the discovery of drugs in his house was

invalid because the affidavit supporting issuance of the warrant contained false and misleading

statements. In State v. Little, 560 S.W.2d 403 (Tenn. 1978), our Supreme Court held that:

there are two circumstances that authorize the impeachment of an affidavit sufficient

on its face, (1) a false statement made with intent to deceive the Court, whether

material or immaterial to the issue of probable cause, and (2) a false statement,

essential to the establishment of probable cause, recklesslymade. Recklessness may

be established by showing that a statement was false when made and that affiant did

not have reasonable grounds for believing it at the time.

Id. at 407.

In his affidavit, Lieutenant Liles stated:

The informant has provided information to affiant which has been corroborated and

led to the arrest and conviction of individuals involved in criminal activity. The
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confidential informant [is] known to affiant to have made a purchase of Schedule II

crack cocaine from [Defendant’s residence] from [Defendant] within the past 72

hours. The affiant searched the informant before and after the transaction. The

transaction was monitored via wireless transmitter.

As the basis of his knowledge, Lieutenant Liles stated that “said informant has been in the

said residence (537 North McCombs) and witnessed the possession of and distribution of Schedule

Two controlled substance (crack cocaine) within the past 72 hours.”

At the hearing on his motion to suppress, Defendant argued that Mr. Butler did not go inside

Defendant’s house when he bought the drugs. Lieutenant Liles testified at the hearing that Mr.

Butler “stepped into the doorway” of Defendant’s house to make the purchase. Lieutenant Liles said

that he believed that when Mr. Butler “went into the doorway, he was inside the residence.” He

conceded, however, that he did not see Mr. Butler go any further inside the house.

At the conclusion of the hearing, the trial court found that the phrase “in the said residence”

was not misleading because the affidavit did not state that the informant saw any drugs inside of

Defendant’s house other than what the informant bought. The trial court denied Defendant’s motion

to suppress stating:

The Court is satisfied that the search warrant is in accordance with the law. There

is sufficient basis of knowledge, and also sufficient description of the veracity of the

informant to satisfy the requirements of the law. Furthermore, the Court is of the

opinion that it does not make any difference whether or not the buy described in the

warrant was made at the door of the house or inside of the door. I don’t see that it

makes any difference. I think that the fact it was made at [Defendant’s] house is

sufficient, and I think it could be interpreted if one is at the front, he is in the house.

The trial court’s denial of Defendant’s motion to suppress will be upheld unless the evidence

preponderates against the trial court’s findings. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).

The application of the law to the facts found by the trial court, however, is a question of law which

this court reviews de novo. State v. Crutcher, 989 S.W.2d 295, 299 (Tenn. 1999).

Under both the federal and Tennessee constitutions, “no warrant is to be issued except upon

probable cause.” State v. Norris, 47 S.W.3d 457, 469 (Tenn. Crim. App. 2000) (citations omitted).

“A showing of probable cause requires, generally, reasonable grounds for suspicion, supported by

circumstances indicative of an illegal act.” State v. Stevens, 989 S.W.2d 290, 293 (Tenn. 1999).

“[A] finding of probable cause supporting issuance of a search warrant must be based upon evidence

included in a written and sworn affidavit.” State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998).

To establish probable cause, “an affidavit must set forth facts from which a reasonable conclusion

may be drawn that the contraband will be found in the place to be searched pursuant to the warrant.”

Norris, 47 S.W.3d at 470. A search warrant will be rendered invalid, and the subsequent search

illegal, if the search warrant “was issued upon evidence consisting in material part of willful or
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reckless misrepresentations of the applicant to the issuing magistrate, resulting in a fraudulent

procurement.” Tenn. R. Crim. P. 41(f)(3).

With these principles in mind, we find that the evidence does not preponderate against the

trial court’s finding that Lieutenant Liles’ affidavit contained sufficient probable cause to support

the issuance of a search warrant. When the source of information for an affidavit establishing

probable cause for a search warrant is a criminal informant, we must use the two-pronged AguilarSpinelli test adopted by the Tennessee Supreme Court in State v. Jacumin, 778 S.W.2d 430, 436

(Tenn. 1989). Under this test, the affidavit must demonstrate (1) a basis for the informant’s

knowledge, and (2) a basis establishing the informant’s credibility or a basis establishing that the

informant’s information is reliable. State v. Yeomans, 10 S.W.3d 293, 296 (Tenn. Crim. App. 1999)

(citations omitted).

The affidavit indicates that the confidential informant was reliable because he had provided

information in the past which was corroborated and led to the arrest of individuals involved in

criminal activity. Secondly, the informant had purchased drugs from Defendant within the past 72

hours. The use of the confidential informant for the purposes of substantiating the search warrant

was proper.

The phrase “in the said residence” may not have been the best choice of words to reflect

where the informant was standing when he observed Defendant’s possession of the drugs, and

Defendant’s distribution of the drugs to him. There is no evidence, however, that Lieutenant Liles

made the statement fraudulently or in reckless disregard for the truth. If the challenged statement

is not a “false statement made with intent to deceive the Court,” in order to grant Defendant relief,

the false statement, recklessly made, must be “essential to the establishment of probable cause.”

Little, 560 S.W.2d at 407. In order to be “essential to the establishment of probable cause,” the false

statement must be the only basis for probable cause. State v. Tidmore, 604 S.W.2d 879, 882 (Tenn.

Crim. App. 1980). Therefore, even if this statement was recklesslymade, the informant’s claim that

he bought drugs from Defendant at Defendant’s house within the appropriate time frame

independently establishes probable cause. Defendant is not entitled to relief on this issue.

III. Prejudicial Effect of Evidence of Prior Sale of Cocaine

Defendant argues that the trial court erred in admitting evidence of Mr. Butler’s purchase of

cocaine from Defendant. Defendant contends that because he was not indicted for this offense,

reference to the sale should have been excluded as “propensity” evidence under Rule 404(b) of the

Tennessee Rules of Evidence. The State argues that the evidence was relevant to prove Defendant’s

intent to possess drugs for resale, which was an essential element of the offense with which

Defendant was charged. Alternatively, Defendant argues that the probative value of the evidence

is outweighed by its unfair prejudice.

Tennessee Rule of Evidence 404(b) provides that:
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Evidence of other crimes, wrongs, or acts is not admissible to prove the character of

a person or to show action in conformity with the character trait. It may, however be

admissible for other purposes.. The conditions which must be satisfied before

allowing such evidence are:

(1) The court upon request must hold a hearing outside the jury’s presence;

(2) The court must determine that a material issue exists other than conduct

conforming with a character trait and must upon request state on the record

the material issue, the ruling, and the reasons for admitting the evidence;

(3) The court must find proof of the crime, wrong or act to be clear and

convincing; and 

(4) The court must exclude the evidence if its probative value is outweighed

by the danger of unfair prejudice.

Because the trial court substantially complied with the requirements of Rule 404(b), this Court will

review the trial court’s determinations for an abuse of discretion.

After a lengthy hearing outside the presence of the jury, the trial court found that the proof

of the prior sale of cocaine was clear and convincing, and the evidence of Defendant’s sale of

cocaine to Mr. Butlerwas probative of Defendant’s intent to possess drugs for resale, a material issue

other than showing conduct conforming to a certain character trait.

Although Rule 404(b) does not explicitly list the exceptions under which evidence of prior

crimes, wrongs or acts may be admitted, our courts have held that such evidence may be admissible

to show motive, intent, guilty knowledge, identity of the defendant, absence of mistake, or the

existence of a common scheme. See, e.g., Collard v. State, 526 S.W.2d 112, 114 (Tenn. 1975); see

also Neil P. Cohen, et al., Tennessee Law of Evidence § 4.04 [8] (4 ed. 2000). Specifically, this th

Court has previously “view[ed] the pattern of prior drug sales as being probative of the defendant’s

knowledge and intent to possess cocaine for resale . . . .” State v. Johnny Wayne Tillery, No. 01C01-

9506-CC-00182, 1998 WL 148326, at *6 (Tenn. Crim. App., Nashville, Mar. 30, 1998), perm. to

app. denied (Tenn. 1998); see also State v. Little, 854 S.W.2d 643, 649 (Tenn. Crim. App. 1992).

The trial court further stated on the record that the probative value of the evidence to

Defendant’s intent outweighed the danger of unfair prejudice. Defendant contends otherwise and

argues that the evidence was unfairly prejudicial because he was not charged with selling cocaine

to Mr. Butler. “Factors in weighing the probative value include the prosecution’s need for the

evidence, the likelihood the defendant committed the other crimes, and the degree of its relevancy.”

State v. Edwards, 868 S.W.2d 682, 691 (Tenn. Crim. App. 1993). 

During the Rule 404(b) hearing, the State said that Defendant was not charged with selling

cocaine to Mr. Butler because the prosecutor did not want to disclose Mr. Butler’s role as a

confidential informant. The State argued that Officer Liles’ and Mr. Butler’s testimony concerning

the prior sale was the only evidence the State could present as to Defendant’s intent.
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During closing argument at the trial, Defendant’s counsel argued that although Defendant

may have sold cocaine to Mr. Butler, the remaining cocaine found in his house was for Defendant’s

own personal consumption. 

In Little, the defendant argued that his accomplice’s testimony concerning other drug

transactions in which the defendant participated was inadmissible because he was not charged for

those crimes. Little, 854 S.W.2d at 649. This Court found that the trial court did not abuse its

discretion in admitting the evidence under Rule 404(b) “as it related to [the defendant’s] intent to

commit the crimes for which he was under indictment,” notwithstanding the fact the State did not

bring any charges against the defendant for those acts. Id.

Based on our review of the record, we agree with the trial court’s finding that the probative

value of the evidence outweighed a danger of unfair prejudice to Defendant. The trial court properly

instructed the jury that it could only consider the evidence of Defendant’s prior criminal conduct “for

the limited purpose of determining whether it provides the [D]efendant’s intent,” and not as evidence

“to prove his disposition to commit a crime.” Jurors are presumed to follow the instructions of the

trial court. State v. Robinson, 146 S.W.3d 469, 494 (Tenn. 2004) (citations omitted); see also Little,

854 S.W.2d at 649.

We find that the evidence was admitted in conformity with Rule 404(b). Defendant is not

entitled to relief on this issue.

CONCLUSION

Following a review of the record, we affirm the judgment of the trial court.

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THOMAS T. WOODALL, JUDGE