IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

October 20, 2009 Session

STATE OF TENNESSEE v. DONALD RAY BLEVINS

Appeal from the Circuit Court for Warren County

No. F-11100 Larry B. Stanley, Jr., Judge

No. M2009-00124-CCA-R3-CD - Filed April 26, 2010

The Warren County Grand Jury indicted Appellant, Donald Ray Blevins, for two counts of

delivery of cocaine, a Schedule II controlled substance, in an amount of less than 0.5 grams,

and one count of delivery of cocaine, a Schedule II controlled substance, in an amount of 0.5

grams or more. These offenses were based upon three drug transactions involving a

confidential informant’s telephone calls to Appellant and further dealings with two other

individuals. Following a jury trial, Appellant was convicted of facilitation of delivery of

cocaine in an amount less than 0.5 grams, delivery of cocaine in an amount less than 0.5

grams, and delivery of cocaine in an amount of 0.5 grams or more. The trial court sentenced

Appellant as a Range I, standard offender and imposed an effective nine-year sentence to be

served at thirty percent. Appellant appealed his convictions arguing that the evidence was

insufficient to support his convictions and that the trial court erred in denying his motion to

sever offenses. We have reviewed the record on appeal. We conclude that the evidence was

sufficient to support Appellant’s convictions of the delivery offenses based upon the theory

of criminal responsibility. In addition, the evidence was sufficient to support his conviction

for facilitation of delivery. We also conclude that the trial court did not abuse its discretion

in determining that the telephone calls were part of a common scheme or plan and for that

reason the denial of Appellant’s motion to sever offenses was proper. Therefore, we affirm

the judgments of the lower court.

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

JERRY L. SMITH,J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.

WOODALL, JJ., joined. 

Michael Meise, Dickson, Tennessee, for the appellant, Donald Ray Blevins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney

General; Dale Potter, District AttorneyGeneral, andTom Miner,Assistant District AttorneyGeneral,

for the appellee, State of Tennessee.
OPINION

Factual Background

In 2004, Angie Miller Keal was arrested on a vandalism charge. She offered to

become a confidential informant to help law enforcement complete various drug purchases

in Warren County. On December 6, 2006, Ms. Keal met with Investigator Mark Martin, of

the Warren County Sheriff’s Department, and Investigator Bill Davis, with the McMinnville

Police Department. The purpose of the meeting was to arrange a drug buy from Appellant.

The investigators searched Ms. Keal and her vehicle. They also set up a transmitting device

so they could listen to her conversations during the buys. She called Appellant and asked

“did he know where anything was.” Mr. James Sayne called Ms. Keal shortly after her

conversation with Appellant. As a result of Mr. Sayne’s telephone call, Ms. Keal went to

Mark’s Market, which was run by Appellant and his wife. Before she left, the investigators

gave Ms. Keal $100 to complete the buy. She drove her own vehicle and met Mr. Sayne.

He got into her car and told her to take him to the North Side Laundromat. When they

arrived at the laundromat, Ms. Keal got out of the car and waited at the laundromat, while

Mr. Sayne took her car to go get the drugs. He returned with the drugs. He asked Ms. Keal

if she would share the drugs with him. She refused. Ms. Keal drove Mr. Sayne back to

Mark’s Market. Appellant was standing by his car at the market. Ms. Keal drove to meet

the officers and turned over the drugs.

On January 10, 2007, Ms. Keal again met with Investigators Martin and Davis to

arrange another drug buy. She called Appellant. She asked Appellant about obtaining some

crack cocaine. He told her she could get some from Mr. Sayne, but he would not do anything

less than a “benji.” She understood that to mean that Mr. Sayne would not sell an amount

below $100. The officers searched both Ms. Keal and her car and gave her $100. They also

set up a transmitting device again. Ms. Keal drove to Mark’s Market, and Mr. Sayne got in

the car with her. Once again, they drove to the laundromat. Mr. Sayne got out of the car, and

went into the backdoor of the laundromat. Mr. Sayne was the only one in the laundromat.

When he returned to the car, Mr. Sayne gave Ms. Keal some cocaine. Ms. Keal did not know

if Mr. Sayne had the cocaine on his person when she picked him up at Mark’s Market, or if

he had gotten it inside the laundromat. She drove Mr. Sayne back to the market and returned

to the officers. She handed over the cocaine to them.

On January 17, 2007, Ms. Keal placed another call to Appellant. She told Appellant

that she did not want to purchase drugs from Mr. Sayne because he had not given her the full

amount of cocaine the last time. Appellant replied that it was not his fault that Mr. Sayne had

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shorted her. Shortly after her telephone call with Appellant, Michael Wright called Ms. Keal

from Appellant’s telephone. Once again, the officers searched Ms. Keal and her car. They

set up a transmitting device and gave her money to purchase the drugs. Ms. Keal met Mr.

Wright at Riverside Market. Mr. Wright got into her car, and she drove them to a gas station.

Mr. Wright gave her the drugs while they were at the gas station. Ms. Keal gave Mr. Wright

the $100 the officers gave her to purchase the drugs. Several times, Mr. Wright asked Ms.

Keal to buy a pack of cigarettes for him at the gas station. Eventually she agreed and went

to buy the cigarettes. Mr. Wright got out of Ms. Keal’s car and got into a car with Mr. Sayne.

After Mr. Wright left with Mr. Sayne, Appellant called Ms. Keal. Appellant asked her where

Mr. Wright was. Ms. Keal returned to the officers and gave them the drugs.

Investigator Davis testified that Ms. Keal had been involved in around twenty-five

drug purchases that had resulted in ten arrests. He met with Ms. Keal before each of the

above-described purchases.

On December 6, 2006, Investigator Davis met Ms. Keal. He searched both her person

and her car and outfitted her with a transmitting device. Ms. Keal called Appellant and

arranged the drug purchase. He followed Ms. Keal as she drove to Mark’s Market, picked

up Mr. Sayne, and drove to the laundromat. He continued to monitor the transaction until

Ms. Keal returned Mr. Sayne to the market. After she had completed the drug transaction,

Ms. Keal gave Investigator Davis the drugs.

On January 10, 2007, Investigator Davis recorded a telephone conversation between

Ms. Keal and the Appellant regarding the drug purchase which transpired. He overheard

Appellant tell Ms. Keal that Mr. Sayne would not do less than a “benji.” Once again,

Investigator Davis followed Ms. Keal to Mark’s Market and monitored her transmitting

device. He overheard Ms. Keal receive a telephone call from Mr. Sayne. Later, Investigator

Davis determined that the telephone call by Mr. Sayne had been placed from Appellant’s

telephone.

On January 17, 2007, Investigator Davis recorded Ms. Keal’s telephone conversation

with Appellant. After Ms. Keal concluded her telephone conversation with Appellant,

Investigator Davis monitored a telephone call Ms. Keal received from Mr. Wright. Mr.

Wright’s call was also placed from Appellant’s telephone. After the drug transaction was

completed, Investigator Davis overheard a telephone call from Appellant to Ms. Keal

wondering where Mr. Wright was.

Later on January 17, officers stopped Mr. Sayne driving a red Jeep-like vehicle.

Investigator Davis stated that this vehicle had picked up Mr. Wright at the gas station after

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his drug transaction with Ms. Keal. Appellant came to the scene of the traffic stop and

claimed that he owned the vehicle driven by Mr. Sayne.

After each of the three drug purchases, the officers packaged the drugs in small

envelopes to be sent to the laboratory for testing. Don Carmon is a drug analyst with the

Tennessee Bureau of Investigation (“TBI”). He received two samples of a rock-like

substance from Investigator Davis. He received a sample collected on December 6, 2006,

that he determined was cocaine and weighed 0.2 grams. He also tested a sample collected

on January 17, 2007, that tested positive for cocaine and weighed 0.5 grams. Celeste White,

with the TBI, also received a rock-like substance from Investigator Davis. The sample was

collected on January 10, 2007. She determined that the sample was cocaine and weighed 0.4

grams.

The Warren County Grand Jury indicted Appellant for two counts of delivery of

cocaine, a Schedule II controlled substance, in an amount of less than 0.5 grams, and one

count of delivery of cocaine, a Schedule II controlled substance, in an amount of 0.5 grams

or more. Appellant filed a motion for severance of offenses on January 23, 2008. On June

25, 2008, the trial court held a hearing on Appellant’s motion. By written order, the trial

court denied Appellant’s motion to sever offenses.

On August 28, 2008, a jury trial was held. At the conclusion of the trial, the jury

convicted Appellant of facilitation of delivery of cocaine in an amount less than 0.5 grams,

delivery of cocaine in an amount less than 0.5 grams, and delivery of cocaine in an amount

of 0.5 grams or more. On October 8, 2008, the trial court held a sentencing hearing and

imposed an effective nine-year sentence to be served at thirty percent as a Range I, standard

offender.

Appellant filed a timely notice of appeal.

ANALYSIS

Sufficiency of the Evidence

Appellant argues that the evidence is insufficient to support his conviction for the

offenses. When a defendant challenges the sufficiency of the evidence, this Court is obliged

to review that claim according to certain well-settled principles. A verdict of guilty, rendered

by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses

and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d

253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the

accused is originally cloaked with a presumption of innocence, the jury verdict of guilty

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removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

demonstrate the insufficiency of the convicting evidence. Id. The relevant question the

reviewing court must answer is whether any rational trier of fact could have found the

accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.

P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the

strongest legitimate view of the evidence as well as all reasonable and legitimate inferences

that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is

precluded from re-weighing or reconsidering the evidence when evaluating the convicting

proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,

805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own

“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,

805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the

weight and value to be given to evidence, as well as all factual issues raised by such

evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788

S.W.2d 559, 561 (Tenn. 1990).

At trial, the State proceeded under a theory of criminal responsibility to prove

Appellant’s guilt of the offenses. “A person is criminally responsible as a party to an

offense, if the offense is committed by the person’s own conduct, by the conduct of another

for which the person is criminally responsible, or by both.” T.C.A. § 39-11-401(a).

Tennessee Code Annotated section 39-11-402(2) provides that a person is criminally

responsible for the actions of another when, “[a]cting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, the person

solicits, directs, aids, or attempts to aid another person to commit the offense . . . .” The

person must “‘in some way associate himself with the venture, act with knowledge that an

offense is to be committed, and share in the criminal intent of the principal in the first

degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembree

v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)). The defendant’s requisite criminal

intent may be inferred from his “presence, companionship, and conduct before and after the

offense.” State v. McBee, 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982). “An indictment

that charges an accused on the principal offense ‘carries with it all the nuances of the

offense,’ including criminal responsibility.” State v. Lemacks, 996 S.W.2d 166, 173 (Tenn.

1999) (quoting State v. Lequire, 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981)). A

defendant convicted under a criminal responsibility theory “is guilty in the same degree as

the principal who committed the crime” and “is considered to be a principal offender.” Id.

at 171. Criminal responsibility is not a separate crime; rather, it is “solely a theory by which

the State may prove the defendant’s guilt of the alleged offense . . . based upon the conduct

of another person.” Lemacks, 996 S.W.2d at 170. No particular act need be shown, and the

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defendant need not have taken a physical part in the crime in order to be held criminally

responsible. Id.

“It is an offense for a defendant to knowingly . . . . [d]eliver a controlled substance.”

T.C.A. § 39-17-417(a)(2). “[A] person . . . acts knowingly with respect to the conduct or to

circumstances surrounding the conduct when the person is aware of the nature of the conduct

or that the circumstances exist.” T.C.A. § 39-11-302(b). Circumstantial evidence alone may

be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.

1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). The circumstantial

evidence “‘must be not only consistent with the guilt of the accused but it must also be

inconsistent with innocence and must exclude every other reasonable theory or hypothesis

except that of guilt, and it must establish such a certainty of guilt of the accused as to

convince the mind beyond a reasonable doubt that [the defendant] is the one who committed

the crime.’” Tharpe, 726 S.W.2d at 900 (quoting Pruitt v. State, 460 S.W.2d 385, 390 (Tenn.

Crim. App. 1970)).

In the case at hand, a jury convicted Appellant of delivery of cocaine in an amount

less than 0.5 grams based upon the January 10, 2007 drug purchase and delivery of cocaine

in amount of 0.5 or more based upon the January 17, 2007 drug purchase. When the

evidence is viewed in a light most favorable to the State, we conclude that the evidence is

sufficient to support the jury’s verdict based upon the theory of criminal responsibility. On

both January 10 and 17, Ms. Keal telephoned Appellant to purchase drugs. Appellant

specifically stated with whom she would be dealing for her drug transactions. For the

January 10 purchase, Appellant told Ms. Keal she would need $100. Shortly after her call

to Appellant Mr. Sayne and Mr. Wright contacted her about arranging a drug purchase. With

regard to the January 10, 2007 purchase, Ms. Keal drove to Appellant’s place of business and

picked up Mr. Sayne who provided her with cocaine. Following the January 17 purchase,

Appellant called Ms. Keal to determine Mr. Wright’s whereabouts. In addition, evidence

was presented that both Mr. Wright and Mr. Sayne used Appellant’s telephone to call Ms.

Keal to arrange the drug purchases. Investigator Davis testified that Mr. Sayne was arrested

driving the red, Jeep-like vehicle that picked up Mr. Wright after the January 17 purchase,

and that Appellant came to the scene of the traffic stop claiming that he was the owner of the

vehicle.

We conclude that a rational trier of fact could determined that Appellant was aware

that Mr. Sayne and Mr. Wright were going to sell cocaine to Ms. Keal. Therefore, he shared

the same criminal intent as required to convict under a theory of criminal responsibility. He

clearly acted with intent to promote or assist in the commission of the offense based upon his

fielding Ms. Keal’s initial telephone calls, discussing with whom she would be dealing,

providing his telephone for use by Mr. Sayne and Mr. Wright, and providing his car. For one

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buy, Appellant’s place of business was also the location where Ms. Keal initially met Mr.

Sayne who delivered the cocaine. Therefore, the evidence was sufficient on a theory of

criminal responsibility to support Appellant’s convictions of delivery of cocaine in an amount

less than 0.5 grams based upon the January 10, 2007 drug purchase and delivery of cocaine

in amount of 0.5 or more based upon the January 17, 2007 drug purchase.

Appellant was also convicted of a facilitation of delivery of a cocaine in an amount

less than 0.5 grams based upon the December 6, 2006 purchase. As stated above, Tennessee

Code Annotated section 39-17-417(a)(2) makes it an offense for a defendant to knowingly

deliver a controlled substance. A violation of section 39-17-417(a) with respect to cocaine

in an amount less than .5 grams is a Class C felony. T.C.A. § 39-17-417(c)(2)(A).

Facilitation of possession of a controlled substance with the intent to sell or deliver has been

acknowledged as a lesser included offense of possession with intent to sell or deliver. See

State v. Nash, 104 S.W.3d 495, 499 (Tenn. 2003). Facilitation is defined as follows, “A

person is criminally responsible for the facilitation of a felony if, knowing that another

intendsto commit a specific felony, but without the intent required for criminal responsibility

under § 39-11-402(2) the person knowingly furnishes substantial assistance in the

commission of the felony.” As stated previously, criminal responsibility, under Tennessee

Code Annotated section 39-11-402(2), is, “Acting with intent to promote or assist the

commission of the offense, or to benefit in the proceeds or results of the offense, the person

solicits, directs, aids or attempts to aid another person to commit the offense.”

We conclude that there was ample evidence to support Appellant’s conviction for

facilitation of delivery of cocaine. The evidence presented with regard to this count was that

Ms. Keal called Appellant in an attempt to arrange a drug purchase. Appellant informed Ms.

Keal with whom she would be dealing and provided a telephone to Mr. Sayne to call Ms.

Keal back to make arrangements. In addition, Ms. Keal picked Mr. Sayne up at Appellant’s

place of business. A rational trier of fact could reasonably conclude that Appellant was

furnishing substantial assistance while knowing that Mr. Sayne intended to sell cocaine to

Ms. Keal.

Therefore, this issue is without merit.

Severance

Appellant’ssecond argument isthat the trial court erred in denying his motion to sever

offenses. The State argues that the trial court properly denied the motion.

A trial judge’s decision with respect to a motion for severance of offenses is one

entrusted to the sound discretion of the judge and will not be reversed on appeal absent an

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abuse of that discretion. State v. Shirley, 6 S.W.3d 243, 245 (Tenn. 1999). Additionally, “a

trial court’s refusal to sever offenses will be reversed only when ‘the trial court applied an

incorrect legal standard, or reached a decision which is against logic or reasoning that caused

an injustice for the party complaining.’” Id. at 247 (quoting State v. Shuck, 953 S.W.2d 662,

669 (Tenn. 1997)). The Tennessee Supreme Court has opined that:

[B]ecause the trial court’s decision of whether to consolidate offenses is

determined from the evidence presented at the hearing, appellate courts should

usually only look to that evidence, along with the trial court’s findings of fact

and conclusions of law, to determine whether the trial court abused its

discretion by improperly joining the offenses.

Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000). Rule 8(b) of the Tennessee Rules of

Criminal Procedure governs permissive joinder of offenses. Pursuant to Rule 8(b):

Two or more offenses may be joined in the same indictment, presentment, or

information, . . . or consolidated pursuant to Rule 13 if: (1) the offenses

constitute parts of a common scheme or plan; or (2) they are of the same or

similar character.

Tennessee Rule of Criminal Procedure 14(b)(1) governs severance of offenses. That rule

provides:

[I]f two or more offenses have been joined or consolidated for trial pursuant

to Rule 8(b) the defendant shall have a right to severance of the offenses

unless the offenses are part of a common scheme or plan and the evidence of

one would be admissible upon trial of the others.

Tenn. R. Crim. P. 14(b)(1). A trial court may not deny a severance pursuant to Rule 14(b)(1)

unless it concludes:

[F]rom the evidence and arguments presented at the hearing that: (1) the

multiple offenses constitute parts of a common scheme or plan; (2) evidence

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of each offense is relevant to some material issue in the trial of the other

offenses; and (3) the probative value of the evidence of other offenses is not

outweighed by the prejudicial effect that admission of the evidence would have

on the defendant.

Spicer, 12 S.W.3d at 445 (internal citations omitted). Furthermore, “a defendant has an

absolute right to sever offenses that are only of the same or similar character.” Id. at 443.

There are three types of common scheme or plan evidence recognized in Tennessee:

(1) offenses that reveal a distinctive design or are so similar as to constitute “signature”

crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses

that are all part of the same criminal transaction. Shirley, 6 S.W3d at 248.

The “primary inquiry into whether a severance should have been granted under Rule

14 is whether the evidence of one crime would be admissible in the trial of the other if the

two counts of indictment had been severed.” Id. at 247 (quoting State v. Burchfield, 664

S.W.2d 284, 286 (Tenn. 1984)). However, Tennessee Rule of Evidence 404(b) excludes

evidence of “other crimes, wrongs, or acts” committed by the defendant when offered only

to show the defendant's propensity to commit those “crimes, wrongs, or acts” to ensure a

defendant receives a fair trial. When offenses alleged to be parts of a common scheme or

plan are otherwise relevant to a material issue at trial, however, then Rule 404 will not bar

their admissibility into evidence. See Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980).

We initially point out that the record on appeal does not contain a transcript of the trial

court’s hearing on Appellant’s motion to sever. When a record is not complete and does not

contain relevant information, this Court must presume that the trial court was correct in its

ruling. See State v. Richardson, 875 S .W.2d 671, 674 (Tenn. Crim. App.1993); State v.

Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App.1987).

According to the trial court’s order denying the motion, the State argued that

severance was improper because the offenses were part of a common scheme or plan based

upon the fact that Ms. Keal spoke with Appellant by telephone before each of the three drug

transactions. The trial court stated that Appellant admitted in both written and oral

arguments that he had spoken with her by telephone on each of the three occasions.

Appellant also argued that “while he is a party to the telephone calls, there is nothing in the

telephone conversationsthat would suggest Defendant’s involvement in criminal behavior.”

The trial court stated that this argument by Appellant raises the question as to whether the

telephone calls as a group would establish Appellant’s “guilty knowledge, his criminal intent

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or motive” and whether Appellant’s participation was a mistake or accident. The trial court

held the following:

The Court finds that the issue of whether the Defendant acted with

guilty knowledge, intent or motive to commit a crime, or whether he was

caught up in a mistake or accident is a material issue in the trial of the

Defendant[’s] cases which would warrant the admission of these telephone

conversations. The Court finds that the proof to be [elicited] regarding

Defendant’s participation in these conversationsis clear and convincing in that

Defendant acknowledges in his written and oral argument that he was in fact

a party to the conversations and there is a digital recording of the conversations

whose authenticity has not been challenged. The Court further finds the

probative value of the evidence of these telephone conversations is not

outweighed by the danger of unfair prejudice in that, unlike the situation where

the State seeks to offer evidence of a criminal conviction or evidence that

Defendant engaged in some other completed wrongdoing, the evidence to be

offered in this case is that the Defendant took part in the relatively benign

activity of engaging in telephone conversations and it will be a disputed issue

at trial asto whether the telephone conversationsinvolved any criminal activity

or wrongdoing so the Defendant will have the opportunity to argue what

meaning should be given to the evidence.

In as much as the question of whether the Defendant had guilty

knowledge, intent or motive to engage in criminal conduct, or was the victim

of mistake or accident will have to be overcome by the State in this cause and

to overcome those defenses the State will have to offer evidence that the

Defendant was involved in a common scheme or plan . . . . The Court further

finds that were the offenses severed for trial, evidence of the other two

offenses would be admissible in the trial of the third for purpose of

demonstrating Defendant’s guilty knowledge, motivation and intent and lack

of any accident or mistake by the State in misconstruing Defendant’stelephone

conversations.

Based upon the record before this Court on appeal, we find no abuse of discretion by

the trial court. We conclude that the trial court’s determination that the telephone calls

constituted a common scheme was correct. The trial court clearly conducted the proper

analysis as set out above that “(1) the multiple offenses constitute parts of a common scheme

or plan; (2) evidence of each offense is relevant to some material issue in the trial of the other

offenses; and (3) the probative value of the evidence of other offenses is not outweighed by

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the prejudicial effect admission of the evidence would have on the defendant.” Spicer, 12

S.W.3d at 445.

Therefore, this issue is without merit.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the trial court.

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JERRY L. SMITH, JUDGE

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