### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A ugus t 20
, 200 8

STA TE OF TEN NES SEE v. BY RON LEBR ON ROS HELL

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty No. 2007-A- 577 Cheryl Blackbu rn, Judge

No. M2007- 02358-CCA -R3-C D - F iled April 2, 2009

Def endant- Appellant, By

ron L ebron Roshell, appe als his conviction by a Davidson County

jury of the sale of

less than .5 g rams of c ocaine , a Class C felony . See T.C.A. § 39-17- 41 7 (2 0 0 6 ). He argues that (1) the trial cour t erre d in admitting a f

ormer c o-def

endant’ s testimony

that he had boug ht dr u g s f r o m R o s h e ll in

th e p a s t a n d ( 2 ) th e e v id e n c e w a s in s u f f ic ie n t t o s u

p p o rt h is c o n v ic ti o n

. We aff irm the trial cour

t’s judgme nt.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

C AM I L L E R. M C M UL L EN , J ., delivere d the opinion of the court
, i n which J A M ES C UR WO OD W I TT , J R ., J ., joined. J OS EP H M. T I PTON , P.J ., filed a dissenting opinion.

J ames P. McNa

mara and Jeffre y

A. DeV asher

(on appe al), a

nd Kevin McGe e (at trial), Nashville, Tenne ssee, f

or the a ppellant, B y

ron L ebron Roshell.

Robert E. Cooper, Jr., Attorney Genera l an d Reporter ; Eliz abeth B . Marne y , Assistant Attorney Gene ral; Victor S. Johnson, I I I , District Attorney Gene ral; and MatthewPietsch, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

On Dec ember

6, 2006, Roshell was arr ested in a “buy -bust” drug operation c onducted by the Me tr op oli tan N a sh vil le Pol ic e De pa rtme nt. On July 18 , 200 7, a jur y fo un d Ro sh e ll guil ty

of the sa le of less than .5 g rams of c ocaine . On September 12, 2007, the trial court se ntence d Roshell to nine
y ear s as a Rang e I I , multipl e off ender . On Octobe r 12, 2007, Roshell filed his timely n o t i ce of appea l.

Tr ial

. Be cause Roshell challeng es t he sufficiency of t he evidence supporting his convic tion, a brie f summary

of the five witnesses ca lled by the State at trial is nec essar y . The de fense did not offe r any proof at trial.-2-

Th e fi rs t w itn e ss a

t tr ia l, De te c tiv e Mic ha e l F ish e r, te sti fi e d th a t he wa s a ssi g ne d to the Ea st Cr ime Sup pr e ssi on

Un it, “ a str e e t le ve l vi c e un it, ” that “add res s[ e s] th e str e e t le ve l na rc oti c s, prostitution, and ga

mbling . . . .” H e explained that a “buy bust” operation “targ et[s] street leve l drug deale rs” in ar eas know n to have a larg e number of drug sales. Gene rally
, the vice unit uses e ither an underc over office r or a confidential informant to buy the drugs. Detec tive Fisher descr ibed how the vice unit pre pare d for a

ty pical “buy -bust” oper ation:

Prior to hitti ng the stree t [ to conduct the ope ration] we’ll wire the [o ff i cer or

c on fi de nti a l in fo rm ant] that’ s g oin g to do the buy wi th a n a ud io- lis te nin g de vic e so

we c an mo nit or

the ir c on ve rs a tio ns on the str e e t, w hic h is c hie fl y fo r s a fe ty purp os e s. I f somethi n g we re to go w rong , we c ould hear the conve rsation like if they wer e g etting r obbed. The n we take [t he] money and photocopy it. That’s the mone y that will be used to pur chase narc otics so that when an exchang e g oes down for narc otics and the buy er g ives the money over to the seller, when we move in to take the par ties inv olv e d in to c us tod

y , w e c an tr a c e wh o re c e ive d th e mon e y fo r t he na rc oti c sa le . So
t h a t ’ s w h e r e th e p r e v i o u s l y p h o t o c o p i e d b u y m o n e y c o m e s i n t o p l a y.

I n th is c a se , the vic e un it us e d a c on fi de nti a l inf or mant wh o wa s p a id t o p ur c ha se dr ug s. Th e a

ud io fr om t he c on fi de nti a l in fo rm ant’ s mi c ro ph on e wa s n ot r e c o r d e d d u e to t he dif fi c ult y in “ the log ist ic s” and the police depar

tment policy

not to recor d audio for sma ll scale drugsales.

Detec tive Fisher photocopied the bu y m oney for the sale, put the wire on the conf idential infor ma n t, an d s e ar c h e d th e c o n f id e n ti a l i n f

o r ma n t t o c o n f ir m t h a t h e d id

n o t p o s s e s s an y

other money or contra

band bef ore se nding him out to make the d rug purcha se. He sear ched the informant’s waistband, wher e the wire was pl ace d, and “all the pockets, around the ankle of the sock,

no t in sid e the sh oe , any po c ke ts in the sh ir t, up pe r bo dy
, [an d the ] t or so

. . . .” De te c tiv e F ish e r d id not strip searc h the informant, but did re move his shirt to place the w ire.

Detec tive Fisher

only o b s er v ed p arts of the “buy -bust” oper ation and did not witness the
actua l drug exchang e betwe en the infor mant and Roshell. Detec tive Fisher dropped the confide ntial informant off in the designate d are a and visua lly monitored the conf

idential informant until one of the other de tectives kne w the informa nt’s position. He said that the dete ctives in the oper ation took
tur ns ob se rv ingthe c on fi de nti a l in fo rm ant a nd tha t th e y ha d f our a ud io t ra ns mit ter s be tw e e n s ix detec tives. Once the conf

idential informant purchased the drug s, Detec tive Fisher said that he “ went throug h the motions” of ar resting him to “throw off the other parties involved.” When he took the confide ntial informant into custody , he “r etrieve d the purc hased a mount of cra ck coc aine, whic h was approximately

point two gr ams, which is [the] aver ag e for a twenty dollar t ransa ction.” De tective Fisher field tested the dr

ug s and then g ave the drug s to Detec tive Morton.

On cr oss-examination, Detective F isher admitted neither the twenty dollar bill that he g ave to the confide ntial informant nor the photoc opy of t he buy money was preserve d as evidence. The

c on fi d e n t i a l i n f

o r m an tw a s p a i d

a p p r o xi m a t e l y

$ 4 0 p e r dr u g b u y an d h a d r e c e i v e d a p p r o xi ma te ly $2000 for ne arly

thirty succe ssful drug buy s betwee n May of 2006 an d Dec ember

of 2006. The-3-

informant wa s compensated acc ording to a pay scale based on the amount of drug s rec overe d and did no t g e t paid f

or fa ile d atte mpt s at dr

ugbuy s. F ina lly , th e c on fi de nti a l in fo rm ant i n th is c a se completed f

ive drugbuy s the day

Roshell was arr ested.

Detec tive Fisher stated that the confide ntial informant wh o as s i s t ed i n Roshell’s case was

arr ested for

possession of drugpara pherna lia on J anuar

y 3, 2007, less than a month af ter the confide ntial informant assist ed i n Roshell’s arre st, but a member of the vice squa d helped the inf or mant get this c ha

rg e e xpun g e d in

Ap ri l of 20 07 . D e te c tiv e F ish e r s ta te d th a t th e vic e un it decide d not to use this particular individual as a confide ntial informant for a while afte r they lear ned that he had r elapse d.

The confidential i nformant in this case testified that he a ssisted in the “buy -bust” oper ation conducte d by

the police on De cembe r 6, 2006, that re s u l t ed in Roshell’s arre st. He wa lked down She lby Av e nu e and

e nc ounte re d Pi e rr e Ma

rt in, an o ld a c qu a int anc e wi th wh om h e ha d p re vio us ly

us e d d ru g s. He a sk e d Mart in wh e re he c ou ld buy so me “ do pe ,” me anin g c ra c k c oc a ine , a nd Mart in said he k n e w w h o to c a ll

. M arti nb o r r o w e d th e c o n f id e n ti a l i n f

o r ma n t’ s c e ll p h o n e an d

c alled Ro s h e l l f o r t h e dr u g s

. T h e c o n f

i d e n t i a l i n f

o r m an t s a i d t h a t h e an d M art i n m e t R o s h e l l a t a

c on ve nie nc e sto re a t So uth Sixth St re e t and She lby Av e nu e . T he c on fi de nti a l inf or mant a g re e d to split t he coc aine with Ma rt i n since he told the informant wher e to find it. As the informant a nd Mart in he a de d to the sto re to me e t Ros he ll, the y ha d a dis c us sio n a bo ut wh o wa s a c tua lly g oin g to buy the drugs. The informant had ini tially g iven M artin t he twenty dollar bi ll supplied by the police, bu t he c on vin c e d M art in t o a llo w h im t o b uy the dr ug s, and Ma

rt in h and e d th e mon e y

ba c k to him prior to the sale. When Roshell arr ived, he asked who had the money , and the c onfidential informa nt g ave him the twe nty

dollar bill. Roshell t hen g ave him the drug s from his pocket. Roshell beg an to walk awa

y when the police “swa

rmed in on [t hem].” After Roshell was arre sted, the informa nt g ave the coca ine to D etec tive Fisher . The c onfidential informa nt identified Roshell in the courtroom

a s th e ind ivi du a l w ho so ld h im the dr ug s. Al th ou gh the inf

or mant w a s p a id t o b uy

dr ug s in the se

“ buy -b us t” op e ratio ns , he wa s no t pa id to te sti fy

. Th e c on fi de nti a l inf or mant sa id that th is w a s h is first time to testify

for the State.

The confide ntial informant admitted that he had to be convincing to drug deale rs during the “buy -bust” oper ations, or he would not ge t paid by the police. I f additional drug s or wea pons were fo un d o n th e dr

ugde a le r o r i f t

he arr e st l e d to mor e pe op le be ingarr e sted
, then he wo uld be pa id more money . He confirmed that he was paid $40 for the operation involving R oshell, and that he ha d b e e n invo lve d in fiv e “ buy -b us t” op e ra tio ns the da

y that Rosh e ll w a s arr e ste d. He a dmi tte d to the J anuar

y 3, 2007 arr est for possessing drug para pherna lia and to usingcra ck coc aine at that time. Th e c o n f i d e n t i a l i n f

o r m an t s a i d t h a t h e a s k e d t h e v i c e u n i t i f h e c o u l d “ w o r k i t o f f
, ” an d his para pherna lia char g e wa s retire d. He a lso admitted that he falsified a temporar y license ta g in 1997.

Pie rr e Mart in, Ros he ll’ s f or me r c o- de fe nd ant, te sti fi e d th a t he ha d be e n in ja il o n th is c a se fo r t he la st s even and

a ha lf mon ths . H e ple d guil ty

the da y of his te sti mony

in R os he ll’ s tr ia l to fac ilitation of the sale of unde r .5 g rams of coca ine and rec eived a sentenc e of f our y ear s’ probation. Mart in d id n ot r e c e ive his of fe r of pr ob a tio n fr om the State un til a ft e r the jur y ha d b e e n c ho se n in-4-

his and Roshell’s joint t rial. Martin ac knowledg ed that he ha d multipl e fe lony convictions of thef

t and b u rgl ar y

as we ll as misdemeanor c onvictions of theft. He also admitted that he ha d a drug pr ob le m, a lth ou g h h e ha d n e ve r b e e n c on vic te d o f s e lli ngdr ug s. Ma rt in sa id that he kn e w R os he ll

“ fr om the str e e t, an d .

. . fr om doi ng tim e wi th h im, ” and he kn e w the c on fi de nti a l in fo rm ant b e c a us e they g rew up toge ther a

nd used drug s toge ther. Martin’s testi mony larg ely corr oborate d that of the

c on fi de nti a l in fo rm ant’ s. I n a dd iti on , M art in k ne w R os he ll w a s “in the bu sin e ss o f s e lli ngdr ug s” beca use he ha d “dea lt with him befor e.”

Detec tive Dar

ry l Morton, a member

of t he East Crime Suppression Unit of the Metr opolitan Nashville Police De partment, testified that he was a lso involved in the “buy -b u s t ” o p er ation on Dec ember

6, 2006, that resulted in Roshell’s arr est. Detec tive Morton stated that he observe d the

co n fi d en t i al informant g ree t Martin and could tell fr om what he he ard on the wire that they knew

eac h other. De tective Morton a lso heard Martin tell the confide ntial inf ormant that he did not have any drug s but that he knew w here they could g et some. He then observe d Martin borrow the informant’s c ell phone. Detec tive Morton said that he he ard Ma rtin tell the informant that they had to walk to the s tore at Six th Street and Shelby Avenue . He obse rved the m walking towards the store
, but he lost sig ht of the confide ntial inf ormant and Martin for a few seconds whe n h e h ad t o d ri ve

aro un d th e blo c k s o th a t he c ou ld o bs e rv e the m at the sto re . H e saw t he inf or mant a nd Mart in talking a nd then saw Roshell come from ar ound the store f rom the direc t i o n o f t h e J ames Cayce projec ts. Detec tive Morton identified Roshell in the courtroom.

Detec tive Morton stated t hat R oshell turned to the conf idential informant and sa id, “[H] ere it is.” Then Roshell turned at a n ang le wher e he c ould not see Roshell’s and th e conf idential informant’s ha

nds touch. Dete ctive Morton then obse rved the informant g iving the take-do wn s ig nal and watched Roshell walk into the st o re

. As t h e other office rs wer e ar resting Martin and the confide ntial in fo rm an t , De tective Morton sa id he followed Roshell into the store, whe re he had alre ady purcha sed a bottle of w ater with the twenty

dollar bill he rec eived f

rom the drugtransac tion. He arr ested Roshell a

nd rec overe d the twenty dollar bill fr om the cashie r. De tective Morton sa id he

c omp are d th e se ri a l numbe rs on the bil l to the ph oto c op y of the tw e nty do lla r bil l that wa s g ive n to the conf idential informant
, and they matched. H e then r ecove red the coca ine involved in the operation from Detec tive Fisher and field tested it. Detec tive Morton stated that the substanc e tested positive for coc aine at the scene and that he then turned it into the property room and filled out a la

b

s h ee ts o t h at t h e s u

b s t an ce co u l d

b e s en tt o t h e T en n es s ee Bu re au o f Inv es t i gat i o nfo r t es t i n g.

Detec tive Morton acknow ledg ed that a gen er al orde r of the police depar tment reg arding confide ntial informants requir ed off icer s to have “ continued surve i l lance of the [confidential inf or mant] t o[,] f

ro m[,] and

duri ngthe tr ans a c tio n o r m eet in g. ” He a dmi tte d th a t he vio la te d th is g ener al orde r whe n he los t sight of the confidential informant and Martin whil e he drove to the store to witness the drug sale. He said that when they sear ched Roshell they did not find a larg e sum of money , a ce ll pho n e, d i gi t al s cale s, other drug s, or wea pons. The vice unit did not phot og raph or vid e o- ta pe the tr ans a c tio n, and the y did no t re c or d the a ud io fr om the wi re

. De te c tiv e Mo rt on a lso did not attempt to obtain the video surve illance tape s from the store wher e the tra nsaction took place

. F ina lly , D e te c tiv e Mo rt on fa ile d to pr e se rve t he bu y mon e y us e d in thi s tr ans a c tio n a s w e ll a s to-5-

subpoena the confide ntial informant’s ce ll phone rec ords to prove that Ma rt in called Roshell’s number on De cembe r 6.

Br ian Ang olia, a drugchemist with the Tennessee Bure au of Investig ation, was a dmitted as

an e xpe rt in t he fi e ld o f f

or e ns ic c he mis tr

y and c on fi rm e d tha t the e vid e nc e su bmi tte d in this c a se contained c ocaine base a

nd weig hed .2 g rams.

Roshell did not t estify , and the de fense did not offer any proof at trial.

I. Ten n es s ee Ru l e o f E vidence 404(b). Roshell arg ues that the trial c ourt err ed by admitting evide nce unde r Rule 404(b) w ithout making a c lear and convinc ing de terminati o n, by admitting the e vidence that did not meet the test for c ontext ual bac kg round evidence, and by g iving jury instructions that were inconsistent to its Rule 404(b) ruling and that heig htened the risk that the jury would misuse the evidenc e of Roshell’s pr ior drugsales. In response , the State ar g ues that the
tr ia l c ourt

su bs tanti a lly

c omp lie d w iththe re qu ir e me nts of Rul e 40 4(b) . In a dd iti on , th e State contends that the tria l court cur ed any alleg ed def

iciency reg arding the procedura l require ments of Rule 404(b) duringthe motion for a ne w trial whe n it acknowledg ed that it should have c onsidered the level of proof a ssociated with the pr ior bad a ct and c oncluded that it had f ound clea r and convincingproof that Roshell sold drug s to Martin in the past.

Rul e 40 4( b) state s:

(b ) O th e r Cr im e s, Wr ong s, or Ac ts

. Evidence of ot her c rimes, wrong s, or ac ts is not

a dmi ssi ble to p ro ve the c ha ra c te r o f a pe rso n in

or de r t o s ho w a c tio n in

c on fo rm ity with the char acter t ra i t. I t may , howeve r, be a dmissibl e for other purpose s. The

c on dit ion s w hic h mu st b e satis fi e d b e fo re a llo wi ng su ch evi dence are : (1) The court upon re quest must hold a hear ing outside the jury ' s prese nce; (2 ) T he c ourt

mus t de te rm ine that a

ma te ri a l is su e e xists oth e r t ha n c on du c t confor ming with a c hara cter

trait and must upon reque st state on the re cord the materia l issue, the ruling , and the r easons f or admitting the evidenc e; (3) The court must find proof of the ot her crime, wrong
, or act to be clear and convincing ; and (4) The court must ex clude the e vidence if its probative value is outweig hed by the dang er of

unfair pr ejudice.

As su min g a tr ia l c ou

rt su bs tanti a lly c omp lie s wi th the re qu ir e me nts of Rul e 40 4( b) , w e wi ll revie w the trial c ourt’s dete rmination for a n abuse of discretion. See State v. DuB ose, 953 S.W .2d 64 9, 65 2 ( Te nn . 1 99 7) . H ow e ve r, if a tr ia l c ourt

fa ils to sub sta

nti a lly c omp ly wi th t he re qu ir e me nts of the rule
, then the trial court’s decision is not entitled to defe renc e by the re viewing court. DuB ose, 953 S.W .2d at 652.-6-

“Rule 404 wa s patterne d in gr eat mea sure on State v. Par ton, 694 S.W .2d 299 (Tenn. 1985)
, wher ein our supre me court ruled that evidenc e of othe r cr imes is ge nera lly inadmissible.” State v. McCary , 119 S.W .3d 226, 243 (Tenn. Crim. App. 2003) . Rule 4 0 4 “e s tablish[ es] that chara cter evidenc e ca

nnot be used to prove that a per son has a pr opensity to commit a cr ime.” Te nn. R. Evid. 404(b); State v. Adkisson, 899 S.W.2d 626, 645 (Tenn. Crim. App. 1994) . Trial cour ts should take a “r estrictive a

pproac h [t o] 404(b) . . . beca use ‘other act’ evidenc e carrie s a sig nificant potential for unfairly influencinga jury .” Ne il P. C ohen et a l., Tennesse e L aw of Evidence § 4.04[8] [e] (4th ed. 2000). The mor e similar the conduc t or ac t to the crime for which the de fenda

nt is on trial, the g reater the pote ntial for a pr ejudicial re sult. McCary , 119 S.W .3d at 243 (citing State v. Bor dis, 905 S.W. 2d 21 4, 23 2 ( Te nn . Cr im. Ap p. 19 95 ))

. Othe r c ri me s, wr on g s or a c ts are a dmi ssi ble un de r R ule 404(b) whe n rele vant to an issu e o ther than the defe ndant’s cha rac ter, such a s intent, moti ve, identity , common scheme or plan, or a bsence of mistake. I d.

P ri o r t o t ri al
, R o s h el l ’s at t o rn ey re qu es t edan i n s t ru ct i o n f o r t h e c a s u al ex ch an ge o f d ru gs under Te nnessee Code Annotated se ction 39-17-418 ( 2006), which state s that a ca sual exchang e of
a contr olled substance obta ined without a valid p re s cr i p t i on is a Class A misdemeanor. D uring Martin’s testimony
, the State indicated to the trial court that it wanted to ask Mar tin whether he had bo u ght drug s from Roshell on previous occ asions to refute the def ense’ s argument that the
transac tion was nothing more than a c asual exchang e. The trial court conducte d a hea ring outside the pr e se nc e of

the jur y to d e te rm ine the a dmi ssi bil ity of Ros he ll’ s pri or dru g sa le s und e r R ule 404(b) of the Tenne ssee Rules of Evide nce.

Duri ngthi s jury -out

he ari ngpurs ua

nt t o Ru le 40 4( b) , M art in t e sti fi e d th a t he kn e w t o contac t Roshell because he had purcha sed drugs from Roshell in the past. Martin ac knowledg ed that Ro sh e ll w a s “ in t

he bu sin e ss of se lli ng dr

ug s” and that Ma

rt in h a d b ou g ht d

ru g s f ro m Ro sh e ll at least a dozen times. During c ross-examination by defe nse counse l, Ma

rtin said, “I

can’ t give y ou dates a nd times. . . . I ’ve de alt with Roshell quit e a bit.” Ma rtin stated that most of the times that he bo ug ht d

ru g s f ro m Ro sh e ll, the re we re no wi tne sse s.

When the trial court a sked the State why it wanted to admit evidenc e that Mar tin had boug ht drug s from Roshell many times in the past, the followingexchang e occ urre d:

T HE S TA TE : Th e re a so n [we are a sk ing fo r thi s e vid e nc e to be a dmi tte d] is

beca use the defe nse is a sking for an instruction on casual exchange. And one of

the things that Ihave to pr ove is that thi s w a s a sa le that w a s d on e wi th d e sig n. I n o rd e r to d o th a t, that’ s w hy

the pa st e xpe rience with B y ro n Ro sh e ll [is rele vant] and that’s why

that call was for sale and not ca sual exchang e.-7-

T HE C O U RT : [D e f e n s e Co u n s e l] ?

D EF ENS E C OUN S EL : F i r s t o f a l l
, t h a t ’ s p r e t t y l a t e n o t i c e o n t h e 4 0 4 B

. S e c o n d l y,

the S tate has to prove by

clea r an[d] convincing e vidence that this actually

took place. An d when we don’t eve n know which date s these alleg ed sale s took place on and whe re, how am I supposed to offe r up any evidenc e to re bu t this bl anket statement that Mr. Roshell sold to him m any t i m es in the past[? ] Third, thi s is complete prope nsity ev i d ence . That’s all it’s being offe red f

or. [The Prosecutor] has already put on proof to show that this was done with des ign by saying that Mr. Martin called up Mr. R oshell and said, hey
, I need to buy drug s, I need $20 worth of dr ug s, and Mr. Roshell came down and supplied that drug . That’s the e lements of a sa le.
This issue of

casua l exchang e has nothing to do with whether

or no t he so ld t o h im be fo re in t he pa st. Th a t’ s si mpl y propensity , and ther e’s nothing here in this description to say that – I me an, thi s is a

bs ur d fo r him

to s ay that he int e nd e d to sell rather than intended to do a c asual e x chang e. Intent is not

even a n element of

this crime. I

think the prejudicial impac t is obvious and horrific in this case

.

T HE C O U RT : All rig ht. Well, w it h r e g ar d to th e n o ti c e o b v io u sly Mr. Martin just pled g uilty

this morning, so the St at e wo u ld be hard- put to g ive notice of that. But now we’ re taking up out of the 40 4B a s to wh e the r o r n ot t he re we re oth e r cr ime s, a c ts, or wrong s. And it would be offere d for some pur pose other than prope nsity , and I have to hold a hea ring outside the jury ’s prese nce, w hich we’ re doing . And I have to de termine ther e is a materia l issue th at exist s other than the c onduct

c on fo rm ingwi th t

he c ha ra c te r t ra it b e ingpr op os e d, that is
, that he sells drug s. The issue at th i s t ri al, it would appea r

c omi ngthr ou g h a ll the wi tne sse s, is that the inf or mant i s ly ing, that this di dn’t happe n, that, y ou k n o w, t here ’s no documentation of a

ny of this. Mr. Martin is te stify ing that he called the d ef

en d ant . . . from a [cell phone] . . . that [ the confide ntial informant] ga ve him and he ha

ppened to c all Mr. Roshell. I think there is a mate rial issue other t h an

. . . propensity , and that would be the relationship of the parties of why he would call him. I t’s just not out of t he blue. He kne w who to call.-8- I ’m g oin g to i ns tr

uc t th e jur

y that the y ’r e to c on sid e r i t on ly
as sort of a complete story of t he crime and the r elationship of the parties. And they ’re not to consider it for a ny other

rea son. Now, obvious ly

y ou’ll be allowe d to cross-e x amine him about

th a t i s s u e

. I ’ m g o in g to a ll o w y o uto a s k th at question.

D EF ENS E C OUN S EL : Your Honor, may I ask why y ou believe -- which date are we

talking a bout in terms of a prior

sale? This blanket --

T HE C O U RT : That he has dealt with him in the past. [Defe nse Counsel], y ou

do[n’t] have to - -

D EF ENS E C OUN S EL : A bl ank et all ega tio n is imp os sib le fo r m e to c on fr on t,

espec ially when I ’m hea

ring about it --

T HE C O U RT : [Defense Counsel] , listen to me. L isten to me. I f somebody

c ome s in he re and te sti fi e s - - n ot i n th is c a se

-- bu t th a t th e ir spouse has be aten them on many occa sions, they

do n’t have to g ive y ou date s and tim e s fo r that e ith e r. Yo u kn ow , it ’s a relati on sh ip o f t

he pa rt ie s. Th e se pe op le are do ingbu sin e ss tog e the r; ok ay ? He sa

y s he do e s it on -- y ou can cr os sexamine h i m ab o ut all that, but that doesn’t keep it fr om coming in. He ca

n’t tell y ou when he did it or that sort of thi ngbu t . . . [e lli ps is i n tr ans c ri pt]

D EF ENS E C OUN S EL : What is -- I ’m not s u re I u n d er s t and Your Honor’s ruling

a bo ut wh y thi s is jus t

-- to sa y the y ha d do ne busine ss toge ther --

T HE C O U RT : I t’s sev eral th ing s. I t’ s a c omp le te sto ry of thi s c ri me

. I t is

the relationship of the parties, why he out of the bl ue ha pp e ne d to c a ll your c lie nt. He kn ow s h im. He ’s de a lt w ith him. He’s done business with him to call to come ove r there

. I ’m g oing to instruct the jury they can only consider it for

that

rea son and that re ason alone

.

. . . .-9-

A. F ail ur e to M ake a C le ar and C onv inc ing De te r m ina ti on. Roshell contends that the trial court im proper ly admitted evidenc e under Rule 404(b) without finding proof of the prior a ct to be clea r and c onvincing

.

We must i nitially

deter mine whether

the trial cour

t substantial l y co m p l ied with the require ments of Rule 404(b). The re cord shows that the trial cour t corre ctly

held a 404( b) hea

ring outside the jury ’s pre sence . The trial c ourt also deter mined that a mater ial issue exis ted other tha n conduct c onforming to a cha rac ter tra it and s t at ed t he mater ial issue, its ruling, and its re asoning for the r uling on the r ecor d. Her e, duringthe jury -out hea ring , the trial cour

t stated that the mater ial issue was “the complete story of the crime” and the “re lationship of the parties.” Fur ther, during thi s h e ari ng , th e tr ia l c ourt ru le d th a t th e e vid e nc e wa s a dmi ssi ble to r e bu t th e a lle g a tio ns by de fe ns e counsel that “ the informant is lying, that this didn’t happen, that . . . there ’s no documentation of any of this” and that “[Martin just] happene d to call Mr. Roshell.” The trial court a lso found that the fact th a t Ma

rt in c a lle d Ro sh e ll f

or the dr ug s w a s si g nif

ic ant b e c a

us e “ [Mart in] k

ne w w ho to

c a ll. ” Th e tr ia l c ourt

e xplain e d, “ [Mart in h a s] de a lt w ith[Ros he ll]. He ’s do ne bu sin e ss w ith [Ros he ll] to c a ll [h im] to c ome ov e r the re

. I ’m g oin g to ins tr uc t the jur

y the y c an o nly c on sid e r i t for that r eason a

nd that rea son alone.”

Although the trial court stated that “ther e is a materia l issue other than

. . . propensity , and that would be the relationship of t he parties

. . . why [Martin] would call [ Roshell] ,” we note that it failed to make a

n expli cit finding that the probative value of Roshell’s prior drugs ales outweig hed the da

ng er of unfair prejudice . I n addition, the trial court f ailed to deter

mine whether Roshell’s prior drugsales we re pr oven by clea r and c onvincing evidenc e. We ac knowledg e that Martin t estified, without challeng e by Roshell, that he knew “[Roshell] from the street” and “f rom doing time with him.” We also acknow ledg e, as argued by the S tate, that the trial court admitted at Roshell’s sentenc ing he aringthat it “should have” made this deter mination an d explained, “I found cle ar a

nd convincingevidenc e . . . of the relationshi p o f t h e par ties in terms of that [the

e vid e nc e ] co uld

c ome in f

or a lim ite d p urp ose. Iins tr

uc te d th e Jury

a c c or din g ly

. . . . Itho ug ht i t

was re levant, allowe d it in, and thought the pr ejudice was . . . ove rcome by the probative value.” Reg ardle ss of these f

acts, the tria l court still had an oblig ation to determine w hether the prior a ct was prove n by clea

r and convincing evidenc e. Given the tria l court’s fa ilure to make a clea r and convincingevidentiar

y deter mination and its failure to weigh the probative va lue of this evidenc e

a g a ins t th e un fa ir

pr e jud ic ia l e ff

e c t, w e c on c lud e that th e tr ia l c ourt did no t su bs tanti a lly

c omp ly with the proce dural re quirements of Rule 404(b). Com pare State v. Albert Eug ene Plea sant, No. M1998-00653-CCA-R3-CD, 2 0 0 1 WL 741932, at *7-8 (T enn. Crim. App., Nashville, July 3, 2001) (s ta tin g tha

t th e tr ia l court

did no t su bs tanti a lly

c omp ly wi th R ule 40 4( b) re qu ir e me nts wh e n it did not make a c lear

and convinc ing e vidence deter mination or weig h the probative v al u e o f the

e vid e nc e a g a ins t the un fa ir pr e jud ic ia l e ff

e c t) , w ith State v. Ray

Anthony Nelson, No. 03C01-9706- CR-00197, 1998 W L694971, at *8-9 (Tenn. C rim. App., Knox ville, Sept. 9, 1998) (stating that the
tr ia l c ourt su bs tanti a lly

c omp lie d w ithRul e 40 4( b) when it met all the re qu ir e me nts of the ru le except the nee d to make a c lear and convinc ing e vidence deter mination) and Dubose, 953 S.W.2d at 652 (stating that the trial cour t did not substantially comply with Rule 404(b) whe n the trial cour t-10-

failed to state the prior ac ts’ rele vance to a mater ial issue on the record and failed to deter mine that the probative value of

the evidence outweighe d the unfa ir prejudicia l effe ct). Th e re fo re , w e mus t revie w this issue without defere nce to the tr ial court’s f inding a nd conclusion.

We must now indepe ndently deter mine whether we would admit Roshell’s prior drugsales based “ on the evidenc e pre sented at the jury [-] out hear ing.” See Dubose
, 9 5 3 S.W .2d at 653. Du ri n g t h e R

u l e 4 0 4 (b ) j u ry -o u t h ea ri n g, M ar t i n t es t i fi ed t h at h e kn ew R o s h el l wo u l d h av e d ru gs to sell beca

use “[he’d] done dea ls w ith him before.” Martin ac knowledg ed that Roshell “wa s in the business of selling drug s” and that he had boug ht drug s from Roshell “at lea st a dozen” times. On

cross e x amination by

defe nse counse l, Martin stated that althoug h he could not g ive “dates and times,” he said, “ Idealt with [R oshell] on a daily basis if y ou rea lly want to know.” H e also stated that “most of the time” ther e we re no w itnesses to the drugdeals be tween Roshell and him.

Given the evidenc e prese nted at the jury -out hea ring , we do not conc lude that the trial c ourt

err ed in admitting the e vidence of R oshell’s prior drug sales. The fact that Martin had purcha sed drug s from Roshell innumerable times in t he past explained why Martin ca lled Roshell when the confide ntial informant told him he neede d some coca ine. I t a lso e x plained Roshell’s motive and intent in selling the drugs to the confide ntial informant on Dec ember 6, 2006. See McClea

n v. State, 527 S

. W

. 2 d 7 6
, 83 (Tenn. 1975) (evide nce of pharma cist’s prior illeg al sale of controlled sub s ta n c e to in f o r me r a d mi tt e d to e s ta b li s h c o n ti n u in g r e lati o n s h ip an d in te n t t o c o mm it

c r ime). Fur ther, a s the State argued, the introduction of Roshell’s prior drugsales re futed de fense counsel’s alleg ations that Roshell was only g uilty of a c asual e x chang e of dr ug s

. We conclude that the evidenc e of Roshell’s prior drug sales was proven by clea r and convincing evidenc e. I n addition, for the r easons we have pr eviously stated, we conclude that the probative value of Roshell’s pr ior

a c ts o utw eighe d any unfa ir pr e jud ic e . T he re fo re , th e tr ia l c ourt a c te d w ith in i ts d isc re tio n in admitting evide nce of

Roshell’s prior drugsales.

B. Whether the P rior Bad Acts were Co nt e x t ual B ackground E vidence. Roshell arg ues that the evidenc e of his prior ba d acts doe s n o t m ee t the test for a dmissibi lity of “c ontext ual ba c kg ro un d” e vid e nc e a s st a te d in State v. Gi lli land , 2 2 S. W.3 d 266
, 27 2 ( Te nn . 2 00 0) . H e a lso contends that the evidence of hi s prior drug sales was irreleva nt and could only

be conside red by a jury as prope nsity

evidenc e. In Gilliland, t h e T en n es s ee Supreme Court set for th a test for the ad m i s s i b i l i t y

of evide nce of

other c rimes, wrong s, or ac ts that is relevant only for pr oviding contextual backg round :

[W]he n th e state se e ks to o ff e r e vid e nc e of

oth e r c ri me s, wr on g s, or a c ts that is

re le va nt o nly to pr ovide a

c on te xtua l ba c kg ro un d f or the c a se , th e state mus t

e sta b l i s h
, an d t h e t r i a l c o u rt m u s t f i n d
, t h a t ( 1 ) t h e a

b s e n c e o f t h e e v i d e n c e wo uld

cre ate a chronolog ical or c onceptua l void in the s t ate’s presentation of its case; (2) the void cre ated by

the abse nce of

the evidenc e would likely result in signific ant jury-11-

confusion as to the material issues or e vidence in the case ; and (3) the probative value of the evidenc e is not outweig hed by the dang er of

unfair pr ejudice.

I d. Th e langua g e of

the a fo re me nti on e d te st i s sp e c if ic a lly re str ic te d to “ e vid e nc e of oth e r c ri me s, wrong s, or ac ts that is relevant only to provide a contextual backg round for the ca se[.] ” I d. (e mph a sis added) ; see State v. L eac h, 148 S.W .3d 42, 58 (Tenn. 2004)

.

Her e, the State did not offe r the e vidence of Roshel l’s prior drugsales as c ontext ual backg round evide nce. I

n this c ase, defe nse counsel intimated that the drugtransac tion either did not
take pla c e or

tha t th e c on fi de nti a l in fo rm ant a nd Mart in w e re lying a

bo ut Ros he ll’ s se lli ngthe dr ug s. As we have alre ady conclude d in the previous section, the e vidence of Roshell’s prior drugdealing

was r el evant to prove his intent and motive in the instant case a nd was ne cessa

ry to refute the all e g a ti o nth a t R o s h e ll w a s g u il ty o f a c a s u a l e xc h an g e o f

dr u g s r a th e r

th ana s a le

. T h e r e f

ore, beca use the e vidence of Roshell’s prior drugsales wa s releva nt for re asons other tha

n to provide a contextual backg round (i.e., motive, intent, and to r efute a casua l e x chang e of dr ug s), we c onclude that the test in Gillil and is inapplicable

.

C. Whe th e r th e Jur y Inst r uc ti ons He igh te ne d th e Ri sk tha t t he Jur y woul d M isus e th e P rior Bad Ac ts Evidence. Roshell contends that the trial cour t erre d beca

use it “instructed the jury inconsistently

with its own ruling duringthe 404(b) he aring .” He also argues that because the evidenc e of his prior drug sales was mer ely propensity

evidenc e , the trial court’s de cision to instruct the jury on motive and intent incre ased the risk that the j ury would misuse the prior ac t evidence

.

At the conc lusion of the 404(b) he aring
, the trial court ruled, “I ’m g oing to instruct the jur y that they ’re to consider [the evidenc e of Roshell’s pr ior drug sales] only as sort of a complete story of the c rime and the relationship of the parties. And t hey ’re not to consider it for any other re ason.” After admitting Mar

tin’s testimony

that R o s h el l wa s “in the business of selling drug s,” the Court g a v e t h e f o l l o w i n g i n s t r

u c t i o nt o t h e j u r

y:

L adies a nd g entlemen, you have he ard that the defe nd ant may have be en involved in othe r criminal behavior other than that for which he is now on tria l. You may not consider suc h evidenc e to prove his dispositi on to commit such a crime a s that on tr ial . You

may on ly c on sid e r i t f

or the lim ite d p ur

po se a s st a te d. Th a t is
, whether or not this is a complete story of the c rime, that is, such evide nce ma y be considere d by

y ou wh et her the prior beha vior and the pr esent a lleg ed cr ime are log ic a lly re la te d o r c on ne c te d o r a re ne c e ssa

ry fo r a co mpl e te a c c ount t he re of or to show motive. That is, s uch evide nce ma y be conside red by

y ou if it tends to show

a mot ive of

the de fe nd ant fo r the c omm iss ion of the of fe ns e pr e se ntl y

c ha rg e d o r h is intent. That is, such evidenc e may be conside red by y ou if it tends to establish that the de fe nd ant a c tua lly

int e nd e d to c omm it the c ri me fo r w hic h h e is presen tly-12-

char g ed. Such evide nce of the other c ri m es , if consider ed by y ou for a ny purpose, must not be considere d for a ny other purpose than I

have just stated.

After the close of proof, the trial cour t ga ve the f ollowing jury

instruction reg ardingRule 404(b) of the Tenne ssee Rules of Evide nce:

I f f ro m th e te sti mony y ou

fi nd that a wi tne ss h a s b e e n c on vic te d o f a c ri me or has be en involved in cr iminal behavior
, y ou may only consider such testimony for i t s e f f e c t , i f an y, u p o nt h e w i t n e s s ’ c r e d i b i l i t y.

I f fr om the proof you find that the def endant ha s eng ag ed in cr iminal behavior other than that for which he is on trial, y ou may not consider suc h evidenc e of pr ior be havio r t o p ro ve his dis po sit ion to c omm it s uc h a

c ri me a s th a t on

tr ia l.

This evid ence may

only be conside red by

y ou for the limited purpose of de te rm ini ngwh e the r i t pr ov ide s: (a) the complete s t o ry of the c rime; that is, such evidenc e may be considere d by

y ou wher e the prior c riminal behavior a nd the pre sent

a ll eged crime are log ic a lly re la te d o r c on ne c te d o r i s n e c e ssa ry to prove the one cha

rg ed or the prior be h av i or is nece ssary for a complete a ccount ther eof. (b ) mot ive ; th a t is
, su c h e vid e nc e may be c on sid e re d b y

y ou if it t e nd s to sh owa mo ti ve o f t

his de fe nd ant f

or the c omm iss ion

of the of fe ns e prese ntly char g ed. (c) the def

endant’ s intent; that is, s uch evide nce ma y be consid er ed by
y ou if it t e nd s to e sta

blishthat th e de fe nd ant a c tua lly int e nd e d to commit the crime with which he is presently char g ed.

Such evidenc e of othe r cr iminal behavior, if c on s i d er ed by y ou for a

ny purp o s e , mu s t n o t b e c o n s id e r e d f o r an y p u r p o s e o th e r

th anth a t s p e c if

ic a ll y stated

. . . .

As an initial matter, becau s e R oshell did not object to the trial court’s jury instructions on this issue at trial and did not include this argument in his mot ion for a ne w trial, we conclude that he fa iled to preser

ve this issue for appea l. See Tenn. R. App. P. 3(e) (providing that the def endant’ s failure to raise a

n issue of er

ror, other than suffic iency of t he evidence or sentenc ing, in a motion for

a ne w tri a l w a ive s th a t is su e fo r p ur po se s o f a pp e llate re vie w) ; Tenn. R. App. P. 36(a) (stating that-13-

relief on appea l is g ener ally not a vailable wher e a par

ty is “responsible f

or an e rror ” or ha s “fa iled to take whatever

action wa s rea sonably

available to preve nt or nullif y t h e h ar m ful eff

ect of any

err or”)

. Despite Roshell’s wa iver of this iss u e fo r ap p el l ate review, w e fa il to see how the trial

c ourt ’s ru lin g in t

he 40 4( b) he ari ng wa s n ot c on sis te nt w ithits tw o in str uc tio ns to t

he jur y on thi s issue. I n rea ching this decision, we note that the T ennes s ee S u p reme Court has deter mined that “[e]vidence provingmotive nece ssarily serve s the purpose of co mpleting the story of the c rime.” L e a c h
, 1 4 8 S. W. 3 d a t 5 8 ; s e e a ls o St a te v

. Ro b e rt H o o d
, N o

. W2 0 0 4

- 0 1 6 7 8

- CC A

- R3

- D D
, 2 0 0 5 WL 2219691, at *22 (Te nn. Crim. App., J ackson, Sept. 13, 2005) (“Motive is a r eleva nt circumstantial fac t that refe rs to why a defenda nt did what he did.”). I n addition, we recog nize that the trial court’s

asser tion that the evidenc e was rele vant to the “re lationship of the parties” could ea sily be interpr eted
to m e an th a t th e e vid e nc e wa s r e le va nt t o Ro sh e ll’s in tent

and mot ive be c a

us e of his re la tio ns hip with Ma rtin. We ha

ve alre ady conclude d that the evidenc e of Roshell’s prior drug sales wa s releva

nt to prove his i ntent and mot ive and was ne cessa ry to refute the alleg ation that Roshell was g uilty of

a ca sual exchang e of dr

ug s. I n light of this c onclusion, the trial court’s instruc tions that the evidence could be c onsidered for the limit ed purpose of motive, intent, or providing the complete story of the crime w ere proper

.

Ros he ll’ s se c on d a

rgume nt r e g ard ingt

h e ins tr uc tio ns he ig hte nin g the ri sk that th e jur

y wo uld misuse the evidenc e is unavailing as well. The trial court’s instructions made it clea r t hat t he jury

wa s n ot t o c on sid e r t

he fa c t th a t Ro sh e ll w a s “ in th e bu si ness of se lli ngdr

ug s” a s p ro pe ns ity evidenc e. In order

to determine w hether

a jury instruction is proper, this court must consider the jury char g es i n their entirety . Otis v. Cambridge Mut. Fire I ns. Co., 850 S.W .2d 439, 446 (Tenn. 1992)

. Her e, both instructions expl ained, “ [Y] ou may not consider suc h evidenc e of pr ior behavior to prove his disposition to commit suc h a crime a s that on trial. . . .” We must presume that the jury followed the trial court’s two instructions r eg arding this e vidence

. See State v. Willi ams, 977 S.W .2d 101, 106 (Tenn. 1998) . Roshell is not entitled to relief on this issue.

II. Su ff iciency of the Evid ence. Ros he ll c on te nd s that th e e vid e nc e pr e se nte d a g a ins t hi m at trial wa s insufficient to convince any rational trier

of fa ct that he wa s g uilty

of the sale of coc aine bey ond a re asonable doubt. He also a rg ues that the e vidence , at most, could only convict him of

casua l exchang e of a

controlled substanc e under Tennes see Code A nnotated sec tion 39-17-418 (2006) be cause the evidenc e esta blished that “the tra

nsaction in questio n

w a s s p o ntaneous, ha

ppened without design, involved a very small a mount of drug s[,] and did not result in a ny pecunia

ry g ain for the defendant.” He fu

rt he r argue s that the c on fi de nti a l inf or mant a nd Mart in f a ile d to of fe r c re dib le evidenc e ag ainst him that would support his conviction. The S tate responds that the evidence wa s

mor e tha n suf fi c ie nt to fin d Rosh e ll g uil ty of the sa le of c oc a ine be y on d a re a so na ble do ub t. It a lso argues that the jury

hear d defe nse counse l’s attacks on the confide ntial informant’s a nd Martin’s

cre dibilit y

and chose to cre dit their testimony

.

Th e State , o n a

pp e a l, i s e nti tle d to the str on g e st l e g iti ma te vie w o f t he e vid e nc e and

a ll

rea sonable interf

ere nces w hich may

be dra wn from that e vidence

. State v. Bla nd, 958 S.W .2d 651,-14-

65 9 ( Te nn . 1 99 7) . Wh e n a de fe nd ant c ha lle ng e s th e su ff ic ie ncy of th e evi de nc e , th is C ourt mus t consider “ whether , afte r re viewing the evidence in the l ight most favor able to the prosec ution, any

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble doubt.” J ackson v. V irg inia, 442 U.S. 307, 319, 99 S. Ct . 2781, 2789 (1979). Similarly , Rule 13(e) of the Te nnessee Rules of Appellate Procedur e states, “F indings of g uilt in criminal ac tions whether by the trial cour

t or jury shall be set aside if the evidenc e is insuff icient to suppor

t a finding by

the trier of fac t of g uilt bey ond a re as o n ab l e doubt.” The requir ement that g uilt be found bey ond

rea sonable doubt is applicable in a ca se wher e there is direct evide nce, c ircumstantial evidenc e, or a combination of the two. State v. Matthews, 805 S.W.2d 776, 779 (Te nn. Crim. App. 1990) (citing State v. Br own, 55 1 S

. W

. 2 d 3 2 9, 331 (Tenn. 1977) , and F arme r v. State, 343 S.W.2d 895, 897 (Tenn. 1961) ). The tr ier of f act must eva luate the c redibility of the witnesses, deter mine the weig ht g iven to w itnesses’ testimony
, and must re concile all conflicts in the evidenc e. State v. Odom, 923 S.W. 2d 18 , 2 3 ( Te nn . 199 6) . When re vie wi ngiss ue s r e g ard ingthe su ff ic ie nc y of the e vid e nc e , th is Court shall not “rewe igh or ree valuate the evidenc e.” State v. Philpot t, 882 S.W .2d 394, 398 (Tenn. Cr im. Ap p. 19 94 ) ( c iti ngState v. Ca bb a g e , 57 1 S.W. 2d 83 2, 83 6 (T e nn

. 19 78 ), su pe rs e de d b y

statut e on other g rounds as stated in State v. Ba rone, 852 S.W.2d 216, 218 (Tenn. 1993) ). This court ha s often stated that “[a] g uilty verdic t by the j ury , approve d by the t rial j udg e, accr edits the testimony of the witnesses for the State and resolves all conflicts in f avor of the theory of the State.” State v. Bla n d
, 9 5 8 S. W. 2 d

6 5 1
, 6 5 9 ( T e n n

. 1 9 9 7 ) ( c it a ti o no mi tt e d )

. A g u il ty v e r d ic t a ls o “ r e mo v e s the presumption of innoce n ce an d re place s it with a presumption of g uilt, and the defe ndant has the burden of illust rating why

the evidenc e is insufficient to support the jury ’s ver dict

. ” I d. (citation omitted).

I n order to convict a defe ndant of the s ale of less than .5 g rams of coca ine under Tenne ssee Code Annotated se ction 39-17-417 ( 2006) , the State must prove beyond a rea sonable doubt that the defe ndant knowing ly sold le ss tha n .5 g rams of coca ine. T.C.A. § 39-17-417( a)( 3), (c )(2) (A) ( 2006). I n p re pa ratio n f or the “ buy -b us t” op e ratio n, De te c tiv e F ish e r s e arc he d th e c on fi de nti a l in fo rm a nt t o

ensure that the informant did not possess any other money o r d ru gs

. He photog raphe d the buy money , g ave it to the informa nt to buy the drug s, and wired the informant to monitor the transa ction by audio. He dr opped the infor mant in the are a wh er e the transa ction occur red. The confide ntial informant enc ountere d Martin, someone w ith whom the informant had pr eviously used drug s, and

a sk e d w he re he c ou ld g e t so me dr ug s. Ma rt in te sti fi e d that he c a lle d Ros he ll fo r t he dr ug s b e c a us e he ha d purc ha se d dr

ug s fr om him be fo re and

be c a us e Ros he ll w a s in

the bu sin e ss o f s e lli ngdr ug s. Martin and the c onfidential informa nt testified that the conf

idential informant g ave Rosh ell the money f o r th e dr u g s , an d in e xc h an g e , Ro s h e ll h an d e d th e c o c a in e to th e in f

o r ma n t. D e te ctive M o rt o nt es t i fi edt h at h e o b s er v ed t h e “b u y -b u s t ” o p er at i o n i n v o l v i n g R o s h el l v i s u al l y an d t h ro u gh

a ud io e qu ipm e nt, but he wa s un a ble to se e the ha

nd -t o- ha nd e xch ang e of

dr ug s f or mon e y be c a us e Roshell blocked his line of vision. Detec tive Morton also stated that he rec overe d the buy money from the store ’s ca shier just seconds a fter Roshell had purcha sed a bottle of w ater , compar ed the

ser i al n u m b er s , and confirmed that it matched the buy money . I t was unconte sted at trial that the

su bs tanc e Ros he ll g a ve to the inf or mant c on ta ine d c oc a ine ba se and we ig he d .2 g ra ms. Th e jur

y in Ros he ll’ s c a se c ho se to c re dit Ma rt in’ s and the inf

or mant’ s te sti mony that Ros he ll so ld the dr ug s to the conf idential informant duringthis transaction. Roshell’s ap pear ance following the ce ll phone-15-

call, his role in the drug transaction, and his proxi mity to the buy money following the transa ction

are sufficie nt fac ts upon which a re asonable jury could have found him g uilty . There fore , we conclude the evidenc e is sufficie nt to sustain R oshell’s conviction.

Co nclu sio n. We conclude that the trial court a cted within its discretion in admitting evidenc e of Roshell’s prior dru g s al es and prope rly instructed the jury . We further conclude the evidenc e wa s sufficient f

or a jury to find Roshell g uilty of sale of cocaine be y ond a re asonable doubt

. Acc ording ly , the judg ments of the trial c ourt are aff irmed.

___________________________________ CAMI L L E R. McMUL L EN, JUDGE