### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs M arch 12, 2002 STATE OF TENNESSEE v. OLI VIA WASHBURN Direct Appeal from the Circuit Court for He nderson County No. 99-065-2T1 Roy B. Morgan, Jr., Judge

No. W2001-01847-CCA-R3-CD - Filed June 11, 2002

A Henderson County Circuit Court jury foundthe defe ndant, Olivia Washburn, guilty of the sale and delivery of

.5 grams o

r more of cocaine , Class B felonie s, and ass essed two separa te $25,00 0 fines. The trial court sentenced the d efen dant as a Range I, standard offender , imposed an eight-year sentence to be served in the Tennessee Department of Corr ection, and merged the fines so that the defendant was ordered to pay a total of $25,000. On appeal, the defendant argues that the tria l court erred in concluding both that her statement to law enforcement officers was voluntary a nd that the evidenc e agains t her wassufficie nt, as well as in allowing into evidence a videotape not produced to the defense. These assignments are without merit. Howeve r, we conclude that the trial court erred in admitting t

he defe ndant’s s tatement

without consi d ering whether the probative value of the numerous references to other drug offenses outweighed their prejudicial effect. The judgments of the trial court ar e reversed, and

the matte r is rema nded for a new tri al. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

s of the C ircuit Court Reve rsed and Remanded for a New Trial A LAN E. G LENN , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J., and N ORMA M C G EE O GLE , J., joined. Mike Mosier, Jackson, Tennessee, for the appellant, Olivia W ashburn. Paul G. Summers, Attorney Genera l and Repo

rter; J. Ross Dyer, Assistant Attorney General; James G. Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION The defenda

nt was indi cted for

sale of c ocaine o ver .5 gr ams , delivery of cocaine over .5 grams, two counts of sale of methamphetamine, and two counts of delivery of methamphetamine, these offenses alleged to have occurre d on three occasions in October, November, and D ecember-2-

1998. Following a trial, shewas convicted only of the counts alleging that she sold (Count 1) and delivered (Count 2) more than .5 grams of co caine “on or about December 30, 1998.”She then timely appeale d these c onviction s. Upon re view, we conclude that it was err or to allow the

State to present testimony of

the defendant’s admission to numerous other drug offe nses without considering whether the prejudicial effect

of th es e a dm is si on s o ut we ig he d t he ir pr ob at iv e v al ue . A cc or di ng ly, we reve rse the ju dgmentsof conviction and r emand thi s matter f

or a new trial. FACTS Lynn Williams testified that she had known the defendant for ten years, getting to know her better after hiring a friend

of the defendant’s to work at the Amoco convenienc e store in Lexington. The defendant first came to the Amoco to see her f riend but later came because she a nd th e defendant had a “d rug rela tionship” that cont

inued unti l September of

1998. Williams said that she stole mone

y from he r employe

r in order to buy drugs. Learning of the theft, her employer agreed that if she paid the money back, no charg es would b e presse d against her. She testifie d that she

did repay the money and no charges wer e filed. On the da y tha t Williams and her employer made this agreement, Office r Michael Harper c ame to her house, as a friend, and asked her w hat happened at the Amoco conv enience store

. Harper came back the next day and asked wh o had been selling her the drugs. She told him and agreed to be a paid, confidential informant for the Lexington Police Department. In that capacity, Williams called the defendant and arranged to buy agram of cocaine on approximately October 29, 1998. Williams was fitted with a “wire” and searched by Officer Lisa Scott, while Officers Michae l Harper and Todd Bowman searched Williams’s car. The of ficers provided

her with $100 to buy the drugs from the d

efenda nt, and she d

rove to th e Smokehouse Tobacco Store in Lexington where the defendant worked. The offi cers fo llowed he r in a separate vehicle. At the drive-thru window of the store, the defendant gave her the drugs and she ha nded the defendant

the money. Williams said she drove immediately back to Officer Harper’ s residence and gave the drugs to H arper. Office r Scott removedthe wire

and sear ched he r again, and Off

icers Harper

and Bowman searched her car a second time. Williams said she agreed to be an informan t a second time on approximately November 28, 1998. She called the defendant again and arr anged to buy the drugs the next day. She was searched and wired by Officer Scott, and Officers H arper and Bowman searched her car

before she made the buy. They gave her another $100, and she we nt to the Smokehouse Tobacco Store’s drive -thr u window, gave the

defenda nt the mone

y, and the

defenda nt gave he

r the dru gs. She re

turned to Officer Harper’s residence, wher e she gave the drugs to Officer Bowman, and she and her car were searched again. Williams testified that she acted as an informant a third time at the end of December

1998. She said Officer Harper wante d her to make a videotaped drug buy with the help of the Tennessee Bureau of Investigation (“TBI”). She went to the

Jackson C ivic Cente

r to meet t wo TBI ag ents, one of whom was Gary Azbill. They put a microphone and video ca mera ins ide her car prior to the-3-

December

drug transaction. The agents asked her to ca ll the defe ndant and request two “eigh

t balls” of cocaine , which is a

packag e of coc aine con

taining thr

ee and a half gra ms. Williams said the defendant raised the price once before sa ying thatshe could get the two “eight balls” for $200 each. She and her vehicle were sear ched, and the TBI a ge nts gave her $400 to make the buy. She then boughtthe drugsfrom the d efenda nt a t the S mokehouse Tobacco Store and returned to Offic er Harper’s residence. Wil liams testifi ed that sh e gave th e drugs to Special Agent Azb ill. She sa id Officer Scott searched her, a nd she thought her car was searched w hile she was inside. Lisa Mays, the

TBI fore nsic scie ntist who tested the samples from the three drug purchases from the defendant, testified that the drugs from the first two sales contained .3 gr ams of methamphetamine, rather than coc aine. Ma

ys said tha

t a lay pers on could

mistake cocaine, which is a white powder, for methamphetamine, which is sometimes in the form of a white pow der. She also testified that the drugs from the December 30, 1998, transact ion we re determined to be 4.1 grams of cocaine. Michael Harper, an investigator for the Lexington Police Depar tment, t estified . His testimony corresponded with that of Lynn Williams regarding the October, November, and December

1998 drug

transac tions with th

e defendant. Ha

rper sa id that h e o riginally

talked to Willi ams, as a f

riend, about the money she stole from her employer, and was ne ver part of any investigation in the matter. Officer Harper a nd the other officers followed Williams each of the three times she bought the drugs from the defendant. The tapes they made from her wire for these sales were turned ov er to TBI

Special Agent Gary Azbill, as were the drugs recovered from each of the three transac tions. He s a id that he and the other officers did a thorough sear ch of the informant’s car each time and did not find any controlled substances. Gary Azbill, a

special agent wit h the TBI, testifie d that he b ecame i nvolved in this case when his boss instructed him to assist the Lexington Police Department in making an undercover drug buy. He and Special Agent Jimmy Barnes met with Williams, a nd Barnes installed a camera and transmitter

in her car. Officer Har

per gave him an audiotape of the informant’s December telephone conversation setting up the drug buy with the defendant. However, Azbill said there w ere no tapes of the October and November drug transactions. He said that he , Bar nes, Harper, and Bowman searched Williams’s car and found no contraband before she was sent to buy the drugs on December 30, 1998. Officer Lisa Scott

of the Le

xingto n Police Department testified that she searched Lynn W illiams on October 29, 1998, and November 28, 1998, at Office r Harper’s residence bef

ore an d after Williams b ought the d

rugs. She

also put a

wire on W

il liams on those two dates and never found contrab and on Williams duri ng her se arches. Officer Scott testified that she did not search Williams on December 30, 1998. Officer Tod d Bowman of

the Lexin gton Police

Departm ent testif ied, and m

uch of his testimony corresponded with that of Office r Harper’s as to the drug transactions between the informant and the defendant in October, November , and December of 1998.-4-

Jimmy Barnes, a special agent with the TBI, testified that he made an a udiotape of

th e December drug transaction betwee n Williams and the defendant from the wire that was placed on Williams. He also made a videotape of the transaction by placing a small camera inside Williams’s car and later merged the audiotape and the videotape of the De cember

30, 1998, d

rug sale . The State askedAgent Barnes to identify an une dite d videotape that recorded the entire Dec ember drug transaction from the t

ime the offic ers turn ed the ca mera “o n” to the t

ime that W

illiams turned over the drugs at Officer Harper’s r esidence. Defe nse coun sel objec ted to the tape, cl aiming tha

t this long, unedited version of the December drug transa ction had not been provided to him. He said that he was only

given a shorter videotape that only covered the actual drug tr ansaction. The trial court allowed defense counsel to view the entire unedited version of the tape and question Barnes outside the presence of

the jury before admitting the tape into evidence. Barnes testified that he was the one who turned the tape “off” when Williams returne d to Harper’s residen ce a fter the December drug transaction. The prosecution then rested its case. The def endant te stified th at Lynn W illiams ha d called her in De cember

to ask if she

could get a dietary supplement called Vitablend, and on Decemb er 30, 19 98, she so ld Williamsa fairly large port ion of Vita

blend. Th

e teleph one conv ersation s she had with William s from Oc tober to December

of 1998 were about Vitablend. She also said that since Vitabl end is a white powdery substance, it looks like cocaine. She testified that she was held for four hours after being arrested without being allowed to spea k with an attorney or call her father. She said that Specia l Agent Azbill “conco cted” he

r stateme nt and tha t she made

no admissio n of guilt

to the officers at any time. She said that she never read or signed the statements about which Spec ial Agent Azbill testified. She denied sellin g methamp hetamine to Williams on October 29 or November 28 of 1998, or selling cocaine to her on December 30, 1998. After the defe nse had r ested, Lynn William s was rec alled by t he State a s a rebut

tal witne ss, and denied that she had bought dietary supplements from the defenda nt at any time. ANALYSIS I. Erroneous Admission of Defendant’s Statement The defenda

nt argue s on appe al that the trial cou rt e rred i n admitting

her state ment both because it was involuntary and because it included evidence of c riminal conduct

for which she had “neither been charged nor convicted.” A. Volunta riness of

the State

ment The defendant

argues that her

statemen t to the poli ce was in

voluntar y, appar ently bec ause of “her emotional state at the time of her arrest, ” her request to ha

ve an att orney or her fat her pre sent, and because she gave the statement to avoid being prosec uted for the marijuana found in her car.-5-

We have one initial consideration as to whether the defendant’s statement was“voluntary.” Agents Azbill and Barnes testified at the hearing on the motion to suppress only that the defendant was advised o f her “ Miranda rights,” without specifying the specific rights of which she was advised. Simply because a “card” listing Miranda rights is read to a suspect, as apparently occurred here, does notmean that we must assume that the advice was complete and accura te. If there is an advice

of rights issue, the record should reflect the specific r ights of which the defendant was ad vised. See Ex parte Price , 725 So. 2d 1063, 1070 (Ala. 1998), cert. denied , 526 U.S. 1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012 (1999). However, it is unnecessary for us to ascertain in the instant appeal whether the shorthan d term “ Miranda rights” is adequate, for the defendant testified during the hearing that she was aware of her Miranda rights, having

been ad vised of t hem durin g two pr

ior arre sts. In Miranda v. Arizona , the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or i nculpato ry, stemming from custodial interrogation of the defenda nt unless it demonstrates the use of procedural safeguards e ffective to secure the privilege against self-incrimination.” 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966). The privilege against self-incrimination is spelled out in the text of the Fifth Amendmen t, which states that “no person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. Where an “interrogation continues without the presence of an

attorney and a statement is taken, a heavy burden rests on the government to demonstrate t hat the defendant knowingly

and intel ligently w aived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724 (citing Escobedo v. Illino is , 378 U.S. 478, 490 n.14 (1964)). The Court explained that “[t]he requirement of war nings and waiver of rights is a fundamen tal with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Id. at 476, 86 S. Ct. at 1629, 16 L. Ed. 2d at 725. Article

I, section 9 of the Tennessee Constitution states that “in all criminal prosecutions, the accused . . . shall not be compelledt o give evidence aga inst himself.” Tenn. Const. art. I, § 9. Whether a waive r of this right is voluntarily, knowingly, and intelligently made is determined by the totality of the circumstances under which the rights were waived. See State v. Callahan , 979 S.W.2d 577, 581 (Tenn. 1998). However, this court has stated that a cour t may not conclude t hat a defendant’s confess ion was c onstitution ally in v oluntary based on the defendant’s “subjective perception” that it was involuntarily obtained

. State v. Smith , 42 S.W.3d 101, 109 ( Tenn. Cri m. App. 2000), perm. to appeal denied (Tenn. 2001) (citing Smith , 933 S.W.2d at 455). At the hearing on the def

endant’ s motion to su

ppress, Special Agent Gary Azbill described the circumstance s surroun ding the de fendant ’s statem

ent: Q Di d you advise

[the def endant] as far a s why she w as b ein g picked up and/or arrested? A Yes, sir, we did. At the time we arrested her at her workplace, we told her why she was being arrested.-6- Q And, was she advised of her Miranda rights? A Yes, sir, she was, twice as a m at ter of fa ct. That’ s not usually commonplace, but Special Agent Barnes advised her of her Miranda rights there at

the store, and, of course, she was transported, and then I advised her ag ain prior to starting the interview at the police departm ent.

. . . . Q Would it be fair to say that she was very cooperative with you? A Yes, sir, she was. We were wanting her c ooperation, too. S h e was cooperative, and we we re hoping to go furt

her with t

his investiga tion with ot

hers tha t were su pplying he

r with dru gs. Q Did she at any time request a lawyer? A Absolutel

y not. Q Did she at

any time r

equest th at the inte

rview sto p untilshe had the chance to converse with anybody about the situation? A No, sir, sh

e didn’t. Q Was there a

ny type of

discussio n in rela

tion to this i ntervie w a s far as negotiation or compromise in relation to her charge ? A No, sir. Q Were the statements given voluntarily or involuntarily? A They were voluntary. Agent Azbill said he did not discuss with the defendant the setting of a bond and told her that she would not be charged with possession of marijuana. However, he testified only in general terms as to the statement without relating in detail what the defe ndant had told him: Basicall y she admitted to selling drugs there at her workplace from December of

‘98 I think

‘til March or April of ‘99. We didn’t get into specifics because

we were kind of protecting the cases to the-7- particular incident we were concerned about, the undercover buys that happened there, but we talked about other instance s with othe

r sales, and she admitted to selling methamphetamine, cocaine at the store. During the hearing, the defendant testified that she was “ver y upset” a nd “[v]e ry unstab le emotionally” at the time

of t he statement. She asked that her father be ca lled, and was told that would not be done. She was not allowed to telephone her father or make a ny other calls. She asked “for any kind of legal counsel” to tell her wha t she “needed to do,” but was told that she “did not needanyone. ” She wastold that by coopera ting she wo

uld get a low er bond and would not be prosecuted for the marijuana found in her ca r. At the conclusion of the hearing, the trial court found that the defe ndant’s statement was voluntary: I do find from the proof today that this Defendant did freely and

voluntar ily waive her Mirand a

rights at t

he time and gave thi s statemen t. There are some issues I’m sure that can be brought out if this goes to jury tria

l. Mr. Mosie

r and Mr. Martin

will both be

able to skillful ly do that, but she had been advised of Miranda before . There ’s some dispute as to whether she was advised once or twice on this occ asion, butby her own admissions atleast once. It’s preferable ce rtainly that things are in writing, but there’s no rule requiring that. She did give written consent to search. I think under t he circumstances, and I do have to look at the totality of the circumstances, that she was properly adv is ed and, again, that she free ly and voluntarily raised those rights and gave whatever statement she gave. Howeve r, the tri al court

reserv ed ruling

on the use

to which th

e stateme nt could be

put at tria

l: And as to the utilization of those statements for purposes of

trial, I’ll have to addre ss that pri or to any t rial. The factual findings made by the trial court at a hearing on a motion to suppress are binding on the appellate court unless the evidence preponderates against them. State v. Ro ss , 49 S.W.3d 833, 839 (Tenn. 2001). Having the opportunity to view the witnesses as they testify enablesthe trial court to assess their credibility, re solve evi de nt ia ry c onflicts and determine the weight and value to be given the evidence. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). We are not bound by the trial court’s conclusions of law, State v. Simpson , 968 S.W.2d 776, 779 (Tenn. 1998), and review de novo1 At the m otion to sup press , as we hav e pre viou sly set o ut, t he tri al c ourt s aid, aft er det ermini ng that the defendant’s statem ent w as vo lunta ry, “[A ]s to the utilization of tho se statem ents for p urp oses o f trial, I’ll have to ad dress that prior t o any tria l.” Thus, the St ate’s charact eri zation of the trial cou rt’s rulin g as to the state me nt ap pea rs no t to have been entir ely accurat e. -8- its application of the law to the facts. State v. Daniel , 12 S.W.3d 420, 423 (Tenn. 2000). The evidence from the motion to suppress hear ing provides sufficient proof to rebut the defendant’s claim that her statement was not

voluntar y. The re cord doe s not prep onderat e agains t the trial court’s determination that the defendant was advised of her Miranda rights an d voluntar

ily waivedthese rig

hts when she made her statement to Special Agent Azbill. Thus, we conclude that the trial court did not err when it refused to suppress the defe ndant’s statement. B. Irrele vant Natur

e and Prej udicial Eff

ect of D efendant ’s State ment The defendant argues on appeal that her statement, as recited

at trial b y Agent Az

bill, should nothave been admitted because it was irrele vant and violated Tennessee Rule of Evidence 404(b). The State responds on ap peal that the statement was admissible to show identity and common scheme or plan. At trial, defense counsel objected as Agent Azbill was asked on direct e xaminatio n to recite the defe ndant ’s statement and, at a bench conferenc e following an objection to this testimony, defense counsel explained why the statement should not be admitted:

MR. MOSIER: Judge, he’s going into a lot of conduct p

rior to the se three occasions that she’s been neither charged with or convicted of. It’s a big catharsis where she admits a lot of things in very genera l terms, bu t it has nothing to do –They don’t even ask her a question about the se three

buys. It ha s nothing to

do with it. MR. MA RTIN: Y our Honor, we’ve been through all of this on the Motion to Suppress the Court has previously heard and has ruled that the statement was eligible to be admitted and proper, and we feel like that we’ re entitl ed to do tha t. 1 THE COURT : I remem

ber we w ent throu gh the Moti on to Supre ss [sic] and I overruled the defense motion. Now whether discussions have been ha

d prior to this very moment about the inadmissibility of the statement . . . MR. MOSIER: Well, Judge I said something that day, and, o f course, that’s – I

didn’t re ally expect Mr. Ma rtin to seek to introduce it becau se – Would

you like to

look at it?2 Although t he Sta te a rgues on appeal that the de fendant

did not objec t at

tri al t o the prejudici al effect of her statem ent, we believ e that th e pro ceed ings d urin g this b enc h co nfer enc e suff iciently rai sed the iss ue, which als o was prese nted in the m otion for n ew trial. -9-

THE COURT : Well, I r

emember some of it. MR. MOSIER: [Mr. Martin], you can probably get yours easier than I can get mine. THE COURT : Mr. Mosier, do you agree in this statement I’m now viewing has been deemed to be admissible in the past over the objection that she does cover the time period in question? MR. MOSIER: From December of ‘98 to March of ‘99. THE COURT: Some of which o f these prior counts are included. Any further argument you want to make? MR. MOSIER: No, sir. Wha t the Co urt ruled on was that that statement was volun

tarily giv en . I just don ’t think it’ s releva nt to what she’s on t

rial her e for tod ay. They

talked a bout a lot of stuf

f in there. 2
THE COURT: Based upon defense’s objecti on as to re levancy , it hav ing alread

y been ru led the sta

tement wa s freely

and volun

taril y give n after advising her of her rights, I’m going to allow the statement to be admitted today. You may proceed. Since the contents of the statement had not been recounted by the State’s witnesses during the hearing on the motion to suppress, the trial court heard this statement of the def endant for the first time as the jury also was hearing it over the defense objec tion: Q Officer

Azbill, after you arrested [the defe ndant] on or a

bou t June the 8th of

1999 when

you all went to the Lexington Police Department

to interview her, d id y ou advise her of her Miranda rights? A Yes, sir, I did. Q An d thereafter, did she subsequently voluntarily give you a statemen t? A Yes, sir, she did.-10- Q What did she tell you? A She told me

she’d been selling cocaine and methamphetamine at the Smokehous e from Decemb er of ‘ 98 through March of ‘99 and that she regularly sold to Kelly Clenny at the store a nd bro ught out some mari

juana at the store every tw o or thre e days. She also state d she bought her co caine f rom two bla

cks in Jackson named Ty

rone and Travis. She stated she didn’t know what their last name was, but she knew where they lived and it was nea r Jackson State college. She said she’d bought off these two guys approximately 50 times, paying $400 per eight ball. She stated that this Tyrone had a baby blue BMW and that Travis ha d n o car, and bothof the subjects were thought to have lived in and around Wallace Road, but she would meet a t those new apartments near Jackson State. She also stated she got he r methamphetamine f rom Debb ie who’s a cook at

the Bull Market at Parker’s Crossroads. She said she purchased directly from Debbie five times, one gra m at a time. Prior to that she stated R ob Hamilt on was furnishing her the methamphetamine and she h ad gotten methamphetamine f

rom him approximately15 times, a gram at a time. Du

ring this ti me she sta

te [sic] Rob was buyin g methamphetamine from Mar sha Bedwe

ll. She also state d her will

ingness to cooperate with authorities and admitting to selling cocaine and meth [ sic] at he r fathe r’s business, the Smok ehouse. She wanted to help authorities to catch Barba r a Keller, a lady in Jackson. She stated Ms. Keller had got her addicted to cocaine

and they h ad started smoking ma riju ana to gether. She stated that Kell er had be

en busted recent ly in Jackson for possession of cocaine and was still in jail, or was not out of jail yet. Q Would

it be clear from her statement the time frame that she had mentioned covered the sale in which you were involved? A Yes, sir. This court will notreverse a trial court’s decision to admit evidence based on its relevance unless the trial court has abused its discretion. See State v. D uBose , 953 S.W.2d 649, 652 (Tenn. 1997). Abuse of

discreti on occur s when the “trial c ourt appl

i ed an inco rrect legal standard, or reached a decisi on which i s against logic or r

easoning that cau sed an inj ustice to t he party-11-

complaining.” State v. Shuck , 953 S.W.2d 662, 669 (T enn. 1997) (citing Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996)). Accordingly, “[a]lthough a decision made unde

r this stan dard will notbe ligh tly re versed on appeal, the discretion of the trial court is not without limits.” State v. Gilliland , 22 S.W.3d 266, 273 (Tenn. 2000). Here, no legal standard was applied at trial bec ause

the trial court was misadvised as to the scope of its prior ruling. In assessing this issue, we first note that, during questioning, the defendant had not even been askedif she had sold methamphetamine from the Smokehouse on the first two dates specified in the indictmen t, although she had said t

hat she ha d done so b eginning in December 1998. At the motion to suppress , Agent Az

bill explained the general nature of the stateme nt by saying that the defendant was not asked about sal es on spec ific date s becaus e office rs did not w ant to reveal to he r the ide ntity of their informan

t. According to the statement, the defendant admitted her guilt as to a number of

drug off enses: 1. “selling cocaine and metha mphetamine at the Sm

okehouse from December of ‘98 though March of ‘99” ; 2. “regularly” selling drugs to “Kelly Clenny at the store”; 3. bringing “some marijuana at the store every two or three days”; 4. buying cocaine from Travis and Tyrone “a pproximately 50 times, paying $400 per eight ball”; 5. purchasing methamphetamine “from Debbie [a cook at the Bull Market at Parker’s Crossroads] . . . five times , one gra m at a time”; 6. buying methamphetamine f rom Rob Ha

mi lt on “appr

oximately 15 times, a gram at a time”; and 7. smoking marijuana with Barbara Keller. The State argues on appealthat, apparently, the entire statement was admissible to prove “identity” and “common scheme.” We respectfully disagree that either of these late presented theories justifies bypassing the trial court’s being allowed to consider this issue. First, it is unclear how “identity” was an issue at the trial. The videotape of the December incident showed the defendant at the drive-thru window of the Smokehouse, passing a sack to the informant and receiving money in payment. The defendant admitted that it was she at the window butsaid that a diet aid, rather than illegal drugs, was in the sack. Thus, “identity” was not an issue.-12-

The State also argues that e vidence of other drug involvement wa s admissibl e to sh ow a “common scheme,” an evidentiary theory which is explained in Neil P. Cohen et al., Tennessee Law of Evidence § 4.04[12][a] (4th ed. 2000):

In Tennessee, three categories of “common scheme or plan e vidence are recognized: (1) distinctiv e designsor “signa ture” c rimes; (2) a large

r, contin uing plan o

r conspir acy; a nd (3) a common or insepar able plan or transaction, sometimes ref er red to as the “sam

e transaction.” Comparing these categories with the facts of the indictments for which the de fendant was charged and the pa

noply of dr

ug involve

ment admit

ted to in the defendant’s statemen

t, we are unable to divine any sort of “common scheme,” other tha n a prope nsity to buy , sell, an d useillegal dr ugs. In fact, the statement covers such a gamut of offenses , it is difficult to imagine a unifying thread which would bind them. For instance, while it is arguable that proof as to sales of c ocaine an d methamphetamine at the Smokehouse, even after that for which the defendant was charged, might be releva nt, this rationale could not be applied to much of the remainder of the statement. The vague admission that the defendant “regularly sold to Kelly Clenny at the store” requires, to be considered part of a “common scheme,” that the sales were of drugs and the “store” was the Smokehouse. Even then, however, no time frame was supplied for these “ sales,” or explanation as to whethe r the y occurred at the dr ive-thru window asd id the c harged offenses, in the parking lot, or inside the business. Further, it is unclear how the defendant’s admission o f purc hases of cocaine “approx imately 50 times, paying $400 per eight ball” is relevant to the three incidents for which she was being prosecuted. The same problem exists for the purcha ses of methamphetamine “from Debbie . . . five times, one gram at a time.” In fact, the wide variety of of fenses recounted in the defendant’s statement create additional problems bec ause they, like the charges being prosecuted, were all drug offenses and prese nt a law school exam-like exercise in evidentiary a dmissibility. As a result o f the man

ner in which the defendant’s statement came befor e the jury, we were denied the benefit of the trial court’s expertise in balancing the prob ative value of this statement versus its prejudical effect. Even a cursory application of Tennessee Rules of Evidence 403 and 404 demonstrates the substantial evidentiary problems presented by the statement’s broad admissions as to subsequent criminal activity. See State v. Maddox , 957 S.W.2d 547, 551-53 (Tenn. Crim. App. 1997). The prejudicial effect of much of this statement cle arly outweighs its probative value, and we cannot conclude beyond a reasona ble doubt that it did not affect the verdict in this matter. Accordingly, we reverse the judgments of conviction and remand this matter for a new tria l. Should the defenda

nt, follow ing a ret

rial, ag ain be co nvicted o f both cou nts, the trial

court should consider whether the counts should be merged into a single conviction. Because of the possibility of further appellate rev iew, ho wever, we will consider the defendant’s remaining issues.-13- II. Admissibility of t

he Unedite

d Videotape The defendant argues that the trial court erred in allowing the longer videotape to be entered into evidenc e becau se she wa s not given a copy of it prior to the trial , and that

the failu re of the State to provide a

copy viola

ted Rule 16 of the Tennessee Rules of Criminal Procedure and Rule 32 of the Local Rules of Practice for the Twenty-Sixth Judicial District. On appeal, the defendant argues that harm occurr ed because “the defendant and he r counsel tediously prepa red adefense in this case based upon the materials that had bee n furnished in the discovery proc ess by the State.” The proper remedy, acc ording to the defendant, is a “reversal of [the defendant’s] conviction and the entry of a judgment of a cquittal.” Howeve

r, we re spectfully disagre e with this argumen t. Rule 16(a )(1)(C) of the Te

nnessee Rules of Cr

iminal Proc edure pr

ovides asfollows: Documen ts and Tangible Objects. – Upon request of the defenda

nt, the State shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, t angible objects . . . which are within the possession, custody or control of the State, and which are material to the preparation of the defendant’ s defense or are intended for use

by the State as evidence in chief at the trial, or were obtained from or belong to the defendant. Tenn. R. Crim. P. 16(a)(1)(C). This court has previously determined that “evidence should not be excluded except

when it is shown tha

t a party is actually prejudiced by the failure to comply with the discovery order and that the prejudice cannot be otherwise eradic ated.” State v. Garland , 617 S.W.2d 176, 185 (Tenn. Cri m. App. 19 81). Tennessee Rule of Criminal Procedure 16(d)(2) provides guidance for dealing wit h claimed d iscover y violation s: Failure to Comply with a Request. – If at an y time during the cou

rse of the p roceed

ings it is br

ought to the

attention of the court that a partyhas failed to comply with this rule, the court may order such partyto permit the discovery or inspection, grant a conti nuance, or prohibit the party from introducing evidence notdisclosed, or it may enter such other

order as it deems just under the circumstances. The court may spe cify th e time, place, and manner of making the disco very an d inspection and may prescribe such terms and conditions as are just. Tenn. R. Crim. P. 16(d)(2). Similarly, in State v. Ca dle , 634 S.W.2d 623, 625 (Tenn. Crim. App. 1982), this court reviewed the different sanctions ava ilable when Rule 16 has been violated:-14- From a readi ng of [Rule

16(d)(2 )], it bec omes obvi ous that the sanction to be applied for non-compliance must fit the circumstances of the individ

ual case . Thus, in

some instances mere inspection .

. . may serv e to protect the defendant’s interests. In other situations, a continuance may be required to give the accused a chanc e to meet the State’s previously undisclosed evidence, or the court may be required to exclude the evidence altogether. The suitability of an individual alternative will always depend on the nature of the statement

and the basis upon which it is being challenged. Here, the trial

court allowed defense counsel to view the videotape and question Special Agent Barnes about it out of the presence of the jury. The tape was then shown to the jury and entered into evidence. At

the conclusion of Barnes’s testimony, the trial court made an additional statement as to the tape:

So based upo n what I heard and saw today, I fee l that we had t o proceed over def ense objection. Plus, I want to note, under the rule, Rule 16, dealing with discove ry, I did allow defense counsel the opportuni ty outside the presence o f the jury to view the entire tape and question the witness about that tape before weprocee ded on wit h the introduction of that tape into evidence. We resp ectfully

decline to conclu de that the trial c ourt err ed in this regard. Thevideotape provided to the def

endant showed the

exchan ge of the

small bag f

or cash a nd, with the conversation, appears to be more inculpatory than the longer version without sound. We conclude that the tria l court resolved the dispute in a reasonable fashion. Tenn. R. Crim. P. 16(d)(2)

. This assig nment is without meri t. III. Sufficiency of the Evidence The defendant

argues that there was insufficient evidence to support her conviction for the sale and delivery of .5 grams or more of coc aine. Whenever

a defendant rai ses suff

iciency of the ev idence o n appea

l, this court must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). See also State v. Evans , 838 S.W.2 d 185, 190- 92 (Tenn . 1992); Sta te v. An derson , 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992); Tenn. R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence is insufficient to support the findings by the trier of fact of guilt beyond a reasonable doubt.”). All questions involving thecredibi lity of witnesses, the weight and value to be given the evidence, and all factual issues are r esolved by the trier of fact. See-15-

Statev. Pappas , 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verd ict by the jur y, approv ed by the trial judge, ac credits t he testimo ny of the witnesses f or the Sta te and re solves al l conflic ts in favor of the theory of the State.” State v. Grace , 493 S.W.2d 474, 476 (Tenn. 1973). A jury conviction removes the presumption of innocence with which a defendant is initially cloaked and replac es it

with one of guilt, so that on appeal, a convicted defendant has the burde n o f demonstrating that the evidence is insufficient. See State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982). The defendant was convicted of two counts of violating Te nnessee Code Annotated section 39-17-417(c)(1) (1997), knowingly selling .5 grams or more of coca ine and knowingly

delivering .5 grams or more of cocaine. At trial, the State presented an unedited videotape showing the drug transaction between the informant and the defendant on December 30, 1998. The videotape showed the informant pulling up to the Smokehouse drive-thru window, handing the defendant money , and receiving a small ba

g from t he defe ndant in r eturn. Th e conten ts of the bag were turned over to the TBI and wer

e found to contain 4.1 grams of cocaine. We have already concluded that the trial court did not err in entering the unedited videotape into evidence. Taki ng into accoun t the evidence of the unedited videotape of the December 30, 1998, drug transaction between the informant and the def endant as well as other evidence in the record, we conc lude ther

e is more than sufficient evidence to supp ort the defendant’s convictions for the sale and delivery

of .5 grams or more of cocaine . This issue is without merit.

CONCLUSION Based upon the foregoing authorities and reasoning, we reverse the defendant’s convictions and rema nd the mat

ter for a new tria l.

___________________________________

ALAN E. GLENN, JUDGE