IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 24, 2009

STATE OF TENNESSEE v. LAYTHANIEL HANEY

Appeal from the Circuit Court for Cocke County

No. 0380 Ben W. Hooper, II, Judge

No. E2009-00875-CCA-R3-CD - Filed May 11, 2010

The Defendant was indicted for sale and delivery of less than .5 grams of a Schedule II

controlled substance, both Class C felonies. A jury acquitted the Defendant of the sale of a

Schedule II controlled substance but convicted him of the lesser-included offense of simple

possession or casual exchange of a Schedule II controlled substance. The jury also convicted

the Defendant of delivery of a Schedule II controlled substance. The trial court sentenced

the Defendant as a career offender to fifteen years confinement for the delivery conviction.

In his appeal as of right, the Defendant raises five issues for this court’s review: (1) whether

the verdicts were inconsistent; (2) whether the convictions for simple possession or casual

exchange merge with the delivery conviction; (3) whether the Defendant received a fair trial

when jurors were found sleeping during the presentation of evidence; (4) whether the

evidence was sufficient to convict the Defendant of delivery of a Schedule II controlled

substance; and (5) whether the Defendant received a fair trial when he was intoxicated and

unable to assist trial counsel at the time of trial. We conclude that the issues regarding the

sleeping jurors and the Defendant’s alleged intoxication are waived because the Defendant

failed to file a timely motion for a new trial. Following our review, we conclude that the

verdicts were not inconsistent and that the evidence wassufficient to support his convictions.

However, we conclude that the judgments do not properly reflect the jury’s verdict or the trial

court’s merger of the offenses Therefore, we remand the case for correction of the

judgments.

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

in Part; Case Remanded for Correction of Judgments.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and NORMA MCGEE OGLE, JJ., joined.
J. Derreck Whitson, Newport, Tennessee, attorney for appellant, Laythaniel Haney.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; James B. Dunn, District Attorney General; and Joe C. Crumley, Assistant

District Attorney General, attorneys for appellee, State of Tennessee.

OPINION

Initially, we note that the record reflects that the judgments of conviction were filed

on December 11, 2007. The Defendant filed a motion for new trial on January 11, 2008, one

day beyond the filing deadline. Tenn. R. Crim. P. 33(b). It appears that neither party was

aware of this oversight because it was not mentioned by the trial court or by either party on

appeal. The motion for new trial was heard on December 16, 2008 and denied by written

order on April 22, 2009. The Defendant filed a notice of appeal on April 27, 2009.

The thirty-day filing deadline of a motion for new trial is mandatory, jurisdictional,

and may not be extended. Tenn. R. Crim. P. 45(b); State v. Martin, 940 S.W.2d 567, 569

(Tenn. Crim. App. 1997). Consequently, “[a] motion for new trial which is not timely filed

is a nullity.” State v. Dodson, 780 S.W.2d 778, 780 (Tenn. Crim. App. 1989). Subsequent

review or considerations by the trial court or agreements of parties to hear an untimely

motion will not validate the motion for the purposes of appellate review. Id.; State v. Davis,

748 S.W.2d 206 (Tenn. Crim. App. 1987). Failure to file a timely motion for new trial will

result in the waiver of all appellate issues that would result in the granting of a new trial.

Dodson, 780 S.W.2d at 780; State v. Williams, 675 S.W.2d 499, 501 (Tenn. Crim. App.

1984). Therefore, we conclude that the issues raised by the Defendant regarding the sleeping

jurors and his alleged intoxication are waived. We acknowledge that this court cannot review

those grounds upon which a new trial was sought but may review those issues which would

result in dismissal. Tenn. R. App. P. 3(e); Williams, 675 S.W.2d at 501; see also State v.

Givhan, 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). Therefore, the remaining issues

regarding the sufficiency of the evidence, the alleged inconsistent verdicts, and merger may

still be reviewed by this court.

While we conclude that the remaining issues may be reviewed even though the motion

for new trial was untimely, Rule 4(a) of the Tennessee Rules of Appellate Procedure still

requires the filing of a notice of appeal within thirty days of the entry of judgment or,

pursuant to Rule 4(e), the entry of an order denying the motion for new trial. “Because the

untimely motion was a nullity, it did not toll or defer the thirty-day period for filing the notice

of appeal, which expired on [January 10, 2008].” Davis, 748 S.W.2d at 207. Therefore, the

notice of appeal in this case was also untimely. See, e.g., State v. Patterson, 966 S.W.2d 435,

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440 (Tenn. Crim. App. 1997); Davis, 748 S.W.2d at 207. The timely filing of a notice of

appeal is not a prerequisite to the jurisdiction of this court, and this court may waive the

requirement in the interest of justice. Tenn. R. App. P. 4(a).

However, this court has warned “the bench and bar alike . . . that there is no automatic

appeal of these issues to this [c]ourt.” State v. John A. Turbyville, No. E2002-00629-CCAR3-CD, 2003 WL 21983022, at *1 (Tenn. Crim. App. Aug. 21, 2003). In order to secure

review of issues relating to the sufficiency of the evidence and sentencing, a timely filed

notice of appeal must occur, or a waiver of the timely filed notice of appeal must be sought

and obtained in this court. In this case, the record is clear that the Defendant, the State, and

the trial court were not aware of his untimeliness in regard to the filing of the motion for new

trial or notice of appeal. Therefore, in the interest of justice, we will review the Defendant’s

issues regarding the sufficiency of the evidence, the alleged inconsistent verdicts, and

merger.

I. Sufficiency

The Defendant contends that the evidence was insufficient to sustain his conviction

for delivery of a controlled substance. The State responds that the evidence was sufficient

to support the conviction.

An appellate court’s standard of review when the defendant questions the sufficiency

of the evidence on appeal is “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. The appellate

court does not reweigh the evidence; rather, it presumes that the jury has resolved all

conflicts in the testimony and drawn all reasonable inferences from the evidence in favor of

the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984); State v. Cabbage, 571

S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness credibility, conflicts in

testimony, and the weight and value to be given to evidence were resolved by the jury. See

State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). “A verdict of guilt verdict removes the

presumption of innocence and replaces it with a presumption of guilt, and [on appeal] the

defendant has the burden of illustrating why the evidence is insufficient to support the jury’s

verdict.” Id.; State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). “This [standard] applies

to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of

direct and circumstantial evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn.

Crim. App. 1999).

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The Defendant was convicted of delivery of less than .5 grams of a Schedule II

controlled substance, which required the State to prove, beyond a reasonable doubt, that the

Defendant knowingly delivered less than .5 grams of a Schedule II controlled substance.

Tenn. Code Ann. § 39-17-417(a)(2), (2)(A). “‘Deliver’ or ‘delivery’ means the actual,

constructive, or attempted transfer from one person to another of a controlled substance,

whether or not there is an agency relationship.” Tenn. Code Ann. § 39-17-402(6).

These charges stem from an undercover drug operation in which Officer Neal Seals,

who at the time of the transaction was working for the Sevierville Police Department Drug

Task Force, and a confidential informant, Dawn Hicks, purchased cocaine from the

Defendant. Most of the events of the day and the entire transaction between the Defendant

and Ms. Hicks were recorded on a digital recording device.

On November 28, 2006, Officer Seals and Ms. Hicks met the Defendant at an Exxon

gas station where the Defendant got into their car. The Defendant began directing them to

a house in Cocke County so that they could purchase one hundred dollars worth of crack

cocaine for the Defendant. As Ms. Hicks was driving, the Defendant “began smoking crack

cocaine in the back seat” of the vehicle. The Defendant then offered some of his crack

cocaine to Officer Seals, who declined the invitation and said, “Naw, I don’t do that.” Ms.

Hicks told the Defendant that Officer Seals was purchasing the crack for his “old lady.”

After Officer Seals refused to smoke the cocaine, the Defendant “kind of got quiet and didn’t

say too much more after that.”

When they arrived at the house, Ms. Hicks got out of the vehicle and talked with the

Defendant. The conversation between Ms. Hicks and the Defendant was not recorded

because Officer Seals had the recording device with him in the car. According to Ms. Hicks,

the Defendant told her that “he didn’t want to have nothing to do with [Officer Seals]. He’d

deal with me but not [Officer Seals].” Eventually, Ms. Hicks gave the Defendant the one

hundred dollars that was given to her by Officer Seals and asked the Defendant for “a

1

hundred dollars worth” of cocaine. The Defendant then instructed Ms. Hicks and Officer

Seals to go buy him a candy bar from a gas station. Officer Seals and Ms. Hicks drove back

to the Exxon gas station and purchased a candy bar. At some point, Officer Seals gave Ms.

Hicks the recording device in case they were separated again.

The money was obtained through the “Drug Task Force Confidential Funds.” 1

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Asthey were driving back to the house, Officer Seals “noticed [the Defendant] driving

from - - or riding a bicycle from the first house on the left, which I’ve known it’s what we

call a crack house” to another house. They saw the Defendant go to the back of the other

house and motion for Ms. Hicks to follow him. At the back of the house, Ms. Hicks and the

Defendant smoked crack cocaine, and the Defendant gave Ms. Hicks .2 grams of cocaine.

The audio recording of these actions and the testimony of the State witnesses

constitute sufficient evidence that the Defendant committed the act for which he was

convicted and that he possessed the requisite knowing mental state at the time of his offense.

Accordingly, we conclude that the evidence was sufficient to support his conviction.

II. Inconsistent Verdicts

The Defendant contends that the jury verdicts are inconsistent because he was

“indicted and tried on two (2) counts that involve the same set of circumstances, and

occurred at the same time.” The Defendant also contends that the charges should merge by

operation of law and that the conviction of the lesser included offense of simple possession

should operate as an acquittal of the delivery of less than .5 grams of a Schedule II controlled

substance. The State responds that “consistency is unnecessary on the individual

indictments” and that the court “may not upsetseemingly inconsistent verdicts by speculating

as to the jury’s reasoning so long as the evidence establishes the [D]efendant’s guilt.”

We agree with the State. “An acquittal on one count cannot be considered res judicata

to another count even though both counts stem from the same criminal transaction. This

[c]ourt will not upset a seemingly inconsistent verdict by speculating as to the jury’s

reasoning if we are satisfied that the evidence establishes guilt of the offense upon which the

conviction was returned.” Wiggins v. State, 498 S.W.2d 92, 94 (Tenn. 1973). Having

concluded that the evidence was sufficient for his conviction of delivery of a Schedule II

controlled substance, we decline to discuss this issue further.

III. Merger

The Defendant contends that his convictions for simple possession and delivery of a

controlled substance should have merged. The State responds that the trial court did merge

these convictions.

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We agree with the State and recognize that the trial court did merge these convictions.

The Defendant was acquitted of sale of a Schedule II controlled substance and convicted of

the lesser-included offense of simple possession or casual exchange of a Schedule II

controlled substance and delivery of a Schedule II controlled substance. Following the jury

verdict, the trial court stated, “I’m just going to consider this all to have merged into the

delivery count.” Moreover, the judgments entered in the Defendant’s case reflect that he was

acquitted of the sale charge and convicted of the delivery charge and sentenced to fifteen

years for the delivery charge and that charge alone. Accordingly, we conclude that the trial

court merged these convictions and that the merger was appropriate given the fact that there

was only one transaction. However, the judgments do not reflect that the Defendant was

convicted of the lesser-included offense of casual exchange or that the convictions were

merged. Upon remand, we direct the trial court to modify the judgment to accurately reflect

the verdict regarding the acquittal of the sale charge, conviction of the lesser-included

offense of casual exchange, and merger of the casual exchange and delivery verdicts.

CONCLUSION

Because the motion for new trial was untimely in this case, we conclude that the

Defendant’s issues on appeal regarding the sleeping jurors and his alleged intoxication have

been waived. Following our review of the Defendant’s remaining issues, we affirm the

Defendant’s convictions. However, because the judgments do not reflect the jury’s verdict

regarding the sale charge or the trial court’s merger of the Defendant’s convictions, we

remand the case to the trial court for the entry of corrected judgments, as previously detailed

in this opinion.

_______________________________

D. KELLY THOMAS, JR., JUDGE

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