### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Bri efs August 21, 2001 STAT E OF T ENNES SEE v. PAUL J . WARD Direct Appeal from the Criminal Court for Cart er County No. S14355B Robert E. Cupp, Judge

No. E2001-00175-CCA-R3-CD January 18, 2002
A jury found defe

ndan t g ui lt y of two counts of selling a Schedule I controlled substance (heroin), class B f

elonies. Defend ant appe als his co nvicti ons clai ming insufficient evidence exists to support his convictions, and the admission of the tape-recorded s ales tra nsa ctions was error in that it contained evidence of other bad acts or crimes in violations of Tennessee Rule of Evidence 404(b). We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in whi ch J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined. Clifton Corker, Johnson City, Tennessee, for the appe llant, Paul J. Ward.
Paul G. Summers, Attorney Gene ral and Reporter; Jennifer L. B ledsoe, As si stant Attorney Genera l; Joe C. Crumley, Jr., District Attorney General; and Denn is Dwayne Brooks, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION
On Jan uary 14, 2 000, after a jury trial, defendant, Paul J. Ward, was found guilty on two counts of selling

a Schedule I c ontrolled

substanc e (hero in), cla ss B felonies. He was sente

nce d as a Range I

standard o ffen der to eleven years on each count to run concurre ntly. Defenda

nt contends that the trial court erred in admitting into evidence tape r eco rdings made at the time of the sa le by t he un dercover agent, which c ontained statements by def endant of other drug sales or purchases B

in short, th at th e admission o f the tape recordings was in violation of Tenne ssee Ruleof Evidence 40 4 (b). Defendant also contends that the evidence was insufficient to support his convictions.-2- Facts
Defendant was indicted on three counts for sale of a controlled substanc e and one c oun t of conspira cy to sell a controlled substance. At the conclusion of a jury trial, defendant was foundguilty of Counts One and F our for sale of a controlled substance on August 25, 1998, and August 11, 1998, respectively . The jury ac q uitted defe ndant of C ount Three for the alleged sale of a contro lled substa

nce on June

16, 1998. C ount Two, c onspiracy to se ll a controlled substance, was dismis sed by the trial court sua sponte . We revie w the evid

ence in chronolog ical order of the sales and not in order of the counts cha rged.
The evidence ad duced at trial revealed that on June 16, 1998, as alleged in Count Three, AgentsBrian F

raley and Patri ck Johnso n used underco ver polic e informa nt William Ca

rden to purchas e illegal drugs from defendant. T he transac tion was to be recorded using a wire, whic h was placed on the undercover informant’s person. At t rial, Ag ent Fra

ley testifie d that the

agents could not identify defe

nda nt visually because the agents were parked too fa r away from the vehicle in which the alleged transaction took place. Additionally , Agent Fr aley testified that they could not identify the v o ice of defendant, as the transmitting device used by the underc over informant did not work properly. As suc h, Carden gave the only

evidence against defenda nt on Count Three. Defendant was found not guilty on Count Three.
As alleged in Count Four, at approximately 3:00 p.m. on August 11, 1 998, Ag ents Jesus Pen a and Patrick Johnson of the First District Drug Task Force a gain met with Car den. Carde n told the officers that he was going to defen dant =

s house to purchase two bags of heroin. Su bs eq ue nt ly, the officers searched, brief ed, and placed a wire on Carden, wh o was given $100 .00 to make the purchase. The age nts followed Carden to defendant = s house on Swimming Pool Road in Ha

mpton, Ten

nesse e. Carde n was driven by his wife , Donna. The agents parked on a nearby

street to monitor the transaction. Carden arriv ed at defendant = s residence at approxima

tely 3:18 p.m. Becau se of the ir location, the agents did not see Carden go into the residence. Carden te stified th at he ga ve defe ndant the money an d that defendant gave him the drugs. During this time, Agents Johnson and Pena monitored the transac ti on by way of the ra dio transmitter.
The agents followed Carden back to th e meeting place a nd retrie ved the dr

ugs from him, which were later determined to be .3 gr ams. Agent Pena identified t he voices of Carden and the defendant on the tap e of the t

ransac tion. Ag ent Pena t estified that he wa s to o f ar aw ay to see Carden go into the residence or make the pur chase. In his testimony , the agent admitted that he could not say for sur

e where the drugs came from, whether fr om the defendant, the informant, or even from the informant =

s wife. Defendant was found guilty on this charge.
As alleged in Count One , at appr oximately 3:01 p.m. on August 25, 1998, Agents Pena andJoh ns on again met with Carden. There is conflicting testimony reg arding whether or not and how thoroughly Car

den was searched. Age

nt Johnson also testified that Carden = s wife was not searched and that he was not sure if Carde n had drugs on him prior to entering the residenc e.-3-

Carden was briefed and given $250

. 00 to make another purchase. A body wire was placed on hi m. Acc ordin g to Agen t Jo hnson , Card en was o rigina lly going t o purchase drugs from someone named Ritchie, however R itchie wa s not ther e when they

arrive d. The agents followedCarden to

th e reside

nce. Car den was a

gain dr iven by his wife, Donna. T

he age nts parked and monitored the tra nsaction . Howeve r, they could not s ee the r

esidenc e from the

ir location

. Carden testified that there was another person present a t the residence to whom he gavethe money, and de

fen dant came out of the bathroom and gave him the drugs, w hich were approxima

tely .06 gra ms. In his testimo ny, Agent Joh nson identified the voices of defendant and Carden on the tape. According to Agent Johnson, defendant has a dist inctive voice. Agent Johnson said he was familiar

with defe

ndant’s v oice bec ause he h ad spoke n with him be

fore. Th e age nt te stifie d that the defendant “made conversation about using a sack and also abo ut a boy an d girl coming up and getting a sack from him.”
The re wa s also a third voice on the tape identified as Mr. Andes. Accor ding to Agent Johns on, Ca rden told Johnson that Carden gave the drug money to a third party, and the third party to whom he gave the mon eywas Mr. Andes. However, in other testimony , Carden had pr ev io us ly d en ie d k no wi ng th e i de nt it y of th e t hi rd pa rt y. The record reflects that the undercove r informant in this case, William Car den , had previous ly

been in trouble wi th the law. He was convicted for driving unde r the influence, fo rg er y, and driving ona revoke d license. At the time of trial in the instant case, he was on probation for the latter two offenses. Furthermore , defen se cou nsel elicited some testimony from Carden concerning Carden’s prior acts of perjury be for e other courts in Tennessee. Defendant was found guilty

on this charge. Analysis
1. Sufficiency of the Evidence
In t his appea

l, defendant ques tions the sufficiency of the evidence t

o justify the ju ry’ s finding of guilt beyond a reasona bl e doubt. Defendant submits that the trial court should have grante d defendant =

s Rule 29 motion for acquittal at the close of defendant = s proof and the State =

s proof. The rule

emp owers the tri al judge to direc t a judgm

ent of ac quittal wh

en the ev idence i s insufficient

to warrant a conviction either at the time the state rests or at the conclusion of all the evidence. State v. B all , 973 S.W.2d 288 , 2 92 (Tenn. Crim. App. 1998). The standard by which a trial cou rt rules u pon a mo tion fo r judgment of acquittal is essentially the same standard appliedon appeal in determining the sufficiency of the evi dence after

a conviction. Ball , 973 S.W.2d at 29 2; see Tenn. R. Crim. P. 29(a).
When the motion i s made, the trial c ourt must f avor the state with

the strongest le gitimate view of the evidence, including all reasonable inferences, and discard a ny c ounte rvailing evidence. A judgme

nt of acq uit tal is a question of law for the trial court. State v. A dams , 916 S.W.2d 471 (Ten

n. Crim. Ap

p. 1995). In re solving t he questi on, the tr

ial c ourt must

simply-4-

determine whether the evidence i s lega lly sufficient to support a conviction. State v. H all , 656 S.W.2d 60 (Tenn. Crim. App. 1983).
The court does not re-weigh or ree valuate the evidence. State v. Ca bbage , 5 71 S.W.2d 832, 836 (Tenn. 1978). If the tria l judge determines t hat the evidence is insuffi cient to su

pport a jury's guilty verdict beyond a re asonable doubt, a judgment of acqu ittal is g ranted. The state may not retry

the defendant but has the right of appea l. Tenn. R. Crim. P. 29(c).
When a defendant cha

llenge s the conv

icting e vidence on appea

l, the State

is entitle d to the strongest legitimate view of the evidence an d all reasonable inferences that might be drawn from the evidence. Cabba ge , 571 S. W. 2d 832, 835 (Tenn. 1978). The credibility of the witnesse s, the weig

ht given their te stimony, and the reconciliation of conflicts in the proof are matters entru sted exclu sively to the trier of fa ct. By rge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1 978) ( citi ng Wit hers v . State , 523 S.W.2d 364 (Tenn. Crim. App. 1975)). A court does not substitute its inferences for those drawn by the trier of fact fro m the evidence. Liakas v. State , 199 Tenn . 298, 286 S .W.2d 856, 8 59 (1956) ; Farmer v. State , 574 S.W.2d 49, 51 (Tenn. Crim. App. 1978). In a crimina l ac tion, a conviction may be set a side only when the re viewing court finds tha t the "evidence

is insuffi cient to support th e finding s by

the trier of fact of guilt bey ond a rea sonable d

oubt." T enn. R. Ap

p. P. 13(e ); see also Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2 789, 61 L. Ed. 2d 560 (1979) (concluding that courts reviewing sufficiency of evidenc e must dete

rmine "whe ther, af

ter viewing the e

vidence in the lig

ht most fav orable t

o the prosecution, any

rational trier of fact could have found the es sential e

lements of

the crime b eyo nd a reaso nable dou

bt"). F inally , the burd

en is on the

defenda nt to show th at the evidence i s insufficient. State v. Tu ggle , 639 S.W.2d 913, 914 (Tenn. 1982).
Defendant

in this cas e was co nvicted o f the sale of her oin. Tennessee Code Annotated section 3 9-17-417 providesas follow s: (a) I t is an off ense for a defendant to kno wingly :

. . . (3) Sell a controlled substance. We conclude the evidence in this case is sufficient to support defenda nt = s conviction.
When viewed in the light mos t favorable to the State, a rational jury could find that the undercover

police informant purchased heroin from defe ndant for $150.00 on August 11, 1998 , and$250.00 on Aug ust25, 1998. The testimony of the under cover informant was supported by the testimony of Age

nts Pena and Johnson. Both ag ents testi fied that they recognized defendant’s voice on the tape s p lay ed to the j ury . A witnes s need no t be absol utely certain to make a voice i dentific ation. “[I ]t is suffic ient if the

witness th

inks he ca

n identify the voic e an d express his opinion.” Stroup v. Sta te , 552 S.W.2d 418, 420 (Tenn. Crim. App. 1977), cert

. denied , (Tenn. 1977) (cit ing Auerbach v. United States , 136 F.2d 882 (6th Cir. 1943) ); see State v. Radley , No. 01C01-9311-CC-00382, 1994 WL 377212, at *4 (Tenn. C ri m. App., f iled July 14, 1994, at N ashville) . Perhap s most impor tantly , the audi otapes of

these dr ug tran sa ction s identify defendant at the scene of the crime, w hich, we not e, was defendant’s own residence

. There is suffi cient evidence to support the jury ’s finding of guilt. Accordingly , we affirm the trial court’s denial of defendant’s motion for acquittal.-5-

2. Admission of Audio Tapes
In this appeal, defendant asserts that the trial courterred by

allowing audiotapes of the drug transactions to be

played to the j ury

because the tape s a re ev

iden ce of othe r crimes. We disagr ee wit h defen dant a nd uph old t he tri al cou rt’s r ulin g. Tenness ee Rule o f Evidenc e 404(b) states: Evidence of other

crimes, w

rongs, or acts isnot admi ssi ble to prove the character of a p er so n i n o rd er to sh ow ac ti on in co nfor mi ty w it h t he ch ar ac te r t ra it . It ma y, however, be admissible for other purposes. Th e co nditions which must be satisfied before allowing such evidence are: (1) The court upon request must hold a hearing outside the jur y's pr esence; (2) The cour

t must dete

rmine tha

t a mater ial iss ue exists o ther than conduct conforming with a character trait and must upon reque st stateon the record the material issue, the ruling, and the reasons for a dmitting the evidence; and (3) The court must exclude the evide nce if it s probative value is outweighed by the danger of unfair prejudice

. Th is court has previously stated that "[o]nly in an exceptional case will another crime , wrong, or bad act be relevant to an issue other than the a ccused's character

. Such excep tional cases include identity, intent, motive, oppor tunity, or rebuttal of

mistake or a ccident." State v. Luellen , 86 7 S.W.2d 736, 740 (Tenn. Crim. App. 1992). The admissibility of evidence is a matter within the

sound disc

reti o n of the trial court. State v. Blevins , 968 S.W.2d 888, 892 (Tenn

. Crim. App. 1997). Finally, " [w]hen a trial court substantially complies with the proceduralrequirements of [ Tenn. R. Ev id. 404(b)], its determination will not be overturned absent an abu se of discret ion." State v. D uBose , 953 S.W.2d 649, 652 (Tenn. 1997). Though both audiotapes are difficult to understand, o n th e audiotape of the August 25 transaction, there w as s ome discu ssion of a “sack”and two people ge tting a s ack fro m defend ant. On the audi otap e of the August 11 transaction, there was a conversation, in which defendant took part, abo ut a “green pill” for the price of $120.00. The informant testified that defendant me ntioned a green pill, which was morphine. Defe ndant also mentioned calling the inf ormant i f someone made a trip.
We conclude that the trial co urt was corr ect when it ruled that the audiotape was admissible. The trial court admitted the evidence becaus e it was r elevant to provide

a comple te story of the crime. Although we disagree with the reasoning provi ded by the trial cour t = s ruli ng, we conclude the evidence was admissible for othe r reasons. In this case, Agent Johnson testified that he was able to identify defenda nt = s voice because he had sp oken wit

h defe ndant on a previous occasion. As such, the identity of defendant was established by hea

ring defendant’s voice as he ha d a discussion about a g reen morph ine pill. The audiotap es also establish that defendant had the opportunity to sell the illegal drugs. “Other acts are admitted t o prove the ac cused had access to the necessar y equipment.” Ne

il P. Cohen et-6-

al., Tennessee Law of Evidence § 4.04[14] at 95 (4th Ed . 2000); see State v. Goad , 7 07 S.W.2 d 846, 850 (Ten

n. 1986). Last

ly, they establish that ther e was no m

istake in t

h e transfer o f the illegal drugs. The undercover info rmant tes tified tha

t shortly before the sale he spoke

with defendant on the pho ne and tha t defend ant said he had some heroin for the undercover informan t. Becau se the ta

pes esta blish def endant’ s i d entity

at the time

of the sa le, oppor tunity to make the sale, and absence of mistake in the transfer of the heroin to the undercover ag ent, we conclude the audiotapes were properly admitted. As such, we affirm the trial court ’s rul ing o n this issue. CONCLUSION For the foregoing r

easons, we affirm the judgment of the trial cour t.

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### JOH N EVER ETT WIL LI AMS, JUD GE