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# FILED
March 9,1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE DECEMBER 1998 SESSION

STATE OF TENN ESSEE , * No. 01C01-9802-CR-00062 APPELLEE, * Davidson County VS. * Honorable Tho mas H. Shriver, Jud ge TONY ARMSTRONG , * (Sale of Cocaine) APPELLANT. * For Appellant : For Appellee : Dwight E. Scott John Knox Walkup 4024 Colorado Avenue Attorney General and Repor ter Nashville, TN 37209 425 Fifth Avenue North Nashville, TN 37243-0493 Daryl J. Brand Senior Counsel 425 Fifth Avenue North Nashville, TN 37243-0493 Erik W. Daab Legal Assistant 425 Fifth Avenue North Nashville, TN 37243-0493 Jon Seaborg Assistant District A

ttorney General Washington Square Building 222 2 nd Avenue, North Nashville, TN 37201 OPINION FILED: ____________________
AFFIRMED NORMA MCGEE OGLE, JUD GE OPINION2 The appellant, Tony Armstrong, appeals as of right his conviction by a jury in the Criminal Court for Dav idson County of the sale of less than .5 grams of cocaine, a Class C felony. The tri al court sentenced the appellant as a standard, Range I offender to four years incarcer ation and suspended all but one y ear of the appellant’s sentence. The sole issue on appeal is the suf ficiency of the evidence adduced at trial to sustain the jury’s verdic t. Following a thor

ough review of the record, we affirm the judgment of the trial court.
I. Factual Background On November 2, 1995, a Dav idson County grand jur y indicted the appellant for selling less than .5 grams of cocaine on August 29, 1995. The trial court conduct ed the ap pellant ’s trial on August 26 , 27, and 28, 1997 . The Sta te initia lly presented the testimony of Officer Ani ta Prather, an undercover police officer and a member of the Crime Suppression Unit of the Metrop olitan Nashville Police Department. Officer Prather testified that, as an undercover police officer, she “purchase[d] drugs from str eet level dealers.” S he explained that, general ly, her supervisor would select a location in Nashv ille where the Polic

e Department had received numerous reports of drug-related activity. The undercover officers would then attempt to purchase drugs, including marijuana and c ocaine, using “buy money” that had previously been photocopied in order to record the serial numbe rs on the bills. Th e undercover of ficers would rema in in contact with th eir unit through radio transmitters. In th is manner, they could rel ate the details of any ongoing transaction, including a description of the dealer and a description of the type and amount of drugs.
With respect to the appellant’s offense, Officer Prather testified that, on the evening of August 29, 1995, s he was working undercover in North N ashville with the3 Crime Suppression Unit. She and another officer, Ernest Cecil, were drivi ng an unmarked police car and w earing civilian clothing. They observ ed the appellant standing on a street corner, and stopped their vehicle in order to ask the appellant if he “knew where [they

] could get some ready.” Officer Prather explained at trial that “ready” is a slang

term meaning crack cocai ne. The appellant asked Officer Prather to park her car. He then w alked across the street and spoke briefly with an other man. Following thi s conversation, the appell ant asked Officer Prather to dri ve her car around the corner and par k. She then observed the man to whom the appellant had been speaking produce a small bottle, at which time the appe llant and his companion approached two other gentlemen. Officer Prather testified that an exchange occurred between two of the appellant’s companions, one o f whom sold Officer Prather a rock of crack cocaine.
Following the sale, Officer Cecil communicated to other membe rs of the Unit that the purchase had been completed an d described the participants. At least six officers arrived at the loc ation of the drug transaction and arrested the appellant and his companions. Officer Prather did not observe the arrest of the appellant. Rather, she and Officer Cecil began to complete the necessary paper work, including marking any evidenc

e recovered during th e transaction and as a result of the arrests. Using a kit provided by the Police Department, the officers tested the rock of crack cocaine in order t o confirm that it contained cocai ne and then sent the evidence to the Tennessee Bureau of Inv estigation Crime Lab. At trial, Officer Prather positively

identified the appellant as the i ndividual who orches trated the drug transaction.
The State also presented the testimony of Pa tty Choatie, a forensic scientist at the Te nnessee Bureau o f Investi gation Cri me Lab, s pecializi ng in drug ch emistry.4 She testified that the item purchas ed by Officer Prather wei ghed 0.05 grams. She also confirmed that the substance w as, in fact, cocaine.

The State then called Officer Chri s Taylor to the witnes s stand. He testified that, at the time of the instant offense, he w as a member of the Crime Suppressio n Unit of the Metropolitan Nas hville Police Depar tment. Officer Taylor testified that, on August 29, 1995, pursuant to Officer Prather and Officer Cecil’s description, he and Officer Dupree arrested the appe llant. He searched the appel lant’s pockets and found the buy money in the rig ht front pocket of the appellant’s pant s. Officer Taylor also positively identified the appellant at trial.
During cross-ex

amination by the appellant’s attorney and during the presentation of the appellant’s c ase, Officer Taylor conceded that he had testified at a preliminary hearing on September 5, 1995, in the case of one of the participants in the drug transaction. However, he could not recall testifying at the hearing. He further conceded that he had stated at the preliminary hearing that he did not recover the buy money from Officer Prather’s drug pu rchase. Again, howev er, he could not recall his testimony. Officer Taylor ex plained that, at the time of the appellant’s arrest, he w as participating in appr oximately seventy

arrests each month and, as a member of the Crime Suppress ion Unit, had probably par ticipated in as many as four hundred arrests prior to August 29, 1995. A dditionally, he stated that, at the time of the September 5, 1995, prel iminary hearing, he w as testifying in as many as ten or twelv

e cases each day that he attended court. Since that time, he had participated in approx imately two thousand cas es. Officer Taylor submitted that his testimony at trial , that he had himself recovered the buy money, was bas ed upon his review of Officer Pr ather’s report, whic

h was prepared immediately following the appellant’s arrest. He remarked, “[W]ithout those reports, [the ar rests] would all r

un5 together really bad.”
Finally, the State cal led Officer Lee Dupree. Officer Dupr ee was also a member of the Crime Suppression Uni t at the time of the appellant’s offense. On the evening in question, he assisted Officer Taylor in arresting the appellant. He confirmed that Officer Taylor sear ched the appellant and that Officer Tay lor recovered the buy money from the right front pocket of the app ellant’s pants.
The appellant testified on his ow n behalf. He stated that on the ev ening of his arrest he was w

alking to a friend’s house.Officer Prather approached him and asked whether or not he knew of a location where she could purchase drugs. He responded that she might be able to buy drugs “down the street.” While Officer Prather drove further down the street, the appellant remained on the street corner, as he was, “you know, jus t hanging out.” Acc ordingly, he observe d an exchange between Officer Prather and sev eral men with whom he w as casually acquaint

ed. Soon thereafter, according to the appellant, the police arrived and arrested these acquaintances. Because he w as curious, the appellant w alked down the street toward the scene of the arres ts. At that time, several officers arrested him. The appellant stated that he did not att empt to flee from the police. He conce ded, however, that he gave the police a false name and false informa tion about his employment. He explained that he gave the police fals e information because he was “afraid and scared.” He was particularly concerned that news of his arrest might reach his employer s. The appellant denied sellin g cocaine to Officer Prather and denied that the police found the buy money in his possession.
II. Analy

sis The appellant contends that the evidence presen ted during his trial is6 insufficient to prove his g uilt beyond a reasonable doubt . In Tennessee, appellate courts accord considerabl e weight to the ver dict of a jury in a cri minal trial. In essence, a jury conviction removes the presumption of the defen dant’s innocence and replaces it with on e of guilt, so that the appellant carries the burden of demonstrating to this cour t why the evidence will not support the j ury’s findings. State v. Tuggle , 639 S.W.2d 913, 91 4 (Tenn. 1982). The appellant must estab lish that no “reasonable trier of fact” could have found the essential elements of the offense of sale of cocaine beyond a reasonabl e doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Ten n. R. App. P. 13(e).
Accordingly, on appeal , the State is entitled to the strongest legitimate view of the evidence and all reasonabl e inferences which may be drawn therefrom. State v. Williams , 657 S.W.2d 405, 410 (Tenn. 1983). In other word s, questions concerning the credibil ity of witnesses and the weight and value to

be given the evidence, as well as

all factual issues raise d by the evidence, are r esolved by the trier of fact, and not the appellate c ourts. State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990).
In the instant case, the appella nt was convicted pur suant to Tenn. Code Ann. § 39-17-417(a)(3) (1995) of selling cocaine we ighing less that .5 g rams. The statute provides that the State must prove beyond a reasonable doubt the following essential elements: (1) the defendant sold cocaine; and (2) the defendant acted knowingly. Tenn. Co

de Ann. § 39-17-417(a)(3). The appellant correctly p oints out that it is undisputed that he nei ther directly deliv

ered the cocaine to Officer Prather nor did he receive the buy money directly from the O fficer. However, it is not necessary that a defendant personally engage in the actual transf er of drugs in exchange for money in ord er to be found guilty of the sal e of cocaine. See State v.1. The record does not include the jury instructions. However, in responding to a question by the jurors during the course of their deliberations, the judge re-read portions of the jur

y instructions, including an instruction on the theory of criminal responsi

bilityfor the conduct of another. We further note that, although the record does not reflect whether or not the State pro

ceeded solely upon the theory of criminal responsibility for the conduct of another, there was no danger in this case of a “patchwork verdict” regarding the facts of the offense.” Contrast Statev. Prude , No. 02C01-9711-CR-00425, 1998 WL 467096, at * 4-5 (Tenn. Crim. App. at Jackson, August 12, 1998). At trial, the jury was presented with only one set of facts up on which it could base a finding of guilt.
7 Henning , No. 02C01-9404-CC-00079, 1994 WL 583311, at *2 (Tenn. Crim. App. at Jackson, October 26, 1994). In any event, the record reflects that the jury in this case was instructed on the theory of criminal res ponsibility for the conduc t of another. 1 Tenn. Code Ann. §39-11-401 (1995) provides that “ [a] person is criminally responsi ble as a party to an offense [ and may be charged with the commission of the offense] if the offense is committed by... the conduct of another for which the person is criminally responsib le...” Tenn. Code Ann. § 39-11-402 (2) (1995) further provides that a person is criminall y responsible for the conduc t of another if, “[a]cting w

ith intent to promote or assi st the commission of the offense, or to benefit in the proceeds or results of the of fense, the person solicits, directs, aids, or attempts to aid another perso n to commit the offense.”

In State v. Greenwood , No. 01C01-9109-CR-00280, 1992 WL 50962, at *2 (Tenn. Crim. App. At Nashv ille, March 19, 1992) thi s court approved the appli cation of the theory of criminal res ponsibility to the offense of sell ing cocaine for the purpose of charging and conv icting parties to the dr

ug transaction other than th e actual source of the cocaine. See also State v. Porter , No. 02C01-9501-CC-00029, 1997 WL 399335 , at *2 (Tenn. Crim. App. At Jackson, July 16, 1997) perm. To appeal granted , (Tenn. 1998). In this case, the evidence at trial, v iewed in the light most favorable to the State, establ ished that the appellant direc ted Officer Prather to a location where she coul d purchase cocaine; the appella nt consulted with sev eral acquaintances, one of whom delivered the cocaine to Off icer Prather and directly2 The Appellant argue s t hat, at most, he was guil ty of criminal responsi bility for facilitation of a felony purs uant to Tenn. Code Ann. §39-11-403 (1995 ). However, this statue applies if the State is unable to establish the intent re quired for criminal re sp onsibili ty. Id . at (a). Again, the State adduced sufficient evidence at trial to est ablish the requisite intent.
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received the buy money ; and the appellant acquired possession of the buy money soon after the transaction. The State ma y prove a criminal offense by direct evidence, circumstantial evidence, or a combination of the two. State v. Tharpe , 726 S.W. 2d 896,899-900 (Tenn. 1987). Moreover, ci rcumstantial evidence may establish the mental state req uired for the commission of the offense. State v. Rhodes , No. 02C01-9406-CC-00124, 1995 WL 425046, at *5 (Tenn. Crim. App. At Jackson, July 19, 1995). We conclude that the evidence in this case is sufficient to support the appellant’s conv iction. 2
Nevertheless, the appell ant argues in his brief that , “[b]ecause the testifying police officers provided c ontradictory, suspect, and unreliable testimony, the evidence was insufficient for a rational trier of fact to fin d beyond a reasonable doubt that the Defendant was guilt y of sale of cocaine.”
The appellant particularly focuses upon the contradictory testimony of Officer Taylor. As noted earlier, at the September 5, 1995, prelimi nary hearing, Officer Taylor testified that he had not personally recover ed the buy money from Officer Prather’s August 29, 1995, d rug transaction. In cont rast, at trial he testifie d that he personally searched the appellant and recovered the buy money. This court has previously held that

“[i]t is a rule of law

in Tennessee that contradictor y statements by a witness in connection with the same fact cancel each other.” State v. Ma tthews , 888 S.W. 2d 446,449-450 (Tenn. Crim. App. 1993). How ever, we further noted th at this rule of law is onl

y applicable when the inconsistency is unex plained and when neither version of the w itness’ testimony is corroborated by other ev idence. Id. at3 Contrar y to the appella nt’s as

sertio n in his

brief, the record is devoid of evidence that the officers in this case “ had a private agenda to conv ict the Defendant.”
9 450. Duri ng the tria l of the a ppellan t, Offi cer Taylor explained that his e xtensive caseload could result in faulty recollection of events absent recourse to th e police report. He also testified a t trial that he had revi ewed Officer Prather’s re port prior to the trial in order to r

efresh his memory. Additional ly, his testimony at trial was corroborated by the testi mony of Officer Dupree. 3
“A jury verdic

t approved by the tria l judge accredits the t estimony of the witnesses for the State and resolves all conflicts in favor of the State’s the ory.” State v. Williams , 657 S.W. 2d 405, 410 (Tenn. 1983) The jury in thi s case chose to believe Officer Taylor’ s and Officer Dupree’s testimony that the buy money was discovered in the appellant’s pocket following the drug transaction. The appe llant’s possession of the buy money immediately following the sale, combined with his role in arrangi ng the dru g transact ion, are s uffici ent fact s upon whic h the jury c ould have based its verdict. We conclude that the evidence in the instant ca se supports the judgment of the trial court. For the reasons stated abov e, we AFFIRM the judg ment of the trial court.

Norma McGee Ogle, Judge
CONCUR:
John H.Peay, Jud ge
Joseph M. Tipto n, Judge