        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 15, 2009

               STATE OF TENNESSEE v. LARRY D. GUTHRIE

            Direct Appeal from the Criminal Court for Davidson County
                    No. 2008-B-1947   Mark J. Fishburn, Judge




              No. M2009-00787-CCA-R3-CD - Filed September 16, 2010


The appellant, Larry D. Guthrie, was convicted by a Davidson County Criminal Court Jury
of delivery of less than .5 grams of cocaine, and he received a sentence of six years and one
month in the Tennessee Department of Correction. On appeal, the appellant challenges the
sufficiency of the evidence supporting his conviction and the trial court’s denial of his
request for two special jury instructions. Upon review, we affirm the judgment of the trial
court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE , J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Jeffrey A. DeVasher (on appeal), Laura C. Dykes and Chelsea Nichols (at trial), Nashville,
Tennessee, for the appellant, Larry D. Guthrie.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; Shannon Poindexter and
Andrea Green, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

      The evidence adduced at trial revealed that Kevin C. Lambert was a recovering crack
cocaine addict who worked as a confidential informant for the Metropolitan Police
Department. On September 4, 2007, police wired Lambert’s car for audio and video
recording and gave him twenty dollars to purchase drugs. Lambert drove to Second Avenue
in Nashville, where he saw the appellant standing on the street.

       The appellant approached Lambert’s vehicle on the front passenger side. Lambert
asked the appellant for “a twenty,” meaning that he wanted to purchase twenty dollars’ worth
of crack cocaine. The appellant told Lambert to pull his car up a “bit” then went to speak
with a man who was sitting on a wall nearby. Lambert saw the man give something to the
appellant, and the appellant returned to Lambert’s car. The appellant handed Lambert crack
cocaine, and Lambert gave the appellant the money. Lambert explained that drug dealers
often use addicts to take the drugs from the dealer to the buyer, and, in return, the addict is
given money or drugs.

      Sergeant Charles Rutsky, Detective Ronald Cumrow, and Detective Chad Holman,
monitored Lambert’s purchase of crack cocaine from the appellant. The officers testified that
they were unable to positively identify the man from whom the appellant obtained the crack
cocaine. Tennessee Bureau of Investigation Agent Brett Trotter analyzed the substance
Lambert obtained from the appellant and determined that it was .1 grams of cocaine base, a
schedule II drug.

        Based upon the foregoing proof, the jury found the appellant guilty of the delivery of
less than .5 grams of crack cocaine. On appeal, the appellant challenges the sufficiency of
the evidence and the trial court’s refusal to give the jury special instructions regarding casual
exchange and statutory construction.

                                         II. Analysis

                               A. Sufficiency of the Evidence

       On appeal, a jury conviction removes the presumption of the appellant’s innocence
and replaces it with one of guilt, so that the appellant carries the burden of demonstrating to
this court why the evidence will not support the jury’s findings. See State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982). The appellant must establish that no reasonable trier of fact
could have found the essential elements of the offense beyond a reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tenn. R. App. P. 13(e).

       Accordingly, on appeal, the State is entitled to the strongest legitimate view of the
evidence and all reasonable inferences which may be drawn therefrom. See State v.
Williams, 657 S.W.2d 405, 410 (Tenn. 1983). In other words, questions concerning the
credibility of witnesses and the weight and value to be given the evidence, as well as all



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factual issues raised by the evidence, are resolved by the trier of fact, and not the appellate
courts. See State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990).

       The appellant argues that no reasonable jury could have found him guilty of delivery
of crack cocaine beyond a reasonable doubt. He acknowledges that the evidence is sufficient
to convict him of the lesser-included offense of casual exchange or facilitation of delivery
of crack cocaine.1

        Our criminal code provides, “It is an offense for a defendant to knowingly . . . deliver
a controlled substance,” such as crack cocaine. Tenn. Code Ann. § 39-17-417(a)(2) and
(c)(2)(A). In the instant case, Lambert, who was working as a confidential informant, told
the appellant he wanted to purchase twenty dollars’ worth of crack cocaine. The appellant
spoke with another man who handed something to the appellant, the appellant returned to
Lambert with a rock of crack cocaine, and the appellant took Lambert’s money. Testing
revealed that the substance Lambert obtained from the appellant was .1 grams of crack
cocaine. This proof sufficiently establishes delivery of a controlled substance. We note that
casual exchange generally “contemplates a spontaneous passing of a small amount of drugs,
for instance, at a party. Money may or may not be involved.” State v. Copeland, 983 S.W.2d
703, 708 (Tenn. Crim. App. 1998). However, the instant facts “simply do not show a
‘spontaneous’ exchange.” See State v. John Dillihunt, No. E2004-02691-CCA-R3-CD, 2005
WL 2045196, at *4 (Tenn. Crim. App. at Knoxville, Aug. 25, 2005). The jury was instructed
on the lesser included offenses and acting in its purview, reviewed the evidence and found
the appellant guilty of the delivery of crack cocaine. This issue is without merit.

                                           B. Jury Instructions

       The appellant contends that the trial court erred in failing to grant his request for a
special jury instruction regarding casual exchange. The appellant also complains that the trial
court erred in failing to grant a special jury instruction regarding “legislative intent and
statutory construction,” which “would have instructed the jury, in effect, that the legislature
deemed that delivery of a controlled substance was [an] offense of equal culpability as sale


        1
           Tennessee Code Annotated section 39-17-418(a) provides that “[i]t is an offense for a person to
knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly
from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional
practice.”

         Tennessee Code Annotated section 39-11-403(a) provides that “[a] person is criminally responsible
for the facilitation of a felony, if, knowing that another intends to commit a specific felony, but without the
intent required for criminal responsibility under § 39-11-402(2), the person knowingly furnishes substantial
assistance in the commission of the felony.”

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or manufacture of the substance, and that any doubt about whether the [appellant’s] actions
constituted a ‘delivery’ under the statute be resolved in his favor.”

        It is well-established that a defendant has a “constitutional right to a correct and
complete charge of the law.” State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990). Accordingly,
trial courts “should give a requested instruction if it is supported by the evidence, embodies
a party’s theory, and is a correct statement of the law.” State v. Phipps, 883 S.W.2d 138, 150
n. 20 (Tenn. Crim. App. 1994). Moreover, this court has previously stated that “[w]e must
review the entire [jury] charge and only invalidate it if, when read as a whole, it fails to fairly
submit the legal issues or misleads the jury as to the applicable law.” State v. Forbes, 918
S.W.2d 431, 447 (Tenn. Crim. App. 1995). A charge resulting in prejudicial error is one that
fails to fairly submit the legal issues to the jury or misleads the jury about the applicable law.
State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Trial courts need not give requested
instructions if the substance of the instructions is covered in the general charge. State v.
Zirkle, 910 S.W.2d 874, 892 (Tenn. Crim. App. 1995). Generally, when a jury charge is
complete without the inclusion of the special instruction, a trial court does not err in refusing
to give the special instruction. See State v. Story, 608 S.W.2d 599, 603 (Tenn. Crim. App.
1980).

      The appellant requested the following special instruction on casual exchange, which
was derived from State v. Helton, 507 S.W.2d 117 (Tenn. 1974):

               You may consider whether the transaction was a casual
               exchange and was possessed not for the purpose of sale. If the
               [appellant] did casually exchange a controlled substance, then
               that transaction would constitute a misdemeanor. Money may
               or may not be involved. You are instructed that “exchange”
               means to part with, give, or transfer a substance in consideration
               of something received as an equivalent. “Casual” means
               without design.

       The trial court refused to give the requested instruction and instead gave the following
jury instruction, which largely comports with Tennessee Pattern Jury Instruction 31.05:

                      It may be inferred from circumstances indicating a casual
               exchange among individuals of a small amount of controlled
               substances that the controlled substances so exchanged were
               possessed not with the purpose of selling or otherwise
               dispensing them.



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                        You are instructed that “exchange” means to part with,
                 give, or transfer a substance in consideration of something
                 received as an equivalent.

                          “Casual” means without design.

                       The term casual exchange may include a transaction in
                 which money is involved.[ 2 ]

       The appellant argues that “the trial court erred in not granting his special jury
instruction request that would have clarified that a casual exchange may or may not involve
money.”3 The appellant contends that “[t]he instruction as given does not convey that casual
exchange could also include a transaction wherein a defendant takes temporary possession
of drugs from a drug seller, then physically transfers those drugs to a buyer in exchange for
a smaller amount of drugs for himself.”

       The instruction as given correctly instructed the jury regarding the offense of casual
exchange and is very similar to the requested instruction. The given instruction was a
complete and accurate statement of the law. Therefore, the trial court did not err in denying
the appellant’s requested instruction. This issue is without merit.

       The appellant also complains that the trial court erred in declining his request for the
following special jury instruction:

                 When statutes address the same subject and have a common
                 purpose, but omit something in one part but not another, then the
                 legislature is presumed to have acted purposely. Any ambiguity
                 or confusion of the statute should favor the [appellant].

The appellant maintains that his actions “did not rise to the level of delivery” and that the
requested instruction would have effectively instructed the jury “that the legislature deemed
that delivery of a controlled substance was [an] offense of equal culpability as sale or



        2
          Tennessee Pattern Jury Instruction 31.01 contains the phrase, “The term ‘casual exchange’ does
not exclude a transaction in which money is involved.” At the appellant’s request, the trial court rephrased
to remove the “double negative” in the pattern instruction.
        3
           On appeal, the appellant concedes that the trial court did not err in refusing to advise the jury that
casual exchange is a misdemeanor. See Tenn. Code Ann. § 39-17-418(c) (providing that casual exchange
is a Class A misdemeanor).

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manufacture of the substance, and that any doubt about whether the [appellant’s] actions
constituted a ‘delivery’ under the statute be resolved in his favor.”

        “The proper function of a special instruction is to supply an omission or correct a
mistake made in the general charge, to present a material question not treated in the general
charge, or to limit, extend, eliminate, or more accurately define a proposition already
submitted to the jury.” State v. Cozart, 54 S.W.3d 242, 245 (Tenn. 2001). “Denial of a
special or additional instruction is error only if the trial court’s jury charge does not fully and
fairly state the applicable law.” Id. We have examined the jury charge as a whole, and we
conclude that the jury was properly instructed on the charged offense of delivery of a
controlled substance and the lesser-included offenses of casual exchange and facilitation of
delivery of cocaine. This issue is merely a rehashing of the appellant’s argument that his
actions did not merit a conviction for delivery of cocaine nor the harsh punishment
accompanying such a conviction. The trial court did not err in denying the requested
instructions. This issue is without merit.

                                        III. Conclusion

       Finding no error, we affirm the judgment of the trial court.




                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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