        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 was sufficient 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. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, 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-CCA-
R3-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 dollars1 that was given to her by Officer Seals and asked the Defendant for “a
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.




       1
           The money was obtained through the “Drug Task Force Confidential Funds.”
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        As they 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 upset seemingly 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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