        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 October 26, 2010 Session

                 STATE OF TENNESSEE v. DANIEL H. JONES

                    Appeal from the Criminal Court for Sullivan County
                     No. S53,124 Robert H. Montgomery, Jr., Judge



                     No. E2010-00016-CCA-R3-CD - Filed June 6, 2011


The Sullivan County Grand Jury charged by presentment Appellant, Daniel H. Jones, with
possession of .5 gram of cocaine with intent to sell. This charge was the result of the
execution of a search warrant during which officers arrested five individuals and found
containers holding rocks of crack cocaine and other drug paraphernalia. After a jury trial
held on August 26, 28, and 29, 2008, Appellant was convicted as charged. The trial court
sentenced Appellant to eleven years as a Range I, standard offender. On appeal, Appellant
argues that the trial court erred in allowing testimony of a prior bad act of Appellant in
contravention of Rule 404(b) of the Tennessee Rules of Evidence and that the evidence was
insufficient to support his conviction. After a thorough review of the record, we conclude
that the trial court did not abuse its discretion in admitting the evidence in question and that
the evidence was sufficient to support Appellant’s conviction. Therefore, we affirm the
judgment of the trial court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
N ORMA M CG EE O GLE, JJ., joined.

Gregory W. Francisco, Kingsport, Tennessee, for the appellant, Daniel H. Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Greeley Wells, District Attorney General; and Kent Chitwood, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                   Factual Background

       On October 19, 2005, Officer Sean Chambers observed a residence at 805 East
Sullivan Street in Kingsport, Tennessee. From this observation, Chambers believed he had
sufficient probable cause to obtain a search warrant. He successfully obtained a search
warrant for the residence in question.

        On October 20, 2005, Ms. Lillian Horton saw Appellant on the porch of 805 East
Sullivan Street. She approached Appellant, who told her he was waiting on Robert Hale to
arrive. Ms. Horton saw people coming and going from the residence during the time she was
there. She also saw people sit down and smoke crack while they were there. Ms. Horton saw
Appellant and three or four individuals go to the kitchen in the rear of the residence. When
they returned, some of them stayed and smoked crack and the others left the residence. Ms.
Horton only saw Appellant go to another room with other people. She never saw Mr. Harris
or Ms. Aikens do that.

        On the date in question, Ms. Aikens was living at 805 East Sullivan Street with Mr.
Harris. She had been living with Mr. Harris for a couple of months in October 2005. During
the months she was living there, she saw Appellant a few times a week. Mr. Harris stated
that at that time, Appellant would come to his residence on a daily basis.

       On October 20, 2005, Officers Steve Hammonds and Kevin Hite, with the Kingsport
Police Department SWAT team, assisted with the execution of the search warrant obtained
by Officer Chambers for the residence at 805 East Sullivan Street. Upon their initial
approach, Officer Hammonds encountered Jon Harris, the resident, on the front porch.
Officer Hammonds saw Lillian Horton seated on a couch just inside the front door. When
Officer Hammonds entered the residence, he found Appellant standing in the doorway of a
bedroom located immediately to the right of the front door.

        Officer Hammonds ordered Appellant to get onto the ground. Appellant refused, and
Officer Hammonds pulled Appellant onto the ground. Officer Hammonds saw Amanda
Aiken in the bedroom. Officer Hammonds remained in the living room watching Appellant
and the two females. The rest of the SWAT team was searching the residence. Officer Hite
proceeded to the bathroom. He found Robert Hale standing over the toilet. Officer Hite
immediately placed Mr. Hite on the ground and looked into the toilet. In the toilet, he found
a plastic baggie containing several “off-colored, off-white colored rocks” that appeared to
be crack cocaine. Officer Hammonds heard Officer Hite yell that he had found narcotics in
the toilet bowl.

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        The officers eventually handcuffed everyone in the house and brought them all into
the living room. Once the occupants of the residence had been secured, Officer Chambers
entered the house. He first Mirandized the individuals in the living room. He attempted to
discover who owned the crack that had been found in the toilet. Afterwards, the officers
began to search the residence, as well as each individual. When the officers searched Mr.
Harris, they found crack cocaine and $46 in cash. When they searched Ms. Aiken, they
found a crack pipe.

        The officers began with a search of the living room. In the living room, the officers
found a razor blade on top of a CD case. Razor blades are often used to cut or chop cocaine.
In addition to the razor blade, the officers found a rolled cigarette, a pair of hemostats and
rolling papers, a peach-colored pill, and several handwritten notes. The notes were messages
stating that someone had gone out to run an errand and would return shortly or the person
could be found at a certain location. In the bathroom, Officer Chambers obtained the plastic
baggie that contained crack cocaine. Officers also found a black plastic key case containing
crack cocaine, $309 in cash, two cell phones, and two sets of keys behind a laundry basket
in the bathroom. The keys did not belong to Appellant’s vehicle.

        The officers also searched the bedroom. The officers found a piece of crack cocaine
on top of a Tennessee driver’s handbook, a bag of drug paraphernalia, two bags of
hypodermic needles, a lighter, crack pipe filters, another razor blade, and a pushrod, which
is used to push the filters into and out of crack pipes. Officer Chambers also found a Tic Tac
box containing over twenty-five rocks of crack cocaine under the mattress of the bed.
Officer Chambers also found a small bottle containing one rock of crack cocaine under the
mattress and a tin in the pocket of a shirt in a closet containing three or four rocks of crack
cocaine.

        Officer Chambers testified at trial that the residence in question did not have
electricity. The only light was in the living room from a single lamp which was connected
to an extension cord that had been run from another building. In addition, the officers did
not locate any food in the residence.

        After completing the search of the residence, the individuals found in the house were
transported to the police station. Officer Chambers interviewed Appellant. Appellant gave
the following statement, “Jon Harris is my cousin. I visit him daily at his apartment on East
Sullivan Street. I do not smoke crack cocaine nor do I sell crack cocaine. That is my
statement.”




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       At trial, Officer Chambers testified that the number of the rocks of crack cocaine
contained in the Tic Tac box was more than a typical user would have in their possession.


       Ms. Aikens testified at trial about the day in question. She stated that she was on the
bed smoking crack when the officers arrived. She had purchased the crack from Appellant
who gave her the cocaine from a Tic Tac box he kept in his pants pocket. When the officers
arrived, Appellant placed the Tic Tac box under the mattress, and Ms. Aikens threw her
cocaine across the room. Ms. Aikens stated that the cocaine found in the baggie in the
bathroom belonged to Mr. Hale. The cocaine, driver’s handbook, razor blade in the
bedroom, the bag with drug paraphernalia, and the bottle containing crack cocaine belonged
to her. The Tic Tac box containing a large amount of cocaine belonged to Appellant. Ms.
Aikens also stated that about two weeks before October 20, 2005, she saw Appellant with
a Tic Tac box with cocaine in it. She saw him sell the cocaine in the Tic Tac box in
exchange for money.

       Mr. Harris stated that he had bought the rock of crack cocaine from Appellant. He
said that Appellant kept his crack cocaine in a Tic Tac box and that Appellant did this
frequently. Mr. Harris also testified that he had never seen Appellant actually use crack
cocaine.

                                         ANALYSIS

       On appeal, Appellant argues that “the Trial Court erred in allowing testimony of the
prior bad act of the Defendant having previously possessed cocaine in a Tic Tac box into
evidence in this Trial for the purpose of corroborating otherwise uncorroborated co-
defendant/accomplice testimony.” Furthermore, Appellant argues that there was insufficient
evidence to support his conviction without the wrongfully admitted evidence.

                                       Prior Bad Acts

        As we begin our analysis, we note well-established precedent providing “that trial
courts have broad discretion in determining the admissibility of evidence, and their rulings
will not be reversed absent an abuse of that discretion.” State v. McLeod, 937 S.W.2d 867,
871 (Tenn. 1996). The general rule is that evidence of a defendant’s prior conduct is
inadmissible, especially when previous crimes or acts are of the same character as the
charged offense, because such evidence is irrelevant and “invites the finder of fact to infer
guilt from propensity.” State v. Hallock, 875 S.W.2d 285, 290 (Tenn. Crim. App. 1993).
Tennessee Rule of Evidence 404(b) permits the admission of evidence of prior conduct if the
evidence of other acts is relevant to a litigated issue such as identity, intent, or rebuttal of

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accident or mistake, and the probative value outweighs the danger of unfair prejudice. Tenn.
R. Evid. 404(b) Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn.
1985); State v. Hooten, 735 S.W.2d 823, 824 (Tenn. Crim. App. 1987). However,
“[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity with the character trait.” Tenn. R. Evid. 404(b).
Before admitting evidence under Rule 404(b), the rule provides that (1) upon request, the
court must hold a hearing outside the jury’s presence; (2) the court must determine that the
evidence is probative on a material issue and must, if requested, state on the record the
material issue and the reasons for admitting or excluding the evidence; (3) the court must find
proof of the other crime, wrong, or act to be clear and convincing; and (4) the court must
exclude the evidence if the danger of unfair prejudice outweighs its probative value. Tenn.
R. Evid. 404(b).


       The rationale underlying Rule 404(b)’s exclusion of evidence of a defendant’s prior
bad acts is that admission of such evidence carries with it the inherent risk of the jury
convicting the defendant of a crime based upon his bad character or propensity to commit a
crime, rather than the conviction resting upon the strength of the evidence. State v. Rickman,
876 S.W.2d 824, 828 (Tenn. 1994). The risk is greater when the defendant’s prior bad acts
are similar to the crime for which the defendant is on trial. Id.; see also State v. McCary, 922
S.W.2d 511, 514 (Tenn. 1996).

        At a hearing held prior to trial, Appellant made an oral motion in limine to have a
portion of the testimony of Officer Sean Chambers excluded from trial. The testimony in
question concerned Appellant’s arrest two months before the date in question. During that
arrest, Officer Chambers found Appellant in possession of a Tic Tac box containing several
rocks of crack cocaine. After hearing argument from both sides, the trial court ruled that
Officer Chambers’s testimony regarding Appellant’s prior possession of a Tic Tac box
containing cocaine was not admissible because the probative value was outweighed by the
danger of unfair prejudice.

        During the trial, the trial court discussed the inclusion of the names of the co-
defendants, Mr. Harris, Ms. Horton, Ms. Aiken, and Mr. Hale, in the jury instruction in
connection with the definition of accomplice. The trial court stated that the determination
as to who would be considered an accomplice would be up to the jury. The State brought up
that Ms. Horton, Ms. Aikens, and Mr. Harris were witnesses at trial for the State, and if they
were determined to be accomplices additional corroborating evidence would be necessary
to corroborate their testimony. The State argued that Officer Chambers’s testimony
regarding Appellant’s prior possession of the Tic Tac box should be admitted to corroborate
the testimony of the potential accomplices. The trial court held a jury-out hearing on the

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issue. At the conclusion of the hearing, the trial court determined that the probative value
outweighed the danger of unfair prejudice. The trial court’s findings are as follows:


       [B]oth Mr. Harris, Ms. Aikens as well as Ms. Horton, because they were all
       three — they testified they were all in the house when this occurred; because
       the drugs were not found on anybody who they belong to is [obviously] a
       relevant issue in this case. We also, though, have a situation, too, where we
       have, and under the accomplice theory then accomplice testimony cannot be
       corroborated by another accomplice. And assuming the jury found all three of
       those people to be accomplices, then there would be — because that’s the only
       people — only individuals’ testimony that it belongs to the defendant. That
       would be essentially the end of the State’s case. Now, I previously ruled with
       regard to the issue of their seeing him with a Tic-Tac box in the period of time
       two weeks before this occurred because I found that the relevance of that and
       the probative value outweighed the danger of unfair prejudice and what we
       also have, based upon the testimony that I previously heard in the suppression
       hearing was, is that two weeks — within two months prior to this event the
       defendant was found [with a Tic Tac box containing rocks of crack cocaine.]

               ....

       And because of the Tic-Tac box I find that that is relevant corroborative
       evidence and so the issue that I have to decide is whether the probative value
       is outweighed by the danger of unfair prejudice. And of course I’ve already
       let in the information with regard to the Tic-Tac box was within two weeks
       and give a cautionary instruction to the jury about that and because of the fact
       that we’re dealing with an issue of accomplices and accomplice’s [sic]
       testimony in this — the Tic-Tac box on the defendant. Now what was the
       weight on that one? Do you recall, General?

               [Appellant’s counsel]: The weight of the — exactly, .5 grams according
       to the lab result.

               The Court: Does it say the number of rocks, do you recall?

               [Assistant District Attorney General]: Judge, it doesn’t, it just says .5
       gram.

               ....

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              [Assistant District Attorney]: . . . Judge, the officer’s note says several
       rocks. He did not count them out.

              The Court: Well, I find that that amount and the fact that it was several,
       I find that the probative value is not outweighed by the danger of unfair
       prejudice for the purpose of the use — solely for the corroboration of the
       testimony of people that may end up determined to be accomplices.


        Officer Chambers was recalled to the witness stand. He testified that he saw
Appellant on August 29, 2005. On that date, Officer Chambers searched Appellant and
found a Tic Tac box containing what appeared to be crack cocaine. Officer Chambers said
that the Tic Tac boxes he found on August 29th and during the search in question “both had
a bottom layer of Kleenex that was packed inside the box with tan colored rocks laying on
top of that.” Officer Chambers stated that the Tic Tac box found on August 29 th contained
more than one rock of crack cocaine.

       The record demonstrates that the trial court met the requirements under Rule 404(b)
before determining that Officer Chambers’s testimony was admissible. Our determination
on appeal is whether the trial court abused its discretion in admitting the testimony. As stated
above, in the jury-out hearing, the trial court determined that Officer Chambers’s testimony
regarding Appellant’s prior possession of a Tic Tac box containing rocks of crack cocaine
was admissible in part because it corroborated the testimony of the other witnesses at trial.


        In State v. Caughron, 855 S.W.2d 526 (Tenn. 1993), our supreme court addressed a
similar situation. In Caughron, the defendant was convicted of first degree premeditated
murder. Caughron, 855 S.W.2d at 530. The accomplice testified that the defendant beat the
victim with a pool stick, tied up the victim with sheer material the defendant kept in his car,
and after attempting to have intercourse with the victim, slapped the victim on her buttocks.
Id. at 531. Another witness, Jimmy Huskey, testified that the defendant owned a pool stick
similar to the one described by the accomplice, that the defendant kept a light-colored, sheer
table cloth in his car, and that the defendant had told him that slapping women on the
buttocks “really turned him on.” Id. at 532. On appeal, the defendant argued that the
evidence about the pool stick, the sheer material, and his propensity to slap women on the
buttocks should not have been allowed into evidence based upon Rule 404(b) of the
Tennessee Rules of Evidence. Our supreme court held that the evidence was admissible “to
connect Defendant to this crime and corroborate the accomplice’s testimony.” Id. at 538.




                                              -7-
        The same can be said about Officer Chambers’s testimony regarding the Tic Tac box.
His testimony about Appellant’s prior possession of the Tic Tac box is necessary to answer
the question who owned the Tic Tac box found under the mattress, i.e. to connect Appellant
to the crime, and to corroborate the testimony of the other witnesses who could be considered
accomplices. We conclude that the evidence was admitted for purposes other than to prove
character, which is prohibited by the rule in question. Therefore, the trial court did not abuse
its discretion in allowing the testimony of Officer Chambers regarding Appellant’s prior
possession of a Tic Tac box configured in an identical manner to that found under the
mattress on the date of the offense which is the subject of this appeal.

                                Sufficiency of the Evidence

       Appellant also argues that there was insufficient evidence to support his conviction
because the evidence of his prior possession of the Tic Tac box should have been excluded.
As stated above, we have determined that the trial court did not abuse its discretion in
allowing the testimony in question. Appellant argues that the testimony in question did not
sufficiently corroborate the testimony of the other three witnesses who could have been
considered accomplices.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to
demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such



                                              -8-
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990).

      It is true that convictions may not be based solely upon the uncorroborated testimony
of accomplices. See State v. Robinson, 971 S.W.2d 30, 42 (Tenn. Crim. App. 1997).
However, Tennessee law requires only a modicum of evidence in order to sufficiently
corroborate such testimony. See State v. Copeland, 677 S.W.2d 471, 475 (Tenn. Crim. App.
1984). More specifically, precedent provides that:


       The rule of corroboration as applied and used in this State is that there must be
       some evidence independent of the testimony of the accomplice. The
       corroborating evidence must connect, or tend to connect the defendant with the
       commission of the crime charged; and, furthermore, the tendency of the
       corroborative evidence to connect the defendant must be independent of any
       testimony of the accomplice. The corroborative evidence must[,] of its own
       force, independently of the accomplice’s testimony, tend to connect the
       defendant with the commission of the crime.


State v. Griffis, 964 S.W.2d 577, 588–89 (Tenn. Crim. App. 1997) (quoting Sherrill v. State,
321 S.W.2d 811, 815 (Tenn. 1959)). In addition, our courts have stated that:


       The evidence corroborating the testimony of an accomplice may consist of
       direct evidence, circumstantial evidence, or a combination of direct and
       circumstantial evidence. The quantum of evidence necessary to corroborate
       an accomplice’s testimony is not required to be sufficient enough to support
       the accused’s conviction independent of the accomplice’s testimony nor is it
       required to extend to every portion of the accomplice’s testimony. To the
       contrary, only slight circumstances are required to corroborate an accomplice’s
       testimony. The corroborating evidence is sufficient if it connects the accused
       with the crime in question.


Id. at 589 (footnotes omitted). Furthermore, we note that the question of whether an
accomplice’s testimony has been sufficiently corroborated is for the jury to determine. See
id. at 588; State v. Maddox, 957 S.W.2d 547, 554 (Tenn. Crim. App. 1997).




                                              -9-
        Officer Chambers testified that he found a Tic Tac box with Kleenex layered in the
bottom cushioning several rocks of crack cocaine. This occurred within two months of the
search of the East Sullivan residence during which a Tic Tac box with Kleenex layered in the
bottom and containing several rock of crack cocaine was found under a mattress. Ms. Aikens
testified that she was in the bedroom smoking crack that had been given to her by Appellant
from a Tic Tac box he kept in his pants pocket. She stated that she had seen Appellant with
a Tic Tac box containing cocaine about two weeks before the search. On the earlier
occasion, she saw Appellant sell crack cocaine he kept in the Tic Tac box for money. Mr.
Harris also testified that Appellant kept his crack cocaine in a Tic Tac box.

        We conclude that Officer Chambers’s testimony is sufficient to corroborate this
testimony. The earlier possession of the Tic Tac box connects Appellant with the Tic Tac
box found in the residence during the search. See Griffis, 964 S.W.2d at 588–89. Clearly,
the jury concluded that Officer Chambers’s testimony was sufficient to corroborate the other
testimony. Therefore, we find that the evidence is sufficient to support Appellant’s
conviction.


                                     CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.


                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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