         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                Assigned on Briefs May 4, 2004

                 STATE OF TENNESSEE v. MALCOLM BENSON

                         Appeal from the Circuit Court for Lake County
                          No. 02-CR-8247 R. Lee Moore, Jr., Judge



                    No. W2003-02211-CCA-R3-CD - Filed August 12, 2004


Following a jury trial on April 23, 2003, the defendant was convicted of one count of sale of a
controlled substance more than .5 grams. He was sentenced to ten years in the Tennessee
Department of Correction and fined $3000. He appeals this conviction. The defendant argues two
issues: (1) whether the evidence was sufficient to support the defendant’s conviction; and (2)
whether the trial court erred by not allowing the defendant’s uncle to testify at trial as to the identity
of an individual in the videotape of the drug sale. We affirm the decision of the trial court.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , and JAMES
CURWOOD WITT , JR., JJ., joined.

Ramsdale O’DeNeal, Jr., Jackson, Tennessee, for the appellant, Malcolm Benson.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
Phillip Bivens, District Attorney General, for the appellant, State of Tennessee.


                                               OPINION

                                          Factual Background

        There were several witnesses at the defendant’s trial. The first witness was Special Agent
Brian Eaton. Agent Eaton is a forensic scientist for the Tennessee Bureau of Investigation (“TBI”).
He testified that he received a cocaine base sample which weighed .68 grams in his laboratory. He
also stated that there were seven rocks of cocaine in the sample.

        The next witness for the State was Agent Robert Harrison who works for the West Tennessee
Judicial Violent Crime and Drug Task Force (“West Tennessee Drug Task Force”). In the Fall of
2001, Chief Bryan Avery of the Tiptonville Police Department, contacted Agent Harrison for
assistance with an undercover drug operation. On November 30, 2001, Agent Harrison met with
Agent Eric Holmes at a prearranged location. Agent Harrison gave Agent Holmes $120 to make a
drug purchase and equipped Agent Holmes’ vehicle with both audio and video surveillance
equipment. Agent Holmes left the meeting sight around 2:45 p.m. During the purchase, at
approximately 3:00 p.m., Agent Harrison was in a plain, unmarked vehicle with Chief Avery. Agent
Harrison and Chief Avery could not see, but could hear, the transaction as it occurred. After the
completion of the sale, Agent Holmes broadcast a description of the buyer as a black male, thin
build, blue pants, blue jean coat, light mustache, cap and hood, tall, 5'9 or 5'10, and approximately
150 pounds. Having heard the description, Agent Harrison and Chief Avery circled through the area
and saw an individual matching the description. The individual was later identified as the defendant.
Chief Avery was familiar with the defendant and was able to identify him. Agent Harrison and Chief
Avery then got a picture of the defendant from the Department of Safety database, and Agent Holmes
identified the defendant as the buyer. Agent Harrison did state that the defendant’s hair at the time
of the trial was different from that of the picture obtained from the Department of Safety database.
Agent Holmes gave Agent Harrison the drugs at 3:10 p.m. Agent Harrison field tested the substance,
and it tested positive for cocaine. The drugs arrived at the TBI lab on December 5 for more
extensive testing.

        The next witness was Agent Holmes. Agent Holmes testified that he worked for the West
Tennessee Drug Task Force as a special agent. He was involved with some undercover work in Lake
County. On the day in question, Agent Holmes was approached by a black male on the passenger’s
side of the vehicle. The black male then came around to the driver’s side of the vehicle. Agent
Holmes asked the black male for seven rocks, meaning crack cocaine. The black male said yes he
would deal with Agent Holmes. Agent Holmes then asked for seven rocks for $120. The two men
completed the deal. Agent Holmes never left the vehicle. Agent Holmes testified that the vehicle
was equipped with surveillance equipment. There were four concealed cameras, two shooting the
passenger’s side and two shooting the driver’s side. He also stated that the individual who sold him
the drugs was right up in his window. He then identified the defendant as the individual who sold
him the drugs and stated that the defendant’s hair had changed since the buy. Agent Holmes also
stated he left the buy and went to meet the surveillance team, Agent Harrison and Chief Avery and
turned over the substance he bought. Agent Holmes said he then viewed a photograph of the
defendant and identified him as the individual from whom he purchased the cocaine.

         The State’s next witness was Chief Bryan Avery of the Tiptonville Police. Chief Avery
testified that he contacted the West Tennessee Judicial District Task Force and asked for help with
an operation. On November 30, 2001, Chief Avery was taking notes as part of a back-up team. He
heard a transmission over the radio of what appeared to be a drug sale. After the sale was completed
Chief Avery and Agent Harrison drove around to see if they could find an individual matching the
description given by Agent Holmes. Chief Avery and Agent Harrison drove around less than one
minute after the buy and at about ten miles per hour. They saw two people that Chief Avery was
able to identify, Malcolm Benson and Edward Frison. At the time of the defendant’s trial, Chief



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Avery had known Malcolm Benson for seven or eight years. Mr. Benson and Mr. Frison were not
dressed similarly on the day in question.

        The defendant then presented his case. As his first witness he recalled Agent Harrison.
Agent Harrison testified that he had seen the videotape of the sale which was admitted into evidence.
He stated that the tape had been in the possession of the State since the time of the drug purchase.
Agent Harrison stated that the videotape contains two views because drug dealers had figured out
that there were cameras pointed at the driver’s side of the car and knew to go to the passenger’s side.

         The next witness was the defendant himself. The defendant testified that he was twenty-two
and that he lived with his mother and his sister. He stated that he had a prior conviction for
possession of cocaine less than .5 grams. The defendant stated he had seen the videotape ten to
fifteen times and the individual in the video was not him. The defendant described himself as 6'1",
weighing 170 pounds and was about the same height and weight on the day in question. He also
testified that he had never owned a blue jean jacket or the type of hat described by Agent Holmes.
The defendant stated that he worked the third shift at Poly One and came home after work , sleeping
until 4:00 or 5:00 o’clock.

       The defendant’s mother also testified at the trial. She stated that she remembered November
30, 2001 because of a party being thrown at her church. She testified that she remembered the
defendant at home asleep at 3:00 p.m. that day.

       The jury viewed the videotape of the sale as part of the evidence in addition to the foregoing
testimony.

                                            ANALYSIS
                                    Sufficiency of the Evidence

        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.


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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.

       The jury found the defendant guilty of sale of a controlled substance more than .5 grams.
Tennessee Code Annotated section 39-17-417 states that an individual is guilty of this crime when
he knowingly sells a controlled substance and that substance weighs more than .5 grams. We
conclude that the evidence as presented through the testimony of the State’s witnesses and the
videotape of the drug sale is more than adequate to support the defendant’s conviction. There is no
question that a rational trier of fact could find the defendant guilty of sale of a controlled substance
more than .5 grams.

        Therefore, this issue is without merit.

                                           Lay Testimony

         The defendant’s second issue is that the trial court erred when it did not allow the defendant
to call his uncle to the stand as a lay opinion witness on the question of the identity of the defendant.
The defendant wanted to put his uncle on the stand to testify that the person selling the drugs in the
video was not, in the uncle’s opinion, the defendant. At a bench conference, the trial court stated
that the witness could not testify because the identity of the individual in the videotape is a fact
question for the jury.

         Evidence must be relevant and probative to an issue at trial in order to be admissible. State
v. McCary, 922 S.W.2d 511, 515 (Tenn. 1996); see also Tenn. R. Evid. 402. Evidence is relevant
if it has “any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.” Tenn. R. Evid.
401. However, relevant evidence may be excluded at trial if the probative value of that evidence “is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury . . .” Tenn. R. Evid. 403. The determination of relevancy is left to the discretion of the trial
court, and this Court will not overturn a trial court's determination in this regard in the absence of
an abuse of discretion. State v. Williamson, 919 S.W.2d 69, 78-79 (Tenn. Crim. App. 1995); State
v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995).

       Rule 701 of the Tennessee Rules of Evidence provides that a lay witness’s testimony “in the
form of opinions or inferences is limited to those opinions or inferences which are (1) rationally
based on the perception of the witness and (2) helpful to a clear understanding of the witness’s
testimony or the determination of a fact in issue.

        In Sanders v. United States, 809 A.2d 584 (D.C. Ct. App. 2002), the District of Columbia
Court of Appeals made an extensive analysis of the introduction of lay witness testimony when
identifying a defendant from a surveillance photograph or video in a series of Federal cases.
Sanders, 809 A.2d at 594-97. At the conclusion of its analysis, the court held that before allowing
such testimony, “the trial court at least should be reasonably satisfied that because of the either


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obscured or altered appearance of the defendant, the lay witness is more likely to accurately identify
the defendant than is the factfinder.” Id. at 596. We find Sanders to be persuasive in this regard.

        In State v. Powers, the Director of Surveillance at Sam’s Town Casino, where the victim had
last been seen alive, testified concerning the videotape and repeatedly referred to an individual in the
video as “Mr. Powers” even though he had no prior knowledge of Mr. Powers. 101 S.W.3d 383,
413-14.

       Citing this Court’s opinion, the Tennessee Supreme Court ruled that the trial court erred in
allowing the director’s testimony because he had no more familiarity with the defendant than the jury
did. However, the court found this error to be harmless because “the jurors saw the videotape and
had the Defendant before them; each juror therefore had the opportunity to determine for her or
himself whether the person in the video was the Defendant.” 101 S.W.3d at 414.

       In the case at hand, there was no testimony that the defendant’s appearance had greatly
changed. Agent Holmes did testify that his hair was different, but that was the only change. The
videotape, which has been reviewed by this Court, has a clear view of the defendant. Under the
Sanders guidelines, the defendant’s appearance must have been altered, or the view of the defendant
must have been obscured. Neither of those is the case here. It is in the trial court’s discretion to
admit evidence. We do not find an abuse of discretion here in the trial court’s disallowance of the
defendant’s uncle as a witness.

          In addition, even if disallowing the defendant’s uncle’s testimony had been error, it was
harmless error. Chief Avery testified that he had known the defendant for seven or eight years.
Therefore, it is clear that Chief Avery would be able to identify the defendant. The defendant also
presented evidence through the testimony of his mother that he was asleep at the time of the drug
sale. And finally, as in Powers, the jury was presented with both the defendant and the videotape
at trial and had the opportunity to determine whether the individual in the videotape was actually the
defendant. Presented with all this evidence, the jury found that the individual was indeed the
defendant. Therefore, this issue is without merit.

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



                                                        ___________________________________
                                                        JERRY L. SMITH, JUDGE




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