          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                                     January 6, 2015 Session

                    STATE OF TENNESSEE v. JAMES PENNOCK

                         Appeal from the Circuit Court for Dyer County
                         No. 12-CR-328    R. Lee Moore, Jr., Judge



                  No. W2013-02526-CCA-R3-CD - Filed March 19, 2015


The Defendant-Appellant, James Pennock, was convicted by a Dyer County jury of three
counts of sale of a Schedule II controlled substance. On appeal, the Defendant argues
that (1) the evidence is insufficient to establish the Defendant‟s identity as the person
who committed the offenses; (2) the trial court erred in instructing the jury regarding
eyewitness identification testimony; and (3) the trial court erred in allowing the co-
defendant, Nora Gibson, to testify without proper notice provided to the Defendant.1
Upon our review, we affirm the judgments of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

CAMILLE R. MCMULLEN, delivered the opinion of the court, in which ALAN E. GLENN
and ROGER A. PAGE, JJ., joined.

William T. Edwards, Dyersburg, Tennessee, for the Defendant-Appellant, James
Pennock.

Robert E. Cooper, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Phillip Bivens, District Attorney General; and Karen Burns, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                              OPINION

        State’s Proof. In December 2011, Sergeant Michael Leggett of the Dyersburg
Police Department narcotics unit used a confidential informant, Paul “Sonny” Barch, to
facilitate three undercover drug buys from the Defendant. Sergeant Leggett testified that


      1
          We have renumbered the Defendant‟s issues for clarity.
he had worked with Barch as a confidential informant in approximately 170 cases, and
Barch had proven reliable.

       On December 13, 2011, Barch called the Defendant and asked if he had any
methodone to sell. Barch had known the Defendant for eight to ten years and had sold
drugs to him before. Sergeant Leggett monitored and recorded the phone call, which was
introduced into evidence and played for the jury. The Defendant informed Barch that he
had methadone to sell, and the two arranged to meet at a local Dollar General Store.
Before the arranged meeting time, Investigator Chris Gorman of the Dyer County
Sheriff‟s Office searched Barch and his vehicle to ensure that he did not have any drugs,
money, or weapons in his possession. The officers provided Barch with recorded buy
money to purchase the drugs and equipped him with audio and video recording devices to
monitor and record the sale. The officers also followed Barch and videotaped the
transaction from their vehicle a short distance away.2 At the Dollar General Store, Barch
was met by the Defendant‟s mother, Nora Gibson, rather than the Defendant. She
delivered 15 methadone pills, and he gave her $80. After the transaction, Barch met the
officers at their arranged meeting location and gave Sergeant Leggett the pills. Sergeant
Leggett sealed the pills in an evidence bag, and Investigator Gorman searched Barch‟s
person and vehicle again and did not find any other drugs.

       On December 15 and December 22, 2011, Barch called the Defendant again to
make two more undercover drug buys. On both occasions, Sergeant Leggett monitored
and recorded the phone calls made to the Defendant. The Defendant and Barch arranged
to meet at the Defendant‟s house for both sales. Prior to the meetings, Dyersburg Police
Officer Chris Clement searched Barch and his vehicle and equipped him with audio and
video recording devices. Sergeant Legget and Officer Clement monitored the sales from
about a block away from the Defendant‟s home. On December 15, the Defendant sold
Barch 15 methadone pills for $75, and on December 22, the Defendant sold Barch 15
methdadone pills for $120. After the transactions, Barch met the officers and gave
Sergeant Leggett the methadone pills he purchased from the Defendant. Sergeant
Leggett sealed the pills in an evidence bag, and Officer Clement searched Barch and his
vehicle and did not find any other drugs or money.

       Sergeant Leggett acknowledged that Barch had a prior criminal record and a
history of drug abuse. He testified that Barch did not have any pending criminal charges
when he worked as a confidential informant, and Barch was paid by the police
department for his undercover work. Likewise, Barch testified that he had been
convicted of selling drugs in the past and had used drugs for many years. He stated that
he had been “clean” for over a year, and he decided to work as a confidential informant
        2
         The phone call recordings and audio and video recordings of the drug sales were introduced into
evidence and played for the jury, but the recordings are not included in the record on appeal.
                                                  -2-
because he “wanted to make changes in [himself].” He testified that he did not have any
pending charges in December 2011 and all of his prior drug charges occurred before he
began working as a confidential informant.

       Special Agent Brock Sain, a forensic scientist for the Tennessee Bureau of
Investigation, was qualified as an expert in drug identification. He analyzed the pills
purchased from the Defendant in this case and determined the pills to be methadone, a
Schedule II drug.

      Nora Gibson, the Defendant‟s mother and the co-defendant in this case, testified
on behalf of the State over the objection of the Defendant. In December 2011, the
Defendant lived with her in her home. She testified that on December 13, 2011, the
Defendant asked her to deliver methadone pills to Sonny Barch, and she did so. Barch
gave her $80 for the pills, and she kept part of the money and gave the remainder to the
Defendant. She acknowledged that in exchange for her testimony, the State agreed to
dismiss the charges against her.

       Defense’s Proof. The Defendant testified that the methadone pills sold to Barch
in December 2011 belonged to his mother, Nora Gibson, and that he acted only as a
“middle man.” He testified that his mother had a prescription for methadone and asked
him to find buyers for some of the pills when they needed money. He recalled that Barch
called him in December 2011 and asked him, “Do you have anything,” which he
understood as referring to methadone. He testified that he “never was involved” in the
transaction that took place on December 13, 2011, and did not receive any money from
that sale. He acknowledged that he sold methadone pills to Barch on December 15 and
December 22 but claimed that Barch did not hand him any money for the pills on those
dates.

        On cross-examination, the Defendant agreed that he was “selling [his] mama‟s
methadone” pills but claimed that she wanted him to sell them because “she needed the
money.” He acknowledged that in the audio recording of the phone call on December 13,
2011, he told Barch “[w]e‟ll meet you up [at the Dollar General Store].” He also
acknowledged that in the other audio recordings of the phone calls on December 15 and
December 22, he and Barch discussed the purchase price for the methadone. He testified
that he increased the price from $75 to $120 in the third transaction because he found out
“what the going price was” for methadone pills. He stated, “I was at five [dollars per
pill], but . . . . the price really was seven or eight [dollars per pill],” so he raised the price
“[j]ust like everyone else was doing.” When asked whether he sold the pills to Barch on
December 15 and December 22, the Defendant responded, “Yeah.” He claimed,
however, that he gave the money from the sales to his mother, and he did not receive any
money from the sales.
                                               -3-
       Following deliberation, the jury convicted the Defendant of three counts of sale of
a Schedule II substance as charged in the indictment. A sentencing hearing was held on
September 19, 2013, after which the trial court sentenced the defendant to an effective
sentence of 12 years‟ confinement with a 45% release eligibility.

                                             ANALYSIS

        On appeal, the Defendant argues that (1) the evidence is insufficient to establish
the Defendant‟s identity as the person who committed the offenses; (2) the trial court
erred in instructing the jury regarding eyewitness identification testimony; and (3) the
trial court erred in allowing co-defendant Nora Gibson to testify without proper notice
provided to the Defendant. The State responds that the evidence is sufficient to establish
the Defendant‟s identity, and the trial court properly instructed the jury on identification.
Additionally, the State maintains that the trial court acted within its discretion in allowing
the co-defendant to testify.

       I. Sufficiency of the Evidence.3 The Defendant contends that the State failed to
prove his identity as the perpetrator of the crimes because none of the witnesses identified
him as the perpetrator of the crimes in open court. He acknowledges that multiple
witnesses testified that “James „Pee Wee‟ Pennock” perpetrated the drug transactions and
that the State introduced several video recordings that depict a person that “appears to be
the [D]efendant.” However, he argues that this evidence fails to establish his identity as
the perpetrator because no witness identified the Defendant as “James „Pee Wee‟
Pennock” or testified that the person in the videos was the Defendant.

        It is well-established that when considering the sufficiency of the evidence on
appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence. State v. Davis, 354 S.W.3d
718, 729 (Tenn. 2011) (citing State v. Majors, 318 S.W.3d 850, 857 (Tenn. 2010)).
When a defendant challenges the sufficiency of the evidence, the standard of review
applied by this court is “whether, after reviewing 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 (1979).
Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states, “Findings of
guilt in criminal actions whether by the trial court or jury shall be set aside if the evidence
is insufficient to support the finding by the trier of fact of guilt beyond a reasonable
doubt.” “Because a verdict of guilt removes the presumption of innocence and raises a
        3
          The Defendant challenged the sufficiency of the evidence establishing his identity as a sub-issue
of his challenge to the trial court‟s jury instructions regarding identity. For clarity, we address these
issues separately.
                                                   -4-
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009).

        “The identity of the perpetrator is an essential element of any crime.” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citing State v. Thompson, 519 S.W.2d 789, 793
(Tenn. 1975)). The State has the burden of proving the identity of the defendant as the
perpetrator beyond a reasonable doubt. State v. Cribbs, 967 S.W.2d 773, 779 (Tenn.
1998). The identity of the defendant as the perpetrator may be established by direct
evidence, circumstantial evidence, or a combination of the two. Thompson, 519 S.W.2d
at 793. “The credible testimony of one identification witness is sufficient to support a
conviction if the witness viewed the accused under such circumstances as would permit a
positive identification to be made.” State v. Radley, 29 S.W.3d 532, 537 (Tenn. Crim.
App. 1999) (citing State v. Strickland, 885 S.W.2d 85, 87-88 (Tenn. Crim. App. 1993)).
The identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. State v. Thomas, 158 S.W.3d 361, 388 (Tenn. 2005)
(citing State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993)).

       Although no witnesses pointed out the Defendant in court as the perpetrator of the
crimes, it is clear from the record that the witnesses were referring to the Defendant.
Sergeant Leggett, Investigator Gorman, and Officer Clements all referred to the
Defendant by name as the target of their investigation. Likewise, Barch referred to the
Defendant by name and testified that he had known the Defendant for eight or ten years.
See State v. Donald Davis, No. M2000-01503-CCA-R3-CD, 2001 WL 261547, at *2
(Tenn. Crim. App. Mar. 16, 2001) (“When a witness refers to a defendant by name, the
defendant‟s identity can be reasonably determined or inferred by the jury.” (citing State
v. Phillips, 728 S.W.2d 21, 25 (Tenn. Crim. App. 1986))). Further, during cross-
examination of Sergeant Leggett, defense counsel repeatedly asked Sergeant Leggett
about the investigation against “[his] client.” It is clear that counsel was referring to the
Defendant, and no correction was made by Sergeant Leggett. In fact, Sergeant Leggett
responded to one of counsel‟s questions by explaining that two of the drug transactions
occurred at “your client‟s home.” In addition, multiple video recordings of the drug
transactions were introduced into evidence and shown to the jury. The jury was free to
compare the videos to each other, to the Defendant, and to the witnesses‟ testimony.
Based on this evidence, a rational juror could conclude beyond a reasonable doubt that
the State identified the Defendant as the perpetrator of the crimes.

       II. Identity Jury Instructions. The Defendant argues that the trial court erred by
improperly instructing the jury on eyewitness identification testimony. Specifically, he
asserts that the court should have given the eyewitness identity instruction announced in
State v. Dyle, 899 S.W.2d 607 (Tenn. 1995) because the identity of the Defendant was a
                                              -5-
material issue in the case as no witnesses identified him in court as the perpetrator of the
crimes.

       In Dyle, the Tennessee Supreme Court promulgated the following eyewitness
identity instruction, which must be given in cases where identification is a material issue
and the instruction is requested by defense counsel:

       One of the issues in this case is the identification of the defendant as the
       person who committed the crime. The state has the burden of proving
       identity beyond a reasonable doubt. Identification testimony is an
       expression of belief or impression by the witness, and its value may depend
       upon your consideration of several factors. Some of the factors which you
       may consider are:

       (1) The witness‟ capacity and opportunity to observe the offender. This
       includes, among other things, the length of time available for observation,
       the distance from which the witness observed, the lighting, and whether the
       person who committed the crime was a prior acquaintance of the witness;

       (2) The degree of certainty expressed by the witness regarding the
       identification and the circumstances under which it was made, including
       whether it is the product of the witness‟ own recollection;

       (3) The occasions, if any, on which the witness failed to made an
       identification of the defendant, or made an identification that was
       inconsistent with the identification at trial; and

       (4) The occasions, if any, on which the witness made an identification that
       was consistent with the identification at trial, and the circumstances
       surrounding such identifications.

       Again, the state has the burden of proving every element of the crime
       charged, and this burden specifically includes the identity of the defendant
       as the person who committed the crime for which he or she is on trial. If
       after considering the identification testimony in light of all the proof you
       have a reasonable doubt that the defendant is the person who committed the
       crime, you must find the defendant not guilty.

Id. at 612. The supreme court emphasized that this instruction is only required where
identification is a material issue in the case, id., i.e., where the defendant puts it at issue
or the eyewitness testimony is uncorroborated by circumstantial evidence. Id. n.4. If
                                              -6-
identity is a material issue and the defendant does not request the instruction, the trial
court‟s failure to give it will be reviewed for harmless error. Id. at 612. If identity is not
a material issue, however, failure to give the instruction is not error at all. See State v.
Holt, 965 S.W.2d 496, 499 n.1 (Tenn. Crim. App. 1997) (“[O]nly if identity is a material
issue is a defendant entitled to the Dyle instruction upon request or a harmless error
analysis in the absence of a special request. If identity is not a material issue failure to
give the Dyle instruction is not error at all.”).

        In the instant case, the Defendant did not request the Dyle instruction at trial.
Indeed, when the trial court informed counsel that it intended to give “the short ID
charge,” defense counsel responded, “I think [the Defendant] identified himself.” The
trial court then instructed the jury on identification as follows:

               [T]he identity of the defendant must be proven in this case on the
       part of the State to your satisfaction beyond a reasonable doubt. In other
       words, the burden of proof is on the State to show that the defendant now
       on trial before you is the identical person who committed the alleged crime
       in which he is charged. In considering the identity of a person the jury may
       take into consideration all the facts and circumstances of the case.

             The court further charges you that if you were satisfied from the
       whole proof in the case beyond a reasonable doubt that the defendant James
       “Pee Wee” Pennock committed the crimes charged against him and you
       were satisfied beyond a reasonable doubt that he has been identified as the
       person who committed the crimes charged then it will be your duty to
       convict him.

              On the other hand, if you are not satisfied with the identity from the
       proof or you have a reasonable doubt as to whether he has been identified
       from the whole body of proof in the case, then you should return a verdict
       of not guilty.

       Notwithstanding the defendant‟s failure to request the instruction, the Defendant
contends that the trial court erred in failing to give the Dyle instruction because his
identity was a material issue as no witnesses identified him in open court as the
perpetrator of the offenses. We disagree. As previously noted, identification is a
material issue where the defendant puts it at issue or the eyewitness testimony is
uncorroborated by circumstantial evidence. Dyle, 899 S.W.2d at 612, n.4. Here, the
Defendant did not dispute his identity as the person involved in the transactions with
Barch; rather, his theory of defense seemed to be that he did not exchange drugs for
money during the meetings with Barch or that he was only acting as a “middle man”
                                             -7-
between his co-defendant, Nora Gibson, and buyers. In fact, during his own testimony,
the Defendant admitted that he sold drugs to Barch but claimed that he did not receive
any money in exchange for the drugs. Thus, the Defendant‟s identity was not a material
issue at trial, and the court‟s failure to give the Dyle instruction was not error.

        III. Admissibility of Nora Gibson’s Testimony. The Defendant contends that
the trial court erred in permitting his co-defendant, Nora Gibson, to testify at trial over his
objection because he had no notice that she would testify. He maintains that he was
prejudiced as a result because he had no opportunity to prepare his defense in light of her
testimony, which was “devastating to the [Defendant]‟s position.”

       “The determination of whether to allow a witness to testify is left to the sound
discretion of the trial judge.” State v. Kendricks, 947 S.W.2d 875, 883 (Tenn. Crim.
App. 1996) (citing State v. Underwood, 669 S.W.2d 700, 703 (Tenn. Crim. App. 1984)).
Accordingly, we will “not interfere with the exercise of that discretion unless a clear
abuse appears on the face of the record.” State v. Franklin, 308 S.W.3d 799, 809 (Tenn.
2010) (citing State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007)). A trial court does not
abuse its discretion unless it applies “an incorrect legal standard or reaches an „illogical
decision that causes an injustice to the complaining party.‟” Lewis, 235 S.W.3d at 141
(quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006)).

        Tennessee Code Annotated section 40-17-106 provides that the State must list “the
names of such witnesses as [it] intends shall be summoned in the cause” on the charging
indictment. “The purpose of this statute is to prevent surprise to the defendant and to
permit the defendant to prepare his or her defense to the indictment.” State v. Allen, 976
S.W.2d 661, 667 (Tenn. Crim. App. 1997). However, the statute is “directory only and
does not necessarily disqualify a witness whose name does not appear on the indictment
from testifying.” State v. Harris, 839 S.W.2d 54, 69 (Tenn. 1992) (citing State v. Street,
768 S.W.2d 703, 710-11 (Tenn. Crim. App. 1988)). “A defendant will be entitled to
relief for nondisclosure only if he or she can demonstrate prejudice, bad faith, or undue
advantage.” Allen, 976 S.W.2d at 667 (citing Harris, 839 S.W.2d at 69; State v. Baker,
751 S.W.2d 154, 164 (Tenn. Crim. App. 1987)).

       Upon a review of the record in the instant case, we discern no abuse of discretion
by the trial court in permitting Ms. Gibson to testify. First, although Ms. Gibson‟s name
was not listed in the indictment as a witness, she was listed as a co-defendant; thus, the
Defendant should have been aware of the possibility that she would be called as a
witness. See State v. Hunt, 665 S.W.2d 751, 755 (Tenn. Crim. App. 1984) (reasoning
that because the witness was indicted as a co-defendant, the defendant should have been
aware of the possibility that she would be called as a witness); Taylor v. State, 477
S.W.2d 765, 766 (Tenn. Crim. App. 1971) (concluding that although the witness was
                                              -8-
listed in the indictment as a co-defendant rather than a witness, he was not disqualified
from testifying). Indeed, when defense counsel objected to her testimony at trial on the
grounds that the Defendant lacked notice, the trial court responded, “She‟s a party
defendant.” Further, even assuming arguendo that the Defendant lacked notice, he has
failed to show how he was prejudiced by the delayed disclosure. See Harris, 839 S.W.2d
at 69. In this case, defense counsel failed to ask for a continuance or request additional
time to prepare for cross-examination of Ms. Gibson. Further, her testimony, including
both direct and cross-examination, covers only four pages in the trial transcript and
reveals little more than that the Defendant lived with Ms. Gibson and asked her to deliver
drugs to Barch on one occasion. The Defendant has failed to put forth any proof of
prejudice resulting from the late notice. Accordingly, he is not entitled to relief.

                                     CONLUSION

        Based on the foregoing authorities and analysis, we affirm the judgments of the
trial court.

                                                 _________________________________
                                                 CAMILLE R. MCMULLEN, JUDGE




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