         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  October 20, 2009 Session

              STATE OF TENNESSEE v. DONALD RAY BLEVINS

                      Appeal from the Circuit Court for Warren County
                         No. F-11100 Larry B. Stanley, Jr., Judge



                     No. M2009-00124-CCA-R3-CD - Filed April 26, 2010


The Warren County Grand Jury indicted Appellant, Donald Ray Blevins, for two counts of
delivery of cocaine, a Schedule II controlled substance, in an amount of less than 0.5 grams,
and one count of delivery of cocaine, a Schedule II controlled substance, in an amount of 0.5
grams or more. These offenses were based upon three drug transactions involving a
confidential informant’s telephone calls to Appellant and further dealings with two other
individuals. Following a jury trial, Appellant was convicted of facilitation of delivery of
cocaine in an amount less than 0.5 grams, delivery of cocaine in an amount less than 0.5
grams, and delivery of cocaine in an amount of 0.5 grams or more. The trial court sentenced
Appellant as a Range I, standard offender and imposed an effective nine-year sentence to be
served at thirty percent. Appellant appealed his convictions arguing that the evidence was
insufficient to support his convictions and that the trial court erred in denying his motion to
sever offenses. We have reviewed the record on appeal. We conclude that the evidence was
sufficient to support Appellant’s convictions of the delivery offenses based upon the theory
of criminal responsibility. In addition, the evidence was sufficient to support his conviction
for facilitation of delivery. We also conclude that the trial court did not abuse its discretion
in determining that the telephone calls were part of a common scheme or plan and for that
reason the denial of Appellant’s motion to sever offenses was proper. Therefore, we affirm
the judgments of the lower court.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL, JJ., joined.

Michael Meise, Dickson, Tennessee, for the appellant, Donald Ray Blevins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney
General; Dale Potter, District Attorney General, and Tom Miner, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                          OPINION

                                     Factual Background

       In 2004, Angie Miller Keal was arrested on a vandalism charge. She offered to
become a confidential informant to help law enforcement complete various drug purchases
in Warren County. On December 6, 2006, Ms. Keal met with Investigator Mark Martin, of
the Warren County Sheriff’s Department, and Investigator Bill Davis, with the McMinnville
Police Department. The purpose of the meeting was to arrange a drug buy from Appellant.
The investigators searched Ms. Keal and her vehicle. They also set up a transmitting device
so they could listen to her conversations during the buys. She called Appellant and asked
“did he know where anything was.” Mr. James Sayne called Ms. Keal shortly after her
conversation with Appellant. As a result of Mr. Sayne’s telephone call, Ms. Keal went to
Mark’s Market, which was run by Appellant and his wife. Before she left, the investigators
gave Ms. Keal $100 to complete the buy. She drove her own vehicle and met Mr. Sayne.
He got into her car and told her to take him to the North Side Laundromat. When they
arrived at the laundromat, Ms. Keal got out of the car and waited at the laundromat, while
Mr. Sayne took her car to go get the drugs. He returned with the drugs. He asked Ms. Keal
if she would share the drugs with him. She refused. Ms. Keal drove Mr. Sayne back to
Mark’s Market. Appellant was standing by his car at the market. Ms. Keal drove to meet
the officers and turned over the drugs.

        On January 10, 2007, Ms. Keal again met with Investigators Martin and Davis to
arrange another drug buy. She called Appellant. She asked Appellant about obtaining some
crack cocaine. He told her she could get some from Mr. Sayne, but he would not do anything
less than a “benji.” She understood that to mean that Mr. Sayne would not sell an amount
below $100. The officers searched both Ms. Keal and her car and gave her $100. They also
set up a transmitting device again. Ms. Keal drove to Mark’s Market, and Mr. Sayne got in
the car with her. Once again, they drove to the laundromat. Mr. Sayne got out of the car, and
went into the backdoor of the laundromat. Mr. Sayne was the only one in the laundromat.
When he returned to the car, Mr. Sayne gave Ms. Keal some cocaine. Ms. Keal did not know
if Mr. Sayne had the cocaine on his person when she picked him up at Mark’s Market, or if
he had gotten it inside the laundromat. She drove Mr. Sayne back to the market and returned
to the officers. She handed over the cocaine to them.

       On January 17, 2007, Ms. Keal placed another call to Appellant. She told Appellant
that she did not want to purchase drugs from Mr. Sayne because he had not given her the full
amount of cocaine the last time. Appellant replied that it was not his fault that Mr. Sayne had


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shorted her. Shortly after her telephone call with Appellant, Michael Wright called Ms. Keal
from Appellant’s telephone. Once again, the officers searched Ms. Keal and her car. They
set up a transmitting device and gave her money to purchase the drugs. Ms. Keal met Mr.
Wright at Riverside Market. Mr. Wright got into her car, and she drove them to a gas station.
Mr. Wright gave her the drugs while they were at the gas station. Ms. Keal gave Mr. Wright
the $100 the officers gave her to purchase the drugs. Several times, Mr. Wright asked Ms.
Keal to buy a pack of cigarettes for him at the gas station. Eventually she agreed and went
to buy the cigarettes. Mr. Wright got out of Ms. Keal’s car and got into a car with Mr. Sayne.
After Mr. Wright left with Mr. Sayne, Appellant called Ms. Keal. Appellant asked her where
Mr. Wright was. Ms. Keal returned to the officers and gave them the drugs.

      Investigator Davis testified that Ms. Keal had been involved in around twenty-five
drug purchases that had resulted in ten arrests. He met with Ms. Keal before each of the
above-described purchases.

       On December 6, 2006, Investigator Davis met Ms. Keal. He searched both her person
and her car and outfitted her with a transmitting device. Ms. Keal called Appellant and
arranged the drug purchase. He followed Ms. Keal as she drove to Mark’s Market, picked
up Mr. Sayne, and drove to the laundromat. He continued to monitor the transaction until
Ms. Keal returned Mr. Sayne to the market. After she had completed the drug transaction,
Ms. Keal gave Investigator Davis the drugs.

       On January 10, 2007, Investigator Davis recorded a telephone conversation between
Ms. Keal and the Appellant regarding the drug purchase which transpired. He overheard
Appellant tell Ms. Keal that Mr. Sayne would not do less than a “benji.” Once again,
Investigator Davis followed Ms. Keal to Mark’s Market and monitored her transmitting
device. He overheard Ms. Keal receive a telephone call from Mr. Sayne. Later, Investigator
Davis determined that the telephone call by Mr. Sayne had been placed from Appellant’s
telephone.

       On January 17, 2007, Investigator Davis recorded Ms. Keal’s telephone conversation
with Appellant. After Ms. Keal concluded her telephone conversation with Appellant,
Investigator Davis monitored a telephone call Ms. Keal received from Mr. Wright. Mr.
Wright’s call was also placed from Appellant’s telephone. After the drug transaction was
completed, Investigator Davis overheard a telephone call from Appellant to Ms. Keal
wondering where Mr. Wright was.

       Later on January 17, officers stopped Mr. Sayne driving a red Jeep-like vehicle.
Investigator Davis stated that this vehicle had picked up Mr. Wright at the gas station after



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his drug transaction with Ms. Keal. Appellant came to the scene of the traffic stop and
claimed that he owned the vehicle driven by Mr. Sayne.

       After each of the three drug purchases, the officers packaged the drugs in small
envelopes to be sent to the laboratory for testing. Don Carmon is a drug analyst with the
Tennessee Bureau of Investigation (“TBI”). He received two samples of a rock-like
substance from Investigator Davis. He received a sample collected on December 6, 2006,
that he determined was cocaine and weighed 0.2 grams. He also tested a sample collected
on January 17, 2007, that tested positive for cocaine and weighed 0.5 grams. Celeste White,
with the TBI, also received a rock-like substance from Investigator Davis. The sample was
collected on January 10, 2007. She determined that the sample was cocaine and weighed 0.4
grams.

       The Warren County Grand Jury indicted Appellant for two counts of delivery of
cocaine, a Schedule II controlled substance, in an amount of less than 0.5 grams, and one
count of delivery of cocaine, a Schedule II controlled substance, in an amount of 0.5 grams
or more. Appellant filed a motion for severance of offenses on January 23, 2008. On June
25, 2008, the trial court held a hearing on Appellant’s motion. By written order, the trial
court denied Appellant’s motion to sever offenses.

       On August 28, 2008, a jury trial was held. At the conclusion of the trial, the jury
convicted Appellant of facilitation of delivery of cocaine in an amount less than 0.5 grams,
delivery of cocaine in an amount less than 0.5 grams, and delivery of cocaine in an amount
of 0.5 grams or more. On October 8, 2008, the trial court held a sentencing hearing and
imposed an effective nine-year sentence to be served at thirty percent as a Range I, standard
offender.

       Appellant filed a timely notice of appeal.

                                         ANALYSIS

                                Sufficiency of the Evidence

        Appellant argues that the evidence is insufficient to support his conviction for the
offenses. 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

                                              -4-
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
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990).

        At trial, the State proceeded under a theory of criminal responsibility to prove
Appellant’s guilt of the offenses. “A person is criminally responsible as a party to an
offense, if the offense is committed by the person’s own conduct, by the conduct of another
for which the person is criminally responsible, or by both.” T.C.A. § 39-11-401(a).
Tennessee Code Annotated section 39-11-402(2) provides that a person is criminally
responsible for the actions of another when, “[a]cting with intent to promote or assist the
commission of the offense, or to benefit in the proceeds or results of the offense, the person
solicits, directs, aids, or attempts to aid another person to commit the offense . . . .” The
person must “‘in some way associate himself with the venture, act with knowledge that an
offense is to be committed, and share in the criminal intent of the principal in the first
degree.’” State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994) (quoting Hembree
v. State, 546 S.W.2d 235, 239 (Tenn. Crim. App. 1976)). The defendant’s requisite criminal
intent may be inferred from his “presence, companionship, and conduct before and after the
offense.” State v. McBee, 644 S.W.2d 425, 428 (Tenn. Crim. App. 1982). “An indictment
that charges an accused on the principal offense ‘carries with it all the nuances of the
offense,’ including criminal responsibility.” State v. Lemacks, 996 S.W.2d 166, 173 (Tenn.
1999) (quoting State v. Lequire, 634 S.W.2d 608, 615 (Tenn. Crim. App. 1981)). A
defendant convicted under a criminal responsibility theory “is guilty in the same degree as
the principal who committed the crime” and “is considered to be a principal offender.” Id.
at 171. Criminal responsibility is not a separate crime; rather, it is “solely a theory by which
the State may prove the defendant’s guilt of the alleged offense . . . based upon the conduct
of another person.” Lemacks, 996 S.W.2d at 170. No particular act need be shown, and the



                                              -5-
defendant need not have taken a physical part in the crime in order to be held criminally
responsible. Id.

        “It is an offense for a defendant to knowingly . . . . [d]eliver a controlled substance.”
T.C.A. § 39-17-417(a)(2). “[A] person . . . acts knowingly with respect to the conduct or to
circumstances surrounding the conduct when the person is aware of the nature of the conduct
or that the circumstances exist.” T.C.A. § 39-11-302(b). Circumstantial evidence alone may
be sufficient to support a conviction. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn.
1987); State v. Gregory, 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993). The circumstantial
evidence “‘must be not only consistent with the guilt of the accused but it must also be
inconsistent with innocence and must exclude every other reasonable theory or hypothesis
except that of guilt, and it must establish such a certainty of guilt of the accused as to
convince the mind beyond a reasonable doubt that [the defendant] is the one who committed
the crime.’” Tharpe, 726 S.W.2d at 900 (quoting Pruitt v. State, 460 S.W.2d 385, 390 (Tenn.
Crim. App. 1970)).

        In the case at hand, a jury convicted Appellant of delivery of cocaine in an amount
less than 0.5 grams based upon the January 10, 2007 drug purchase and delivery of cocaine
in amount of 0.5 or more based upon the January 17, 2007 drug purchase. When the
evidence is viewed in a light most favorable to the State, we conclude that the evidence is
sufficient to support the jury’s verdict based upon the theory of criminal responsibility. On
both January 10 and 17, Ms. Keal telephoned Appellant to purchase drugs. Appellant
specifically stated with whom she would be dealing for her drug transactions. For the
January 10 purchase, Appellant told Ms. Keal she would need $100. Shortly after her call
to Appellant Mr. Sayne and Mr. Wright contacted her about arranging a drug purchase. With
regard to the January 10, 2007 purchase, Ms. Keal drove to Appellant’s place of business and
picked up Mr. Sayne who provided her with cocaine. Following the January 17 purchase,
Appellant called Ms. Keal to determine Mr. Wright’s whereabouts. In addition, evidence
was presented that both Mr. Wright and Mr. Sayne used Appellant’s telephone to call Ms.
Keal to arrange the drug purchases. Investigator Davis testified that Mr. Sayne was arrested
driving the red, Jeep-like vehicle that picked up Mr. Wright after the January 17 purchase,
and that Appellant came to the scene of the traffic stop claiming that he was the owner of the
vehicle.

        We conclude that a rational trier of fact could determined that Appellant was aware
that Mr. Sayne and Mr. Wright were going to sell cocaine to Ms. Keal. Therefore, he shared
the same criminal intent as required to convict under a theory of criminal responsibility. He
clearly acted with intent to promote or assist in the commission of the offense based upon his
fielding Ms. Keal’s initial telephone calls, discussing with whom she would be dealing,
providing his telephone for use by Mr. Sayne and Mr. Wright, and providing his car. For one

                                               -6-
buy, Appellant’s place of business was also the location where Ms. Keal initially met Mr.
Sayne who delivered the cocaine. Therefore, the evidence was sufficient on a theory of
criminal responsibility to support Appellant’s convictions of delivery of cocaine in an amount
less than 0.5 grams based upon the January 10, 2007 drug purchase and delivery of cocaine
in amount of 0.5 or more based upon the January 17, 2007 drug purchase.

        Appellant was also convicted of a facilitation of delivery of a cocaine in an amount
less than 0.5 grams based upon the December 6, 2006 purchase. As stated above, Tennessee
Code Annotated section 39-17-417(a)(2) makes it an offense for a defendant to knowingly
deliver a controlled substance. A violation of section 39-17-417(a) with respect to cocaine
in an amount less than .5 grams is a Class C felony. T.C.A. § 39-17-417(c)(2)(A).
Facilitation of possession of a controlled substance with the intent to sell or deliver has been
acknowledged as a lesser included offense of possession with intent to sell or deliver. See
State v. Nash, 104 S.W.3d 495, 499 (Tenn. 2003). Facilitation is defined as follows, “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.” As stated previously, criminal responsibility, under Tennessee
Code Annotated section 39-11-402(2), is, “Acting with intent to promote or assist the
commission of the offense, or to benefit in the proceeds or results of the offense, the person
solicits, directs, aids or attempts to aid another person to commit the offense.”

        We conclude that there was ample evidence to support Appellant’s conviction for
facilitation of delivery of cocaine. The evidence presented with regard to this count was that
Ms. Keal called Appellant in an attempt to arrange a drug purchase. Appellant informed Ms.
Keal with whom she would be dealing and provided a telephone to Mr. Sayne to call Ms.
Keal back to make arrangements. In addition, Ms. Keal picked Mr. Sayne up at Appellant’s
place of business. A rational trier of fact could reasonably conclude that Appellant was
furnishing substantial assistance while knowing that Mr. Sayne intended to sell cocaine to
Ms. Keal.

       Therefore, this issue is without merit.

                                          Severance

       Appellant’s second argument is that the trial court erred in denying his motion to sever
offenses. The State argues that the trial court properly denied the motion.

       A trial judge’s decision with respect to a motion for severance of offenses is one
entrusted to the sound discretion of the judge and will not be reversed on appeal absent an

                                              -7-
abuse of that discretion. State v. Shirley, 6 S.W.3d 243, 245 (Tenn. 1999). Additionally, “a
trial court’s refusal to sever offenses will be reversed only when ‘the trial court applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that caused
an injustice for the party complaining.’” Id. at 247 (quoting State v. Shuck, 953 S.W.2d 662,
669 (Tenn. 1997)). The Tennessee Supreme Court has opined that:


       [B]ecause the trial court’s decision of whether to consolidate offenses is
       determined from the evidence presented at the hearing, appellate courts should
       usually only look to that evidence, along with the trial court’s findings of fact
       and conclusions of law, to determine whether the trial court abused its
       discretion by improperly joining the offenses.


Spicer v. State, 12 S.W.3d 438, 445 (Tenn. 2000). Rule 8(b) of the Tennessee Rules of
Criminal Procedure governs permissive joinder of offenses. Pursuant to Rule 8(b):


       Two or more offenses may be joined in the same indictment, presentment, or
       information, . . . or consolidated pursuant to Rule 13 if: (1) the offenses
       constitute parts of a common scheme or plan; or (2) they are of the same or
       similar character.


Tennessee Rule of Criminal Procedure 14(b)(1) governs severance of offenses. That rule
provides:


       [I]f two or more offenses have been joined or consolidated for trial pursuant
       to Rule 8(b) the defendant shall have a right to severance of the offenses
       unless the offenses are part of a common scheme or plan and the evidence of
       one would be admissible upon trial of the others.


Tenn. R. Crim. P. 14(b)(1). A trial court may not deny a severance pursuant to Rule 14(b)(1)
unless it concludes:


       [F]rom the evidence and arguments presented at the hearing that: (1) the
       multiple offenses constitute parts of a common scheme or plan; (2) evidence

                                              -8-
       of each offense is relevant to some material issue in the trial of the other
       offenses; and (3) the probative value of the evidence of other offenses is not
       outweighed by the prejudicial effect that admission of the evidence would have
       on the defendant.


Spicer, 12 S.W.3d at 445 (internal citations omitted). Furthermore, “a defendant has an
absolute right to sever offenses that are only of the same or similar character.” Id. at 443.

        There are three types of common scheme or plan evidence recognized in Tennessee:
(1) offenses that reveal a distinctive design or are so similar as to constitute “signature”
crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses
that are all part of the same criminal transaction. Shirley, 6 S.W3d at 248.

        The “primary inquiry into whether a severance should have been granted under Rule
14 is whether the evidence of one crime would be admissible in the trial of the other if the
two counts of indictment had been severed.” Id. at 247 (quoting State v. Burchfield, 664
S.W.2d 284, 286 (Tenn. 1984)). However, Tennessee Rule of Evidence 404(b) excludes
evidence of “other crimes, wrongs, or acts” committed by the defendant when offered only
to show the defendant's propensity to commit those “crimes, wrongs, or acts” to ensure a
defendant receives a fair trial. When offenses alleged to be parts of a common scheme or
plan are otherwise relevant to a material issue at trial, however, then Rule 404 will not bar
their admissibility into evidence. See Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980).

       We initially point out that the record on appeal does not contain a transcript of the trial
court’s hearing on Appellant’s motion to sever. When a record is not complete and does not
contain relevant information, this Court must presume that the trial court was correct in its
ruling. See State v. Richardson, 875 S .W.2d 671, 674 (Tenn. Crim. App.1993); State v.
Cooper, 736 S.W.2d 125, 131 (Tenn. Crim. App.1987).

       According to the trial court’s order denying the motion, the State argued that
severance was improper because the offenses were part of a common scheme or plan based
upon the fact that Ms. Keal spoke with Appellant by telephone before each of the three drug
transactions. The trial court stated that Appellant admitted in both written and oral
arguments that he had spoken with her by telephone on each of the three occasions.
Appellant also argued that “while he is a party to the telephone calls, there is nothing in the
telephone conversations that would suggest Defendant’s involvement in criminal behavior.”
The trial court stated that this argument by Appellant raises the question as to whether the
telephone calls as a group would establish Appellant’s “guilty knowledge, his criminal intent



                                               -9-
or motive” and whether Appellant’s participation was a mistake or accident. The trial court
held the following:


                The Court finds that the issue of whether the Defendant acted with
       guilty knowledge, intent or motive to commit a crime, or whether he was
       caught up in a mistake or accident is a material issue in the trial of the
       Defendant[’s] cases which would warrant the admission of these telephone
       conversations. The Court finds that the proof to be [elicited] regarding
       Defendant’s participation in these conversations is clear and convincing in that
       Defendant acknowledges in his written and oral argument that he was in fact
       a party to the conversations and there is a digital recording of the conversations
       whose authenticity has not been challenged. The Court further finds the
       probative value of the evidence of these telephone conversations is not
       outweighed by the danger of unfair prejudice in that, unlike the situation where
       the State seeks to offer evidence of a criminal conviction or evidence that
       Defendant engaged in some other completed wrongdoing, the evidence to be
       offered in this case is that the Defendant took part in the relatively benign
       activity of engaging in telephone conversations and it will be a disputed issue
       at trial as to whether the telephone conversations involved any criminal activity
       or wrongdoing so the Defendant will have the opportunity to argue what
       meaning should be given to the evidence.

               In as much as the question of whether the Defendant had guilty
       knowledge, intent or motive to engage in criminal conduct, or was the victim
       of mistake or accident will have to be overcome by the State in this cause and
       to overcome those defenses the State will have to offer evidence that the
       Defendant was involved in a common scheme or plan . . . . The Court further
       finds that were the offenses severed for trial, evidence of the other two
       offenses would be admissible in the trial of the third for purpose of
       demonstrating Defendant’s guilty knowledge, motivation and intent and lack
       of any accident or mistake by the State in misconstruing Defendant’s telephone
       conversations.

        Based upon the record before this Court on appeal, we find no abuse of discretion by
the trial court. We conclude that the trial court’s determination that the telephone calls
constituted a common scheme was correct. The trial court clearly conducted the proper
analysis as set out above that “(1) the multiple offenses constitute parts of a common scheme
or plan; (2) evidence of each offense is relevant to some material issue in the trial of the other
offenses; and (3) the probative value of the evidence of other offenses is not outweighed by

                                              -10-
the prejudicial effect admission of the evidence would have on the defendant.” Spicer, 12
S.W.3d at 445.

      Therefore, this issue is without merit.

                                     CONCLUSION

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




                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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