         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs April 12, 2005

              STATE OF TENNESSEE v. CHRIS EDWARD SMITH

                 Direct Appeal from the Criminal Court for McMinn County
                            No. 04-071    Carroll L. Ross, Judge



                     No. E2004-02272-CCA-R3-CD - Filed August 3, 2005


Defendant, Chris Edward Smith, was convicted of the sale of less than 0.5 grams of cocaine, a Class
C felony, and was sentenced as a Range III, persistent offender to ten years imprisonment. On
appeal, Defendant argues (1) that the evidence was insufficient to support his conviction; (2) that the
trial court erred in overruling Defendant’s objection to the prosecutor’s peremptory challenge of the
only African-American prospective juror in the venire; and (3) that the trial court erred when it
mistakenly informed the jury that Defendant was also charged with possession of drug paraphernalia.
Defendant does not challenge his sentence on appeal. Following a thorough review of the record,
we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.

Charles M. Corn, District Public Defender; and William Carter Donaldson, Assistant Public
Defender, for the appellant, Chris Edward Smith.

Paul G. Summers, Attorney General and Reporter; Richard H. Dunavant, Assistant Attorney
General; Jerry N. Estes, District Attorney General; and Charles W. Pope, Jr., Assistant District
Attorney General, for the appellee, the State of Tennessee.

                                             OPINION

I. Sufficiency of the Evidence

        Captain Bill Matthews with the Athens Police Department requested the assistance of an
agent from the Tenth Judicial Drug Task Force to assist the Department in an undercover operation
involving a “buy/bust.” Captain Matthews said that in this type of operation, a law enforcement
official would purchase illegal drugs from an individual, and the individual would be immediately
arrested. Agent Paul Allen responded to the request. Captain Matthews conducted a surveillance
of a selected area in Athens about twenty minutes before Agent Allen attempted to purchase drugs,
and he observed Defendant standing on the street. Captain Matthews showed Agent Allen
Defendant’s photograph, as well as the photograph of at least one other suspected drug dealer. Agent
Allen was equipped with a two-way radio, a video camera, and an audible recording device in his
vehicle. Captain Matthews gave Agent Allen two twenty-dollar bills which were photocopied to
record the serial numbers of the currency. Captain Matthews, along with officers Patrick Upton and
Hall Williams, followed Agent Allen’s vehicle.

        Agent Allen drove to the Cook Park area and parked. Defendant walked up to Agent Allen’s
vehicle and asked Agent Allen “what he needed.” Agent Allen replied that he “needed a forty.”
Agent Allen said that a “forty” in street terms meant two rocks of cocaine. Defendant got into the
passenger side of Agent Allen’s vehicle and closed the door. He asked Agent Allen if he was a
police officer. Agent Allen said that he was not, and Defendant pulled two rocks of cocaine out of
his sock. Agent Allen gave Defendant $40.00, and Defendant left the vehicle. The transaction was
videotaped.

       Agent Allen radioed Captain Matthews that the buy was completed and provided a physical
description of Defendant. Captain Matthews spotted Defendant in an alley near the spot where
Agent Allen had parked his vehicle. Captain Matthews detained Defendant and searched him.
Defendant was carrying the two twenty-dollar bills which had been provided to Agent Allen for the
purpose of buying drugs.

      Carl Smith, with the TBI’s forensic science division, testified that the substance purchased
from Defendant was cocaine base, or crack cocaine, and weighed 0.2 grams.

      Defendant argues that the evidence at best showed only a casual exchange rather than an
unlawful sale of a controlled substance.

        When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced with a presumption
of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of
overcoming this presumption, and the State is entitled to the strongest legitimate view of the
evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).


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        It is an offense for a person to knowingly sell a controlled substance to another. Tenn. Code
Ann. § 39-17-417(a)(3). The sale of less than 0.5 grams of cocaine is a Class C felony. Id. § 39-17-
417(c)(2)(A). It is a misdemeanor offense, however, if the transaction constitutes a casual exchange.
Id. § 39-17-418(a). If the defendant has two or more convictions under this section, the offense is
a Class E felony. Id. § 39-17-418(d). Whether a transaction is a casual exchange or an unlawful sale
may be inferred from all of the facts and circumstances surrounding the transaction, including the
amount of drugs possessed by the defendant. Id. § 39-17-419; State v. Prince, 713 S.W.2d 914, 918
(Tenn. Crim. App. 1986). Although a casual exchange can involve the transfer of money, a
transaction will not be deemed a casual exchange if there was a design or previous plan to make the
exchange. State v. Helton, 507 S.W.2d 117, 120 (Tenn. 1974); Loveday v. State, 546 S.W.2d 822,
826 (Tenn. Crim. App. 1976).

         There is no indication that Defendant initiated a conversation with Agent Allen for any
purpose other than the sale of cocaine. Defendant handed Agent Allen a specific amount of drugs
in exchange for a specific amount of money. The trial court provided the jury with an instruction
as to the lesser included offense of the casual exchange of a controlled substance which, as indicated
by their verdict, the jury obviously rejected. The evidence when viewed in a light most favorable
to the State supports a determination by the jury beyond a reasonable doubt that Defendant intended
to sell the cocaine to Agent Allen. Defendant is not entitled to relief on this issue.

II. Batson Challenge

       Relying on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L. Ed. 2d 69 (1986),
Defendant argues that the exclusion of the only remaining African-American member of the venire
from the jury violated his constitutional right to equal protection under the law.

         The record establishes that Defendant is African-American. At the beginning of voir dire,
the trial court asked if any members of the venire were related to Defendant, and prospective juror
Upton was excused. Five other prospective jurors were excused for cause either because they knew
police officers who were involved with the case or were employed by the Athens Police Department,
had a family member involved with drugs, or expressed a preconceived opinion about the case.

        On the second round of challenges, the State exercised a peremptory challenge to exclude
prospective juror Sheila Parks, an African-American, from the venire. The State based its challenge
on the belief that Ms. Parks, whose maiden name was Scruggs, was related to Defendant even though
she had not responded to the trial court’s initial inquiry into family connections between the
members of the venire and Defendant. Some of Defendant’s extended family members were named
Scruggs. The prosecutor also said that Shannon Berger, an intern with the district attorney general’s
office, observed Ms. Parks wink at Defendant during voir dire.

      Defense counsel objected to the prosecutor’s peremptory challenge as impermissibly based
on Ms. Parks’ race. Counsel argued that there was no evidence that Ms. Parks was related to
Defendant. During a hearing out of the presence of the jury, Defendant denied that Ms. Parks was


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related to him, and said that Ms. Parks did not wink at him during voir dire. Counsel argued that it
was impossible for Ms. Berger to have witnessed any exchange with Defendant from her location
in the courtroom. The trial court found that the prosecutor’s challenge was not racially motivated
and excused Ms. Parks from the venire.

        In Batson, the United States Supreme Court held that a state’s use of peremptory challenges
to intentionally exclude potential jurors of the defendant’s race violates the defendant’s right to equal
protection. Batson, 476 U.S. at 89; 106 S. Ct. at 1719. “A criminal defendant may object to a race-
based exclusion of a juror, effected through peremptory challenges, regardless of whether the
defendant and the excluded juror share the same race.” State v. Carroll, 34 S.W.3d 317, 319 (Tenn.
Crim. App. 2000) (citing Powers v. Ohio, 499 U.S. 400, 415-16, 111 S. Ct. 1364, 1373-74, 113 L.
Ed. 2d 411 (1991)).

        The procedure for invoking a Batson challenge was discussed in Carroll as follows:

        Batson provides a three step process for the evaluation of racial discrimination claims
        in jury selection. First the defendant must make a prima facie showing that the
        prosecutor has exercised peremptory challenges on the basis of race. Puckett v. Elem,
        514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71, 131 L. Ed. 2d 834 (1995); Batson, 476
        U.S. at 96-98, 106 S. Ct. 1712, 1722-24. If the defendant satisfies this initial burden,
        the burden then shifts to the prosecutor to articulate a race-neutral explanation for
        excluding the venire member in question. Puckett, 514 U.S. at 767, 115 S. Ct. 1770-
        71; Batson, 476 U.S. at 94, 106 S. Ct. 1712, 1721. Third, the trial court must
        determine whether the defendant has met his burden of proving purposeful
        discrimination. Batson, 476 U.S. at 97-98, 106 S. Ct. 1712, 1723-24; Hernandez v.
        New York, 500 U.S. 352, 358-59, 111 S. Ct. 1859, 1865-66, 114 L. Ed. 2d 395
        (1991). In making its determination of whether use of a peremptory challenge was
        discriminatory, the trial court must articulate specific reasons for each of its findings.
        Woodson [v. Porter Brown Limestone Co.], 916 S.W.2d [896,] 906 [Tenn. 1996].
        The trial court’s findings are imperative for rarely will a trial record alone provide a
        legitimate basis from which to substitute an appellate court’s opinion for that of the
        trial court. Thus, on appeal, the trial court’s finding that the State excused a venire
        member for race-neutral reasons will not be reversed unless it is clearly erroneous.
        See Woodson, 916 S.W.2d at 906 (citations omitted).

Carroll, 34 S.W.3d at 319-20.

         As in Carroll, the trial court in the case sub judice did not make a specific finding that
Defendant had made a prima facie showing of discrimination. See id. at 392. Nonetheless, the trial
court would not have required the State to provide a race-neutral explanation for the challenge had
the trial court determined that a prima facie showing had not been made. Id.; see also Woodson, 916
S.W.2d at 905. “Thus, we assume that the court implicitly found that [Defendant] had satisfied the
first prong of the Batson test.” Carroll, 34 S.W.3d at 320. As the United States Supreme Court


                                                   -4-
observed in Hernandez, “[o]nce a prosecutor has offered a race-neutral explanation for the
peremptory challenges [without prompting] and the trial court has ruled on the ultimate question of
intentional discrimination, the preliminary issue of whether the defendant had made a prima facie
showing becomes moot.” Hernandez, 500 U.S. at 359, 111 S. Ct. at 1866.

        We agree with Defendant’s assessment that the trial court’s findings are sparse regarding the
State’s race-neutral explanation for the challenge. The record is sufficient, however, to undertake
our review.

        The issue in the second step of the Batson process rests upon “the facial validity of the
prosecutor’s explanation.” Id. at 360, 111 S. Ct. at 1866. “A neutral explanation . . . means an
explanation based on something other than the race of the juror.” Id. “Unless a discriminatory intent
is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. In
the second phase of the inquiry, the prosecutor’s explanation is not required to be “persuasive or
even plausible.” Puckett, 514 U.S. at 768, 115 S. Ct. at 1771.

         In the case sub judice, the prosecutor offered two explanations for the challenge. First, the
prosecutor surmised that Ms. Parks was related to Defendant because her maiden name was the same
as certain members of Defendant’s extended family. More importantly, however, the prosecutor
challenged Ms. Parks because Ms. Berger observed Ms. Parks wink at Defendant during voir dire.
A juror’s blood or personal relationship to the defendant is facially valid as a race-neutral basis for
the exercise of a peremptory challenge. See, e.g., Tenn. Code Ann. § 22-1-105 (“No person can act
as a juror in any case in which the person is interested, or when either of the parties is connected with
the person by affinity or consanguinity, within the sixth degree . . . .). The right to challenge for
cause “‘was designed to exclude from the jury triers whose bias or prejudice rendered them unfit,
and peremptory challenge was intended to exclude those suspected of bias or prejudice.’” State v.
Pamplin, 138 S.W.3d 283, 285-86 (Tenn. Crim. App. 2003) (quoting Manning v. State, 155 Tenn.
266, 292 S.W. 451, 455 (1927)).

         Defendant argues that notwithstanding the survival through the second step of the
prosecutor’s explanations for the peremptory challenge to Ms. Parks serving as a juror, the
explanations were so implausible as to have no purpose other than discrimination. During the third
step in the Batson process, “implausible or fantastic justification may (and probably will) be found
to be pretexts for purposeful discrimination.” Puckett, 514 U.S. at 768, 115 S. Ct. at 1771.

        The determination of a discriminatory intent on the part of the prosecutor “largely will turn
on evaluation of credibility.” Baston, 476 U.S. at 98 n.21, 106 S. Ct. at 1724 n.21. “In the typical
peremptory challenge inquiry, the decisive question will be whether counsel’s race-neutral
explanation for a peremptory challenge should be believed. There will seldom be much evidence
bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises
the challenge.” Hernandez, 500 U.S. at 365, 111 S. Ct. at 1869.




                                                  -5-
        We conclude that the prosecutor’s basis for the use of a peremptory challenge against Ms.
Parks was sufficiently race-neutral to withstand a Batson challenge. “‘The central function of the
right of peremptory challenge is to enable a litigant to remove a certain number of potential jurors
who are not challengeable for cause, but in whom the litigant perceives bias or hostility.’” State v.
Spratt, 31 S.W.3d 587, 598 (Tenn. Crim. App. 2000) (quoting United States v. Annigoni, 96 F.3d
1132, 1137 (9th Cir. 1996)). Whether or not Ms. Parks had a family relationship to Defendant, an
associate of the prosecutor’s office observed Ms. Parks expressing a bias toward Defendant, and the
trial court accepted this racial neutral reason for exercising a peremptory challenge. Determination
of a discriminatory intent depended largely on the evaluation of the prosecutor’s credibility in this
case. Defendant has not shown that the trial court erred in accrediting the State’s racially neutral
explanation for excusing the prospective witness. Defendant is not entitled to relief on this issue.

III. Informing Jury of Drug Paraphernalia Charge

       At the commencement of voir dire, the trial court stated:

       THE COURT:                     Ladies and gentlemen, you have been summonsed
                                      today as prospective jurors in a criminal case, in
                                      which the defendant . . . has been charged in a two-
                                      count indictment, one with sale or delivery of cocaine,
                                      and one count of possession of drug paraphernalia.

       [DEFENSE COUNSEL]:             Judge . . . Judge, can we approach?

       THE COURT:                     Yes.

       At a bench conference out of the presence of the prospective jurors, defense counsel
explained:

       [DEFENSE COUNSEL]:             Just for the record, the indictment that I have is count
                                      one, sale, and in the alternative delivery. There’s no
                                      paraphernalia involved in this case.

       THE COURT:                     Well, that’s what I was given, and paraphernalia.

       [PROSECUTOR]:                  Your Honor, we’re, we’re doing the sale and delivery
                                      (indiscernible). We’re going to hold off, as far as
                                      electing which, which one to go under, sale or
                                      delivery.

       THE COURT:                     Well, what about the paraphernalia though? That’s
                                      what it says on the docket.



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[PROSECUTOR]:        Right.

[DEFENSE COUNSEL]:   Judge, that’s, that’s two separate indictments.

THE COURT:           Okay.

[PROSECUTOR]:        That’s just an A misdemeanor. We thought we would
                     do this one today.

                              ***

[DEFENSE COUNSEL]:   Judge, may we approach again?

THE COURT:           Yes.

                              ***

[DEFENSE COUNSEL]:   I know that the jury members can’t hear what we’re
                     talking about, but I think that certainly is a prejudice
                     to Mr. Smith. I think in all, in an abundance of
                     caution, maybe we ought to just come back and do
                     this another day. The jury’s been notified. . .

THE COURT:           I don’t think they know the difference. They won’t
                     know the difference.

[DEFENSE COUNSEL]:   Okay.

THE COURT:           But I’ll, I’ll say something if you want me to or I’ll
                     just let it go.

[DEFENSE COUNSEL]:   All right. Why don’t you –

THE COURT:           If I say something. . .

[DEFENSE COUNSEL]:   Whatever you think is appropriate, Judge, but I think
                     it should be made clear to the jury that what we’re
                     here on is a one-count indictment that has an
                     alternative.

THE COURT:           Okay. That will be fine.




                               -7-
        At the conclusion of the bench conference, the trial court informed the prospective jurors that
“[w]e’re just correcting our information here, and I’ve been – the indictment is in the alternative,
either the sale or delivery of cocaine, so it’s really a one-count indictment, and that’s what we were
clarifying here in that matter there.”

         Defendant did not include this issue in his motion for new trial. Failure to raise an issue such
as this issue in a motion for new trial waives that issue for purposes of appellate review. See Tenn.
R. App. P. 3(e); Tenn. R. App. P. 36(a). Defendant, however, argues the issue under the plain error
doctrine. See Tenn. R. Crim. P. 52(b). He argues that the trial court’s reading of the wrong
indictment impermissibly informed the prospective jurors of evidence of Defendant’s other alleged
crimes and conduct and was unfairly prejudicial.

        In order to grant relief under the plain error doctrine, five factors must be present: (1) the
record must clearly establish what occurred in the trial court; (2) a clear and unequivocal rule of law
must have been breached; (3) a substantial right of the defendant must have been adversely affected;
(4) the defendant did not waive the issue for tactical reasons; and (5) consideration of the error is
necessary to do substantial justice. State v. Smith, 24 S.W.3d 274, 282-83 (Tenn. 2000)(citing State
v. Adlkisson, 899 S.W.2d 626, 641-42 (Tenn. Crim. App. 1994)). The record must support the
presence of all five factors; the absence of only one factor precludes further consideration. Smith,
24 S.W.3d at 283. Moreover, the error “must [have been] of such a great magnitude that it probably
changed the outcome of the trial.” Id. (citing Adkisson, 899 S.W.2d at 642).

        In the case sub judice, the trial court, at defense counsel’s request, provided a prompt curative
instruction to the jury acknowledging the correction of an error in the docket. Defendant did not
raise any objection to the content or scope of the trial court’s instruction. The trial court’s curative
instruction was sufficient to correct any possible prejudice that resulted from the misreading of the
indictment. The jury is presumed to follow the trial court’s instruction. State v. Smith, 893 S.W.2d
908, 914 (Tenn. 1994). Moreover, the record is devoid of any indication that the jury saw an
indictment charging Defendant with possession of drug paraphernalia, and no evidence was
presented at trial that even hinted at the presence of such items. The evidence supporting
Defendant’s conviction of the sale of cocaine was overwhelming. See United States v. Cotton, 535
U.S. 625, 631, 122 S. Ct. 1781, 1785, 152 L. Ed. 2d 360 (2002) (For a “substantial right” to have
been affected by the error, the defendant must show that he or she was prejudiced by the error).

        Based on the facts and circumstances present in this case, we cannot conclude that the issue
presented rises to the level of plain error. Defendant is not entitled to relief on this issue.

                                           CONCLUSION

        Following a thorough review of the record, we affirm the judgment of the trial court.

                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE


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