             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                          AUGUST 1998 SESSION            October 28, 1998

                                                       Cecil W. Crowson
                                                      Appellate Court Clerk
STATE OF TENNESSEE,               )
                                  )    C.C.A. No. 01C01-9711-CC-00510
             Appellee,            )
                                  )    Giles County
v.                                )
                                  )    Honorable Robert L. Jones, Judge
STEVE EDWARD HOUSTON,             )
                                  )    (Sale of Cocaine and Casual Exchange
             Appellant.           )     of Cocaine)




FOR THE APPELLANT:                     FOR THE APPELLEE:

Hershell D. Koger                      John Knox Walkup
131 North First Street                 Attorney General & Reporter
P. O. Box 1148                         425 Fifth Avenue, North
Pulaski, TN 38478                      Nashville, TN 37243-0493

                                       Daryl J. Brand
                                       Assistant Attorney General
                                       425 Fifth Avenue, North
                                       Nashville, TN 37243-0493

                                       T. Michael Bottoms
                                       District Attorney General
                                       P. O. Box 459
                                       Lawrenceburg, TN 38464-0459

                                       Stella L. Hargrove
                                       Assistant District Attorney General
                                       P. O. Box 459
                                       Lawrenceburg, TN 38464-0459

                                       Richard H. Dunavant
                                       Assistant District Attorney General
                                       P. O. Box 304
                                       Pulaski, TN 38478-0304




OPINION FILED: __________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION


       The appellant, Steve E. Houston, referred herein as the defendant, appeals as of

right from convictions for two counts of casual exchange of cocaine, a Class A

misdemeanor, and two counts of sale of cocaine, a Class C felony, by a Giles County jury.

At the sentencing hearing, the trial court imposed two 15-year sentences, as a career

offender, to be served consecutively for the felony offenses and 11 months and 29 days

to be served concurrently for the misdemeanors. In addition, the trial court ordered these

two 15-year sentences to be served consecutively to an outstanding 13-year sentence

resulting from prior convictions.



       The appellant has presented two issues for appellate review: (1) whether the trial

court erred in not severing the four offenses for trial, and (2) whether the trial court erred

in not suppressing the March 22, 1995 taped conversation between the defendant, Kathy

Fralix, and Agent Gilleland, or otherwise by not redacting those portions which were not

directly related to the instant charges that related to prior bad acts of the defendant,

inflammatory and/or prejudicial statements by Agent Gilleland and Kathy Fralix and other

matters irrelevant and prejudicial.



       After an appropriate review of the record in this cause, briefs of all parties, and the

law, we affirm the trial court’s judgment.



                                FACTUAL BACKGROUND



       From January through September, 1995, the narcotics division of the Tennessee

Bureau of Investigation conducted an undercover operation in Giles County and Maury

County. Surveillance during this operation revealed the defendant’s involvement in illegal

drug activity. On January 13, 1995, Agent Maxey Gilleland equipped Kathy Fralix, an

informant, with a transmitter and tape recorder. Fralix, along with the agent, drove her

vehicle to the defendant’s home on Sumpter Street in Pulaski to purchase an “eight ball”


                                              2
of crack cocaine. After checking the license plate on a vehicle at the defendant’s home,

the vehicle was found to be registered to the defendant. Agent Gilleland gave Fralix $220

with which to buy the cocaine.



       Kathy Fralix entered the defendant’s home and emerged several minutes later

having purchased ten rocks of crack cocaine. The recording of this transaction failed.

However, the conversation between the agent and Fralix was recorded substantively giving

the identity and description of the defendant, his residence, and his vehicle. The crime

laboratory determined the substance to be 1.2 grams of cocaine.



       The second incident occurred on February 16, 1995, under the same conditions,

except this time Agent Gilleland drove his vehicle. Agent Gilleland and Kathy Fralix were

wired with tape recorders and transmitters which succeeded in recording the entire

transaction. Fralix went inside the defendant’s home, and Agent Gilleland was instructed

to move his vehicle from the front of the defendant’s home. Agent Gilleland watched the

defendant leave the house, go around the left side to retrieve the cocaine, and then re-

enter the house. This time Fralix returned to the vehicle with seven rocks of crack cocaine.

From the audiotape, the defendant was concerned with the location of the vehicle and

wanted Agent Gilleland to drive off and return after the transaction was complete. Fralix

paid the defendant $200 for the crack cocaine, which the crime laboratory determined to

be cocaine weighing 0.8 grams.



       On March 22, 1995, Agent Gilleland and Kathy Fralix attempted to buy $400 worth

of cocaine from another individual, Demetri Perry, at a different location. During this

transaction, Fralix paid this individual the money before receiving the cocaine. The

individual left and was to return with the cocaine; however, the defendant appeared on the

scene and entered into a conversation with Agent Gilleland and Fralix. This conversation

was recorded. The principal substance of the conversation involved the discussion of

drugs and, in particular, the defendant’s desire to supply Gilleland and Fralix with cocaine.

The defendant made various incriminating statements, however, no drug transaction


                                             3
occurred during this occasion.



       On March 23, 1995, Special Agent Mark Irwin met Kathy Fralix at the Wal-Mart in

Pulaski. Ms. Fralix was equipped with a transmitter and recorder. Both Agent Irwin and

Fralix proceeded to the defendant’s home. Ms. Fralix entered the defendant’s home,

remained for a short period of time, and returned to the vehicle to assist in parking it

elsewhere. She returned to the residence, but came out with instructions to park the car

further away. She emerged from the defendant’s home with nine rocks of crack cocaine,

for which she had paid $200. The crime laboratory determined the cocaine to weigh 0.7

grams.



       On March 31, 1995, Agent Irwin and Fralix again returned to the defendant’s home

and parked “up the road.” After a short period of time, Fralix returned and gave Agent Irwin

eleven rocks of crack cocaine for which she had paid the defendant $200. The crime

laboratory determined the cocaine measured 0.6 grams.



       At trial, each of the five recordings was played for the jury. The method of operation

for each transaction revealed that upon arrival of the purchasing agent, the defendant

exited his home, went around the left side of his house, retrieved the cocaine, and

completed delivery of the cocaine for the agreed price. Without presenting any evidence,

the defense rested.



                                 I. Severance of Counts



       The defendant was charged by the Giles County grand jury in two indictments (one

indictment contained three counts). Prior to trial and after a hearing at the request of the

State, all cases were consolidated for trial. Thereupon, the defendant made a

corresponding motion to sever all counts which the trial court denied. After the jury trial,

the defendant was found guilty of two counts of casual exchange of cocaine on the dates




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of January 13, 1995 and February 16, 1995, and two counts of sale of cocaine from the

dates of March 23, 1995 and March 31, 1995.



      The defendant contends this instant case does not fall under Tenn. R. Crim. P. 8(a)

as mandatory joinder citing State v. Dunning, 762 S.W.2d 142 (Tenn. Crim. App. 1988).

We agree with the defendant this is not a case of mandatory joinder under Rule 8(a).

However, Tenn. R. Crim. P. 8(b) permits the trial court to utilize permissive joinder of

offenses. Even the defendant concedes in his brief that “based upon the alleged offenses

and the case summaries of each alleged offense in indictment 7424 . . . the State could

have permissibly joined the cases pursuant to Rule 8(b), under the theory that the alleged

offenses are of the same or similar character.”



      In State v. Hoyt, 928 S.W.2d 935, 943 (Tenn. Crim. App. 1995), this court held that

when offenses are permissively joined under Rule 8(b), the defendant is entitled to

severance of those offenses unless (1) the offenses are a part of a common scheme or

plan and (2) the evidence would be admissible at the trial of the others. See also Tenn.

R. Crim. P. 8(b), 13(a), and 14(b)(1).



                              A. Common Scheme or Plan



       The first prong of Rule 14(b)(1), Tenn. R. Crim. P., requires the trial court to find a

common scheme or plan. Hoyt, 928 S.W.2d at 943. To constitute a “common scheme or

plan” as required by Tenn. R. Crim. P. 8(b) and 14(b)(1), the modus operandi of the

offenses must be similar and must occur within a close proximity of time thereby negating

any uncertainty that the offenses were committed by the same defendant. State v.

Peacock, 638 S.W.2d 837, 840 (Tenn. Crim. App.), per. app. denied (Tenn. 1982). To

determine whether certain crimes fit into this category, “the test is not whether there was

evidence that a defendant committed both crimes, but whether there was a unique method

used in committing the crimes.” Hoyt, 928 S.W.2d at 943 (quoting Young v. State, 566




                                              5
S.W.2d 895, 898 (Tenn. Crim. App. 1978)).



       The defendant contends that his motion to sever should have been granted as of

right because the State failed to carry the burden of proof with regard to the “common

scheme or plan.” In support of his claim, the defendant cites the cases of State v. Adams,

859 S.W.2d 359 (Tenn. Crim. App. 1992) and Hardy v. State, 519 S.W.2d 400 (Tenn. Crim.

App. 1974). The defendant in Adams was charged with felony murder and two counts of

armed robbery. One of the robberies took place at 2:30 a.m., and the other robbery which

resulted in the felony murder charge took place two miles away at 3:50 a.m. Adams, 859

S.W.2d at 361. This court held that only the suggestion of shared motivation would not

constitute a “common scheme or plan,” and further stated “no physical evidence linked the

cases together except the evidence that both crimes were committed by the same two

persons.” Id. at 362. Moreover, the court held that the failure to sever the cases did not

require a new trial because the evidence of guilt was abundant. Id. at 363. The Adams

case is completely distinguishable because the present case contains linking physical

evidence beyond the defendant’s commission of these four offenses.



       Also, the defendant cites the case of Hardy v. State, 519 S.W.2d 400 (Tenn. Crim.

App. 1974). The ruling in Hardy preceded the adoption of the Tennessee Rules of Criminal

Procedure, which became effective July 13, 1978. As a result, the decision in Hardy has

been limited in its application. See Peacock, 638 S.W.2d at 839.



       This court has repeatedly acknowledged “common scheme or plans” involving drug

transactions with similar factual patterns as the State cites in its brief. See Charles “Ace”

Barbee v. State, Dyer County No. 02C01-9610-CC-00372, 1997 WL 399376 (Tenn. Crim.

App., Jackson, July 16, 1997), per. app. denied (Tenn., Dec. 8, 1997) (involving same

agent, same defendant, same transaction area, same controlled substance, and small

amount of cocaine in four transactions). Although Barbee involved a post-conviction

appeal, this court held the offenses fit a “common scheme or plan;” therefore, if counsel




                                             6
had made a motion to sever, it would not have been successful. See also, State v. Joseph

Clyde Beard, Jr., Sullivan County No. 03C01-9502-CR-00044, 1996 WL 563893 (Tenn.

Crim. App., Knoxville, Sept. 26, 1996), per. app. denied (Tenn., Feb. 3, 1997) (finding

“common scheme” where same informant purchased similar amounts of cocaine from

same defendant for same amount of money in same location although transactions

occurred a month apart); State v. Roger D. Pulley, Wayne County No. 01C01-9501-CC-

00013, 1995 WL 555060 (Tenn. Crim. App., Nashville, Sept. 20, 1995) (holding five

offenses constituted “common scheme” occurring within eight weeks, involving same

sequence of events, same informant, and procedures); appeal after remand, No. 01C01-

9605-CC-00217, 1997 WL 438166 (Tenn. Crim. App, Nashville, July 31, 1997); State v.

Steve Mosley, Dickson County No. 01C01-9211-CC-00345, 1993 WL 345542 (Tenn. Crim.

App., Nashville, Sept. 9, 1993).



      In the present case, the four indicted offenses transpired over an approximate ten-

week period, with two transactions only eight days apart, each occurring at the defendant’s

home. All of the transactions involved the same controlled substance, approximately the

same number of rocks with approximately the same weight, the same defendant, the same

informant, and the same amount of money. Each time the defendant left his house and

went around the left side to retrieve the cocaine. Moreover, each time the agent

approached in his vehicle, under instructions of the defendant, the agent moved his vehicle

further away from the house. The proof was essentially the same modus operandi in each

offense, i.e., close in time, location, and character. We conclude these four offenses

constitute a “common scheme or plan” as contemplated under Tenn. R. Crim. P. 8(b) and

14(b)(1).



                 B. Admissibility of Evidence of One at Other Trials



       The second prong required under Rule 14(b)(1) for joinder of offenses is that the

evidence of one offense would be admissible upon the trial of the others. Hoyt, 928




                                            7
S.W.2d at 944. This court held this prong was satisfied if the evidence would have been

admissible under the provisions of Tenn. R. Evid. 404(b). Id. Generally, evidence of other

crimes is not admissible to prove the defendant acted in conformity therewith, unless the

trial court determines that a material issue exists to show identity, motive, intent, guilty

knowledge, absence of mistake or inadvertence, and other material points. Hoyt, 928

S.W.2d at 944; State v. Hallock, 875 S.W. 2d 285, 291 (Tenn. Crim. App. 1993), per. app.

denied (Tenn. 1994).



         Here, the defendant does not dispute that he committed the other offenses, only that

“none of the evidence of one case is relevant to any other case” under Tenn. R. Evid. 401,

402, and 403. Specifically, he argues that the introduction of evidence regarding the other

offenses violates fundamental fairness regarding prior bad acts under Tenn. R. Evid.

404(b). The trial court, in a pretrial hearing, must weigh the evidence to determine if the

probative value is outweighed by the prejudicial effect. Tenn. R. Evid. 404(b)(3). This court

has held:

               Factors in weighing the probative value include the
               prosecution’s need for the evidence, the likelihood the
               defendant committed the other crimes, and the degree of its
               relevance. The similarity of the acts make the probative value
               particularly significant. The distinctive design in the
               commission of a series of crimes may serve as the basis for
               either admitting evidence of the other crimes or having
               consolidated trials.

State v. McKnight, 900 S.W.2d 36, 51 (Tenn. Crim. App. 1994), per. app. denied (Tenn.

1995).



         To comply with the requirements of Rule 14(b)(1), the trial court was required to

conduct a hearing to determine if evidence of one offense is relevant to a material issue

in the trial of the other offense and to determine whether the probative value of such

evidence outweighs any prejudicial effect. In the present case, the trial court did not

conduct such a hearing.1 We elect to complete this analysis.


         1
        The trial court did conduct a hearing on the defendant’s motion to sever, but the
hearing minimally met Rule 404(b) requirements. The record does not reflect the trial
court’s ruling as to Rule 404(b), in that no evidence was presented, no finding was made
as to a material matter, and no balancing test was completed.

                                              8
         The defendant does not contest the fact that he sold crack cocaine to the State’s

agents. He defends the felony charges, however, upon grounds that his sales of cocaine

were “casual exchange” rather than a designed sale as contemplated by Tenn. Code. Ann.

39-17-417(a)(3). As such, the evidence of the other counts was relevant. Each of the

transactions were closely related with a distinctive design common among the four

occurrences. The probative value of the evidence clearly outweighs the danger of unfair

prejudice. See Barbee, Dyer County No. 02C01-9610-CC-00372 (holding evidence

admissible as probative of both identity and guilty knowledge); see also, Pulley, Wayne

County No. 01C01-9501-CC-00013; State v. Wayne Hymes Richards, Cumberland County

No. 03C01-9503-CR-00102 (Tenn. Crim. App., Knoxville, July 8, 1996). Thus, we conclude

the evidence of one offense would be admissible upon the trial of the others.



         Furthermore, on appeal, the denial of the severance will not be overturned unless

it appears the defendant was clearly prejudiced. State v. Barber, 753 S.W.2d 659, 671

(Tenn.), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 236 (1988); State v.

Coleman, 619 S.W.2d 112, 116 (Tenn. 1981); Parham v. State, 885 S.W.2d 375, 383

(Tenn. Crim. App.),     per. app. denied (Tenn. 1994).      The defendant has failed to

demonstrate that he has been clearly prejudiced.



         Therefore, we conclude the trial court properly granted the permissive joinder of

offenses and properly denied the defendant’s motion for severance. This issue is without

merit.

                            II. Suppression of the Audiotape



         In his second issue, the defendant challenges the admission of the audiotaped

conversation of March 22, 1995 between Agent Gilleland, Fralix, and the defendant.

Alternatively, the defendant argues the trial court erred by not redacting certain portions

of this audiotaped conversation because the contested portions did not directly relate to

any of the other charged offenses and would mislead and prejudice the jury. In support




                                             9
of this contention, the defendant relies upon Tenn. R. Evid. 404(b) and State v. Tizard, 897

S.W.2d 732, 734 (Tenn. Crim. App. 1994), in that the defendant had particular propensity

or acted in conformity therewith in the stated offenses. The defendant contends that the

introduction of this tape was not harmless error because in the two transactions preceding

this conversation, the jury only convicted him of casual exchange of cocaine, and in the

two transactions following this conversation the jury convicted him of felony sale of

cocaine.



       In ruling on the motion to suppress, the trial court found the defendant’s statements

regarding the $400 crack deals and stealing away money from his competitors were “plenty

relevant and probative on the issue of casual exchange versus intent to engage in the kind

of illicit business.” The trial court overruled the motion to suppress the entire audiotape

and a motion to redact on all but three sentences. However, on a subsequent motion to

redact, the trial court granted the motion with regard to three statements contained in the

audiotape: (1) the self-serving statement of Fralix, the informant, that “Peps [defendant],

a big time dealer here,” (2) “Cops done got all my money man,” and (3) “I’ve been in and

out of jail man.”



       This particular audiotape recording stems from an unrelated drug transaction

involving the purchase of cocaine by Agent Gilleland and Fralix from another individual at

that individual’s residence. Fralix had “fronted” the individual $400 for cocaine, and the

individual left to secure the cocaine. While awaiting the return of the individual, the

defendant appeared at the residence and introduced himself to the agent, Gilleland. Agent

Gilleland explained the individual had left with the money to which the defendant stated,

“Four hundred -- goodness -- that would have made my day -- man -- you would have got

your dope man.” The agent then asked for the price of an “eight ball” and the defendant

stated, “All I got is . . . two hundred dollars worth . . . if I can get rid of that . . . I’m fixing to

go get some real big stuff . . . I have to get rid of that . . . I’m trying to start up now.” Still

frustrated over his loss of the sale, the defendant continued, “Damn man . . . four hundred




                                                  10
. . . you could have come and seen me man . . . Hell, you and I need to talk about . . . I

need to know when you’re coming around.” From there, the defendant wanted to know how

often the agent came into town to purchase cocaine so that he could be his regular

supplier. Speaking to the agent, the defendant said, “Man you trying to make it [drug

dealing] . . . I thought you was smoking like hell man.”



       The relevance of evidence is determined by the trial court pursuant to Tenn. R. Evid.

401 and will not be overturned without an abuse of discretion. State v. Forbes, 918 S.W.2d

431, 449 (Tenn. Crim. App. 1995); State v. Leath, 744 S.W.2d 591, 593 (Tenn. Crim. App.

1987). A declaration of intent to engage in criminal conduct is relevant and admissible,

State v. Woods, 806 S.W.2d 205, 209 (Tenn. Crim. App. 1990), cert. denied, 502 U.S.

1079, 112 S.Ct. 986, 117 L.Ed.2d 148 (1992), unless there is no apparent relationship

between this statement and the subsequent crime. The defendant’s statements on this

day reflect his attitude of intent to engage in the illicit drug trade and, as a matter of fact,

did so the next day and eight days later. We conclude the redacted version of the tape

was relevant and admissible as the trial court properly found and was not unduly

prejudicial, confusing, or misleading to the jury. This issue is without merit.



       Thus, the judgment of the trial court is affirmed.




                                            ________________________________________
                                            L. T. LAFFERTY, SENIOR JUDGE

CONCUR:



___________________________________
JOHN H. PEAY, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




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