         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs March 12, 2002

                 STATE OF TENNESSEE v. OLIVIA WASHBURN

                Direct Appeal from the Circuit Court for Henderson County
                       No. 99-065-2T1    Roy B. Morgan, Jr., Judge



                     No. W2001-01847-CCA-R3-CD - Filed June 11, 2002


A Henderson County Circuit Court jury found the defendant, Olivia Washburn, guilty of the sale and
delivery of .5 grams or more of cocaine, Class B felonies, and assessed two separate $25,000 fines.
The trial court sentenced the defendant as a Range I, standard offender, imposed an eight-year
sentence to be served in the Tennessee Department of Correction, and merged the fines so that the
defendant was ordered to pay a total of $25,000. On appeal, the defendant argues that the trial court
erred in concluding both that her statement to law enforcement officers was voluntary and that the
evidence against her was sufficient, as well as in allowing into evidence a videotape not produced
to the defense. These assignments are without merit. However, we conclude that the trial court erred
in admitting the defendant’s statement without considering whether the probative value of the
numerous references to other drug offenses outweighed their prejudicial effect. The judgments of
the trial court are reversed, and the matter is remanded for a new trial.

   Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Reversed and
                               Remanded for a New Trial

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Olivia Washburn.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James
G. Woodall, District Attorney General; and Bill R. Martin, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                            OPINION

        The defendant was indicted for sale of cocaine over .5 grams, delivery of cocaine over .5
grams, two counts of sale of methamphetamine, and two counts of delivery of methamphetamine,
these offenses alleged to have occurred on three occasions in October, November, and December
1998. Following a trial, she was convicted only of the counts alleging that she sold (Count 1) and
delivered (Count 2) more than .5 grams of cocaine “on or about December 30, 1998.” She then
timely appealed these convictions. Upon review, we conclude that it was error to allow the State to
present testimony of the defendant’s admission to numerous other drug offenses without considering
whether the prejudicial effect of these admissions outweighed their probative value. Accordingly,
we reverse the judgments of conviction and remand this matter for a new trial.

                                             FACTS

         Lynn Williams testified that she had known the defendant for ten years, getting to know her
better after hiring a friend of the defendant’s to work at the Amoco convenience store in Lexington.
The defendant first came to the Amoco to see her friend but later came because she and the
defendant had a “drug relationship” that continued until September of 1998. Williams said that she
stole money from her employer in order to buy drugs. Learning of the theft, her employer agreed
that if she paid the money back, no charges would be pressed against her. She testified that she did
repay the money and no charges were filed.

         On the day that Williams and her employer made this agreement, Officer Michael Harper
came to her house, as a friend, and asked her what happened at the Amoco convenience store.
Harper came back the next day and asked who had been selling her the drugs. She told him and
agreed to be a paid, confidential informant for the Lexington Police Department. In that capacity,
Williams called the defendant and arranged to buy a gram of cocaine on approximately October 29,
1998. Williams was fitted with a “wire” and searched by Officer Lisa Scott, while Officers Michael
Harper and Todd Bowman searched Williams’s car. The officers provided her with $100 to buy the
drugs from the defendant, and she drove to the Smokehouse Tobacco Store in Lexington where the
defendant worked. The officers followed her in a separate vehicle. At the drive-thru window of the
store, the defendant gave her the drugs and she handed the defendant the money. Williams said she
drove immediately back to Officer Harper’s residence and gave the drugs to Harper. Officer Scott
removed the wire and searched her again, and Officers Harper and Bowman searched her car a
second time.

        Williams said she agreed to be an informant a second time on approximately November 28,
1998. She called the defendant again and arranged to buy the drugs the next day. She was searched
and wired by Officer Scott, and Officers Harper and Bowman searched her car before she made the
buy. They gave her another $100, and she went to the Smokehouse Tobacco Store’s drive-thru
window, gave the defendant the money, and the defendant gave her the drugs. She returned to
Officer Harper’s residence, where she gave the drugs to Officer Bowman, and she and her car were
searched again.

       Williams testified that she acted as an informant a third time at the end of December 1998.
She said Officer Harper wanted her to make a videotaped drug buy with the help of the Tennessee
Bureau of Investigation (“TBI”). She went to the Jackson Civic Center to meet two TBI agents, one
of whom was Gary Azbill. They put a microphone and video camera inside her car prior to the

                                                -2-
December drug transaction. The agents asked her to call the defendant and request two “eight balls”
of cocaine, which is a package of cocaine containing three and a half grams. Williams said the
defendant raised the price once before saying that she could get the two “eight balls” for $200 each.
She and her vehicle were searched, and the TBI agents gave her $400 to make the buy. She then
bought the drugs from the defendant at the Smokehouse Tobacco Store and returned to Officer
Harper’s residence. Williams testified that she gave the drugs to Special Agent Azbill. She said
Officer Scott searched her, and she thought her car was searched while she was inside.

        Lisa Mays, the TBI forensic scientist who tested the samples from the three drug purchases
from the defendant, testified that the drugs from the first two sales contained .3 grams of
methamphetamine, rather than cocaine. Mays said that a lay person could mistake cocaine, which
is a white powder, for methamphetamine, which is sometimes in the form of a white powder. She
also testified that the drugs from the December 30, 1998, transaction were determined to be 4.1
grams of cocaine.

        Michael Harper, an investigator for the Lexington Police Department, testified. His
testimony corresponded with that of Lynn Williams regarding the October, November, and
December 1998 drug transactions with the defendant. Harper said that he originally talked to
Williams, as a friend, about the money she stole from her employer, and was never part of any
investigation in the matter. Officer Harper and the other officers followed Williams each of the three
times she bought the drugs from the defendant. The tapes they made from her wire for these sales
were turned over to TBI Special Agent Gary Azbill, as were the drugs recovered from each of the
three transactions. He said that he and the other officers did a thorough search of the informant’s
car each time and did not find any controlled substances.

        Gary Azbill, a special agent with the TBI, testified that he became involved in this case when
his boss instructed him to assist the Lexington Police Department in making an undercover drug buy.
He and Special Agent Jimmy Barnes met with Williams, and Barnes installed a camera and
transmitter in her car. Officer Harper gave him an audiotape of the informant’s December telephone
conversation setting up the drug buy with the defendant. However, Azbill said there were no tapes
of the October and November drug transactions. He said that he, Barnes, Harper, and Bowman
searched Williams’s car and found no contraband before she was sent to buy the drugs on December
30, 1998.

       Officer Lisa Scott of the Lexington Police Department testified that she searched Lynn
Williams on October 29, 1998, and November 28, 1998, at Officer Harper’s residence before and
after Williams bought the drugs. She also put a wire on Williams on those two dates and never
found contraband on Williams during her searches. Officer Scott testified that she did not search
Williams on December 30, 1998.

       Officer Todd Bowman of the Lexington Police Department testified, and much of his
testimony corresponded with that of Officer Harper’s as to the drug transactions between the
informant and the defendant in October, November, and December of 1998.

                                                 -3-
        Jimmy Barnes, a special agent with the TBI, testified that he made an audiotape of the
December drug transaction between Williams and the defendant from the wire that was placed on
Williams. He also made a videotape of the transaction by placing a small camera inside Williams’s
car and later merged the audiotape and the videotape of the December 30, 1998, drug sale. The State
asked Agent Barnes to identify an unedited videotape that recorded the entire December drug
transaction from the time the officers turned the camera “on” to the time that Williams turned over
the drugs at Officer Harper’s residence. Defense counsel objected to the tape, claiming that this
long, unedited version of the December drug transaction had not been provided to him. He said that
he was only given a shorter videotape that only covered the actual drug transaction. The trial court
allowed defense counsel to view the entire unedited version of the tape and question Barnes outside
the presence of the jury before admitting the tape into evidence. Barnes testified that he was the one
who turned the tape “off” when Williams returned to Harper’s residence after the December drug
transaction. The prosecution then rested its case.

        The defendant testified that Lynn Williams had called her in December to ask if she could
get a dietary supplement called Vitablend, and on December 30, 1998, she sold Williams a fairly
large portion of Vitablend. The telephone conversations she had with Williams from October to
December of 1998 were about Vitablend. She also said that since Vitablend is a white powdery
substance, it looks like cocaine. She testified that she was held for four hours after being arrested
without being allowed to speak with an attorney or call her father. She said that Special Agent
Azbill “concocted” her statement and that she made no admission of guilt to the officers at any time.
She said that she never read or signed the statements about which Special Agent Azbill testified. She
denied selling methamphetamine to Williams on October 29 or November 28 of 1998, or selling
cocaine to her on December 30, 1998.

       After the defense had rested, Lynn Williams was recalled by the State as a rebuttal witness,
and denied that she had bought dietary supplements from the defendant at any time.

                                              ANALYSIS

                       I. Erroneous Admission of Defendant’s Statement

       The defendant argues on appeal that the trial court erred in admitting her statement both
because it was involuntary and because it included evidence of criminal conduct for which she had
“neither been charged nor convicted.”

                                 A. Voluntariness of the Statement

        The defendant argues that her statement to the police was involuntary, apparently because
of “her emotional state at the time of her arrest,” her request to have an attorney or her father present,
and because she gave the statement to avoid being prosecuted for the marijuana found in her car.



                                                   -4-
        We have one initial consideration as to whether the defendant’s statement was “voluntary.”
Agents Azbill and Barnes testified at the hearing on the motion to suppress only that the defendant
was advised of her “Miranda rights,” without specifying the specific rights of which she was advised.
Simply because a “card” listing Miranda rights is read to a suspect, as apparently occurred here, does
not mean that we must assume that the advice was complete and accurate. If there is an advice of
rights issue, the record should reflect the specific rights of which the defendant was advised. See
Ex parte Price, 725 So. 2d 1063, 1070 (Ala. 1998), cert. denied, 526 U.S. 1133, 119 S. Ct. 1809, 143
L. Ed. 2d 1012 (1999). However, it is unnecessary for us to ascertain in the instant appeal whether
the shorthand term “Miranda rights” is adequate, for the defendant testified during the hearing that
she was aware of her Miranda rights, having been advised of them during two prior arrests.

         In Miranda v. Arizona, the United States Supreme Court held that “the prosecution may not
use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706 (1966).
The privilege against self-incrimination is spelled out in the text of the Fifth Amendment, which
states that “no person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. Where an “interrogation continues without the presence of an attorney and
a statement is taken, a heavy burden rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against self-incrimination and his right to retained
or appointed counsel.” Id. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724 (citing Escobedo v. Illinois,
378 U.S. 478, 490 n.14 (1964)). The Court explained that “[t]he requirement of warnings and waiver
of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a
preliminary ritual to existing methods of interrogation.” Id. at 476, 86 S. Ct. at 1629, 16 L. Ed. 2d
at 725.

         Article I, section 9 of the Tennessee Constitution states that “in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9.
Whether a waiver of this right is voluntarily, knowingly, and intelligently made is determined by the
totality of the circumstances under which the rights were waived. See State v. Callahan, 979 S.W.2d
577, 581 (Tenn. 1998). However, this court has stated that a court may not conclude that a
defendant’s confession was constitutionally involuntary based on the defendant’s “subjective
perception” that it was involuntarily obtained. State v. Smith, 42 S.W.3d 101, 109 (Tenn. Crim.
App. 2000), perm. to appeal denied (Tenn. 2001) (citing Smith, 933 S.W.2d at 455).

        At the hearing on the defendant’s motion to suppress, Special Agent Gary Azbill described
the circumstances surrounding the defendant’s statement:

                Q Did you advise [the defendant] as far as why she was being
                picked up and/or arrested?

                A Yes, sir, we did. At the time we arrested her at her workplace, we
                told her why she was being arrested.

                                                   -5-
               Q And, was she advised of her Miranda rights?

               A Yes, sir, she was, twice as a matter of fact. That’s not usually
               commonplace, but Special Agent Barnes advised her of her Miranda
               rights there at the store, and, of course, she was transported, and then
               I advised her again prior to starting the interview at the police
               department.

               ....

               Q Would it be fair to say that she was very cooperative with you?

               A Yes, sir, she was. We were wanting her cooperation, too. She
               was cooperative, and we were hoping to go further with this
               investigation with others that were supplying her with drugs.

               Q Did she at any time request a lawyer?

               A Absolutely not.

               Q Did she at any time request that the interview stop until she had
               the chance to converse with anybody about the situation?

               A No, sir, she didn’t.

               Q Was there any type of discussion in relation to this interview as
               far as negotiation or compromise in relation to her charge?

               A No, sir.

               Q Were the statements given voluntarily or involuntarily?

               A They were voluntary.

Agent Azbill said he did not discuss with the defendant the setting of a bond and told her that she
would not be charged with possession of marijuana.

        However, he testified only in general terms as to the statement without relating in detail what
the defendant had told him:

                   Basically she admitted to selling drugs there at her workplace
               from December of ‘98 I think ‘til March or April of ‘99. We didn’t
               get into specifics because we were kind of protecting the cases to the

                                                 -6-
               particular incident we were concerned about, the undercover buys that
               happened there, but we talked about other instances with other sales,
               and she admitted to selling methamphetamine, cocaine at the store.

       During the hearing, the defendant testified that she was “very upset” and “[v]ery unstable
emotionally” at the time of the statement. She asked that her father be called, and was told that
would not be done. She was not allowed to telephone her father or make any other calls. She asked
“for any kind of legal counsel” to tell her what she “needed to do,” but was told that she “did not
need anyone.” She was told that by cooperating she would get a lower bond and would not be
prosecuted for the marijuana found in her car.

       At the conclusion of the hearing, the trial court found that the defendant’s statement was
voluntary:

                   I do find from the proof today that this Defendant did freely and
               voluntarily waive her Miranda rights at the time and gave this
               statement.

                    There are some issues I’m sure that can be brought out if this goes
               to jury trial. Mr. Mosier and Mr. Martin will both be able to skillfully
               do that, but she had been advised of Miranda before. There’s some
               dispute as to whether she was advised once or twice on this occasion,
               but by her own admissions at least once. It’s preferable certainly that
               things are in writing, but there’s no rule requiring that. She did give
               written consent to search.

                   I think under the circumstances, and I do have to look at the
               totality of the circumstances, that she was properly advised and,
               again, that she freely and voluntarily raised those rights and gave
               whatever statement she gave.

However, the trial court reserved ruling on the use to which the statement could be put at trial:

                    And as to the utilization of those statements for purposes of trial,
               I’ll have to address that prior to any trial.

        The factual findings made by the trial court at a hearing on a motion to suppress are binding
on the appellate court unless the evidence preponderates against them. State v. Ross, 49 S.W.3d 833,
839 (Tenn. 2001). Having the opportunity to view the witnesses as they testify enables the trial court
to assess their credibility, resolve evidentiary conflicts and determine the weight and value to be
given the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We are not bound by the trial
court’s conclusions of law, State v. Simpson, 968 S.W.2d 776, 779 (Tenn. 1998), and review de novo


                                                 -7-
its application of the law to the facts. State v. Daniel, 12 S.W.3d 420, 423 (Tenn. 2000).

         The evidence from the motion to suppress hearing provides sufficient proof to rebut the
defendant’s claim that her statement was not voluntary. The record does not preponderate against
the trial court’s determination that the defendant was advised of her Miranda rights and voluntarily
waived these rights when she made her statement to Special Agent Azbill. Thus, we conclude that
the trial court did not err when it refused to suppress the defendant’s statement.

               B. Irrelevant Nature and Prejudicial Effect of Defendant’s Statement

       The defendant argues on appeal that her statement, as recited at trial by Agent Azbill, should
not have been admitted because it was irrelevant and violated Tennessee Rule of Evidence 404(b).
The State responds on appeal that the statement was admissible to show identity and common
scheme or plan.

       At trial, defense counsel objected as Agent Azbill was asked on direct examination to recite
the defendant’s statement and, at a bench conference following an objection to this testimony,
defense counsel explained why the statement should not be admitted:

                    MR. MOSIER: Judge, he’s going into a lot of conduct prior to these
                    three occasions that she’s been neither charged with or convicted of.
                    It’s a big catharsis where she admits a lot of things in very general
                    terms, but it has nothing to do – They don’t even ask her a question
                    about these three buys. It has nothing to do with it.

                    MR. MARTIN: Your Honor, we’ve been through all of this on the
                    Motion to Suppress the Court has previously heard and has ruled that
                    the statement was eligible to be admitted and proper, and we feel like
                    that we’re entitled to do that.1

                    THE COURT: I remember we went through the Motion to Supress
                    [sic] and I overruled the defense motion. Now whether discussions
                    have been had prior to this very moment about the inadmissibility of
                    the statement . . .

                    MR. MOSIER: Well, Judge I said something that day, and, of
                    course, that’s – I didn’t really expect Mr. Martin to seek to introduce
                    it because – Would you like to look at it?

          1
           At the m otion to sup press, as we have previou sly set out, the trial court said, after determining that the
defendant’s statem ent w as vo luntary, “[A ]s to the utilization of tho se statem ents for purposes o f trial, I’ll have to ad dress
that prior to any trial.” Thus, the State’s characterization of the trial cou rt’s ruling as to the stateme nt appears not to
have been entirely accurate.

                                                                -8-
                  THE COURT: Well, I remember some of it.

                  MR. MOSIER: [Mr. Martin], you can probably get yours easier than
                  I can get mine.

                  THE COURT: Mr. Mosier, do you agree in this statement I’m now
                  viewing has been deemed to be admissible in the past over the
                  objection that she does cover the time period in question?

                  MR. MOSIER: From December of ‘98 to March of ‘99.

                  THE COURT: Some of which of these prior counts are included.
                  Any further argument you want to make?

                  MR. MOSIER: No, sir. What the Court ruled on was that that
                  statement was voluntarily given. I just don’t think it’s relevant to
                  what she’s on trial here for today. They talked about a lot of stuff in
                  there.2

                  THE COURT: Based upon defense’s objection as to relevancy, it
                  having already been ruled the statement was freely and voluntarily
                  given after advising her of her rights, I’m going to allow the
                  statement to be admitted today. You may proceed.

         Since the contents of the statement had not been recounted by the State’s witnesses during
the hearing on the motion to suppress, the trial court heard this statement of the defendant for the
first time as the jury also was hearing it over the defense objection:

                  Q Officer Azbill, after you arrested [the defendant] on or about
                  June the 8th of 1999 when you all went to the Lexington Police
                  Department to interview her, did you advise her of her Miranda
                  rights?

                  A     Yes, sir, I did.

                  Q And thereafter, did she subsequently voluntarily give you a
                  statement?

                  A     Yes, sir, she did.

         2
           Although the State argues on appeal that the defendant did not object at trial to the prejudicial effect of her
statem ent, we believ e that the pro ceed ings d uring this b ench conference sufficiently raised the issue, which also was
prese nted in the m otion for new trial.

                                                           -9-
               Q    What did she tell you?

               A She told me she’d been selling cocaine and methamphetamine at
               the Smokehouse from December of ‘98 through March of ‘99 and
               that she regularly sold to Kelly Clenny at the store and brought out
               some marijuana at the store every two or three days.

                    She also stated she bought her cocaine from two blacks in
               Jackson named Tyrone and Travis. She stated she didn’t know what
               their last name was, but she knew where they lived and it was near
               Jackson State college. She said she’d bought off these two guys
               approximately 50 times, paying $400 per eight ball. She stated that
               this Tyrone had a baby blue BMW and that Travis had no car, and
               both of the subjects were thought to have lived in and around Wallace
               Road, but she would meet at those new apartments near Jackson
               State.

                   She also stated she got her methamphetamine from Debbie
               who’s a cook at the Bull Market at Parker’s Crossroads. She said she
               purchased directly from Debbie five times, one gram at a time.

                    Prior to that she stated Rob Hamilton was furnishing her the
               methamphetamine and she had gotten methamphetamine from him
               approximately 15 times, a gram at a time. During this time she state
               [sic] Rob was buying methamphetamine from Marsha Bedwell.

                    She also stated her willingness to cooperate with authorities and
               admitting to selling cocaine and meth [sic] at her father’s business,
               the Smokehouse. She wanted to help authorities to catch Barbara
               Keller, a lady in Jackson. She stated Ms. Keller had got her addicted
               to cocaine and they had started smoking marijuana together. She
               stated that Keller had been busted recently in Jackson for possession
               of cocaine and was still in jail, or was not out of jail yet.

               Q Would it be clear from her statement the time frame that she had
               mentioned covered the sale in which you were involved?

               A    Yes, sir.

        This court will not reverse a trial court’s decision to admit evidence based on its relevance
unless the trial court has abused its discretion. See State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997). Abuse of discretion occurs when the “trial court applied an incorrect legal standard, or
reached a decision which is against logic or reasoning that caused an injustice to the party

                                                -10-
complaining.” State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997) (citing Ballard v. Herzke, 924
S.W.2d 652, 661 (Tenn. 1996)). Accordingly, “[a]lthough a decision made under this standard will
not be lightly reversed on appeal, the discretion of the trial court is not without limits.” State v.
Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). Here, no legal standard was applied at trial because the
trial court was misadvised as to the scope of its prior ruling.

        In assessing this issue, we first note that, during questioning, the defendant had not even been
asked if she had sold methamphetamine from the Smokehouse on the first two dates specified in the
indictment, although she had said that she had done so beginning in December 1998. At the motion
to suppress, Agent Azbill explained the general nature of the statement by saying that the defendant
was not asked about sales on specific dates because officers did not want to reveal to her the identity
of their informant.

        According to the statement, the defendant admitted her guilt as to a number of drug offenses:

                1.   “selling cocaine and methamphetamine at the Smokehouse from
                     December of ‘98 though March of ‘99”;

                2.   “regularly” selling drugs to “Kelly Clenny at the store”;

                3.   bringing “some marijuana at the store every two or three days”;

                4.   buying cocaine from Travis and Tyrone “approximately 50
                     times, paying $400 per eight ball”;

                5.   purchasing methamphetamine “from Debbie [a cook at the Bull
                     Market at Parker’s Crossroads] . . . five times, one gram at a
                     time”;

                6.   buying methamphetamine from Rob Hamilton “approximately
                     15 times, a gram at a time”; and

                7.   smoking marijuana with Barbara Keller.

        The State argues on appeal that, apparently, the entire statement was admissible to prove
“identity” and “common scheme.” We respectfully disagree that either of these late presented
theories justifies bypassing the trial court’s being allowed to consider this issue.

        First, it is unclear how “identity” was an issue at the trial. The videotape of the December
incident showed the defendant at the drive-thru window of the Smokehouse, passing a sack to the
informant and receiving money in payment. The defendant admitted that it was she at the window
but said that a diet aid, rather than illegal drugs, was in the sack. Thus, “identity” was not an issue.


                                                 -11-
       The State also argues that evidence of other drug involvement was admissible to show a
“common scheme,” an evidentiary theory which is explained in Neil P. Cohen et al., Tennessee Law
of Evidence § 4.04[12][a] (4th ed. 2000):

                    In Tennessee, three categories of “common scheme or plan
               evidence are recognized: (1) distinctive designs or “signature” crimes;
               (2) a larger, continuing plan or conspiracy; and (3) a common or
               inseparable plan or transaction, sometimes referred to as the “same
               transaction.”

         Comparing these categories with the facts of the indictments for which the defendant was
charged and the panoply of drug involvement admitted to in the defendant’s statement, we are unable
to divine any sort of “common scheme,” other than a propensity to buy, sell, and use illegal drugs.
In fact, the statement covers such a gamut of offenses, it is difficult to imagine a unifying thread
which would bind them. For instance, while it is arguable that proof as to sales of cocaine and
methamphetamine at the Smokehouse, even after that for which the defendant was charged, might
be relevant, this rationale could not be applied to much of the remainder of the statement. The vague
admission that the defendant “regularly sold to Kelly Clenny at the store” requires, to be considered
part of a “common scheme,” that the sales were of drugs and the “store” was the Smokehouse. Even
then, however, no time frame was supplied for these “sales,” or explanation as to whether they
occurred at the drive-thru window as did the charged offenses, in the parking lot, or inside the
business. Further, it is unclear how the defendant’s admission of purchases of cocaine
“approximately 50 times, paying $400 per eight ball” is relevant to the three incidents for which she
was being prosecuted. The same problem exists for the purchases of methamphetamine “from
Debbie . . . five times, one gram at a time.” In fact, the wide variety of offenses recounted in the
defendant’s statement create additional problems because they, like the charges being prosecuted,
were all drug offenses and present a law school exam-like exercise in evidentiary admissibility.

        As a result of the manner in which the defendant’s statement came before the jury, we were
denied the benefit of the trial court’s expertise in balancing the probative value of this statement
versus its prejudical effect. Even a cursory application of Tennessee Rules of Evidence 403 and 404
demonstrates the substantial evidentiary problems presented by the statement’s broad admissions
as to subsequent criminal activity. See State v. Maddox, 957 S.W.2d 547, 551-53 (Tenn. Crim. App.
1997). The prejudicial effect of much of this statement clearly outweighs its probative value, and
we cannot conclude beyond a reasonable doubt that it did not affect the verdict in this matter.

       Accordingly, we reverse the judgments of conviction and remand this matter for a new trial.
Should the defendant, following a retrial, again be convicted of both counts, the trial court should
consider whether the counts should be merged into a single conviction.

       Because of the possibility of further appellate review, however, we will consider the
defendant’s remaining issues.


                                                -12-
                           II. Admissibility of the Unedited Videotape

        The defendant argues that the trial court erred in allowing the longer videotape to be entered
into evidence because she was not given a copy of it prior to the trial, and that the failure of the State
to provide a copy violated Rule 16 of the Tennessee Rules of Criminal Procedure and Rule 32 of the
Local Rules of Practice for the Twenty-Sixth Judicial District.

        On appeal, the defendant argues that harm occurred because “the defendant and her counsel
tediously prepared a defense in this case based upon the materials that had been furnished in the
discovery process by the State.” The proper remedy, according to the defendant, is a “reversal of
[the defendant’s] conviction and the entry of a judgment of acquittal.” However, we respectfully
disagree with this argument.

        Rule 16(a)(1)(C) of the Tennessee Rules of Criminal Procedure provides as follows:

                Documents and Tangible Objects. – Upon request of the defendant,
                the State shall permit the defendant to inspect and copy or photograph
                books, papers, documents, photographs, tangible objects . . . which
                are within the possession, custody or control of the State, and which
                are material to the preparation of the defendant’s defense or are
                intended for use by the State as evidence in chief at the trial, or were
                obtained from or belong to the defendant.

Tenn. R. Crim. P. 16(a)(1)(C).

        This court has previously determined that “evidence should not be excluded except when it
is shown that a party is actually prejudiced by the failure to comply with the discovery order and that
the prejudice cannot be otherwise eradicated.” State v. Garland, 617 S.W.2d 176, 185 (Tenn. Crim.
App. 1981). Tennessee Rule of Criminal Procedure 16(d)(2) provides guidance for dealing with
claimed discovery violations:

                Failure to Comply with a Request. – If at any time during the course
                of the proceedings it is brought to the attention of the court that a
                party has failed to comply with this rule, the court may order such
                party to permit the discovery or inspection, grant a continuance, or
                prohibit the party from introducing evidence not disclosed, or it may
                enter such other order as it deems just under the circumstances. The
                court may specify the time, place, and manner of making the
                discovery and inspection and may prescribe such terms and
                conditions as are just.

Tenn. R. Crim. P. 16(d)(2). Similarly, in State v. Cadle, 634 S.W.2d 623, 625 (Tenn. Crim. App.
1982), this court reviewed the different sanctions available when Rule 16 has been violated:

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                    From a reading of [Rule 16(d)(2)], it becomes obvious that the
               sanction to be applied for non-compliance must fit the circumstances
               of the individual case. Thus, in some instances mere inspection . . .
               may serve to protect the defendant’s interests. In other situations, a
               continuance may be required to give the accused a chance to meet the
               State’s previously undisclosed evidence, or the court may be required
               to exclude the evidence altogether. The suitability of an individual
               alternative will always depend on the nature of the statement and the
               basis upon which it is being challenged.

       Here, the trial court allowed defense counsel to view the videotape and question Special
Agent Barnes about it out of the presence of the jury. The tape was then shown to the jury and
entered into evidence. At the conclusion of Barnes’s testimony, the trial court made an additional
statement as to the tape:

                So based upon what I heard and saw today, I feel that we had to
                proceed over defense objection. Plus, I want to note, under the rule,
                Rule 16, dealing with discovery, I did allow defense counsel the
                opportunity outside the presence of the jury to view the entire tape
                and question the witness about that tape before we proceeded on with
                the introduction of that tape into evidence.

        We respectfully decline to conclude that the trial court erred in this regard. The videotape
provided to the defendant showed the exchange of the small bag for cash and, with the conversation,
appears to be more inculpatory than the longer version without sound. We conclude that the trial
court resolved the dispute in a reasonable fashion. Tenn. R. Crim. P. 16(d)(2).

        This assignment is without merit.

                                  III. Sufficiency of the Evidence

        The defendant argues that there was insufficient evidence to support her conviction for the
sale and delivery of .5 grams or more of cocaine.

         Whenever a defendant raises sufficiency of the evidence on appeal, this court must determine
“whether, after viewing 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, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979). See also State
v. Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn.
Crim. App. 1992); Tenn. R. App. P. 13(e) (“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 findings by the trier of
fact of guilt beyond a reasonable doubt.”). All questions involving the credibility of witnesses, the
weight and value to be given the evidence, and all factual issues are resolved by the trier of fact. See

                                                 -14-
State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). A
jury conviction removes the presumption of innocence with which a defendant is initially cloaked
and replaces it with one of guilt, so that on appeal, a convicted defendant has the burden of
demonstrating that the evidence is insufficient. See State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

        The defendant was convicted of two counts of violating Tennessee Code Annotated section
39-17-417(c)(1) (1997), knowingly selling .5 grams or more of cocaine and knowingly delivering
.5 grams or more of cocaine. At trial, the State presented an unedited videotape showing the drug
transaction between the informant and the defendant on December 30, 1998. The videotape showed
the informant pulling up to the Smokehouse drive-thru window, handing the defendant money, and
receiving a small bag from the defendant in return. The contents of the bag were turned over to the
TBI and were found to contain 4.1 grams of cocaine.

        We have already concluded that the trial court did not err in entering the unedited videotape
into evidence. Taking into account the evidence of the unedited videotape of the December 30,
1998, drug transaction between the informant and the defendant as well as other evidence in the
record, we conclude there is more than sufficient evidence to support the defendant’s convictions
for the sale and delivery of .5 grams or more of cocaine. This issue is without merit.

                                         CONCLUSION

       Based upon the foregoing authorities and reasoning, we reverse the defendant’s convictions
and remand the matter for a new trial.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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