                                                                                         01/21/2020
             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                       Assigned on Briefs April 23, 2019

             STATE OF TENNESSEE v. RASHAN LATEEF JORDAN

                  Appeal from the Criminal Court for Knox County
                       No. 100496 Bobby R. McGee, Judge
                     ___________________________________

                           No. E2018-00471-CCA-R3-CD
                       ___________________________________


Defendant, Rashan Lateef Jordan, appeals from his conviction for the sale of more than
0.5 grams of cocaine within one thousand feet of a childcare agency. Defendant was
sentenced to 15 years for his conviction. On appeal, Defendant contends: (1) that the trial
court erred by not granting his motion to dismiss for lack of a speedy trial; (2) the jury
instructions were inadequate and failed to include a lesser included offense; and (3) the
jury instructions were confusing to the jury and in attempting to make clarifications, the
trial court unduly influenced the jurors. Having reviewed the parties’ briefs and the
entire 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 ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Hoai R. Robinette, Knoxville, Tennessee, for the appellant, Rashan Lateef Jordan.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Sara Keith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       Following a jury trial, Defendant was convicted in count one of the sale of more
than 0.5 grams of cocaine in a drug-free zone. The trial court dismissed the jury before it
announced its verdict in count two, reasoning that count two would merge into count one.
A judgment was entered reflecting that Defendant was found guilty of delivery of more
than 0.5 grams of cocaine in a drug-free zone; however, the trial court subsequently
entered a corrected judgment, dismissing count two. The trial court sentenced Defendant
to 15 years for his sale of cocaine conviction.
Procedural history

Motion to Dismiss

       The parties agree that Defendant was originally charged by presentment on May
18, 2010; however, the presentment is not included in the record on appeal. A capias was
issued for Defendant’s arrest on the same date. The parties also agree that Defendant was
arrested on an unrelated charge in Georgia and that he was transferred to the custody of
the Tennessee Department of Correction (TDOC) sometime at the end of 2010 as a result
of a parole violation issued in May, 2010. Defendant became aware of the charges in this
case at a parole violation hearing on December 3, 2010. In November, 2011, Defendant
filed a motion for speedy trial, but that motion is also not included in the record.
Defendant was arraigned on January 1, 2012.

       On July 18, 2012, Defendant filed a motion to dismiss, claiming that his right to a
speedy trial had been violated. At a hearing on Defendant’s motion, Defendant testified
that he was never arrested on the charges in the presentment. He testified that he was
arrested for an unrelated parole violation, and he only learned about the presentment
during the parole revocation proceedings. Defendant testified that he had not been served
with anything indicating that there were pending charges against him in Knox County.
Following a parole revocation hearing, Defendant asked family members to call the Knox
County Sheriff’s Office to ascertain the status of the charges. He also testified that he
wrote a letter to the clerk “at the Knox County Jail,” and he filed a motion for speedy trial
and requested a bill of particulars to determine the status of the case. Defendant testified
that his family members retained counsel to inquire about the charges, but the attorney
was told there were “no charges for [Defendant] in Knox County.”

        Defendant testified that he was with Andrew Howell, Rod Strickland, and
Deshawn O’Keefe on the day of the offense. He testified that Mr. O’Keefe died in
January, 2012. He claimed that Mr. O’Keefe “had very pertinent information pertaining
to this case.” Defendant testified that on the date of the offense, they were at an
establishment called “Game Over.” Defendant and Mr. O’Keefe wanted “some powder”
to consume for themselves. At around 7:50 p.m., Defendant called Nathan Adebayo, the
State’s confidential informant, to set up a drug purchase. When Mr. Adebayo arrived,
Defendant, Mr. O’Keefe, and Mr. Howell walked outside and spoke with him. Defendant
and Mr. Adebayo then left the group and got into Defendant’s car. Defendant and Mr.
Adebayo were the only people in the vehicle during the transaction. Defendant testified
that Mr. Adebayo pulled drugs out of his underwear, and Defendant “asked him for a 20
for [his] face.” Mr. Adebayo tore off a piece of a plastic bag and filled it with cocaine for
Defendant. Defendant and Mr. O’Keefe consumed the cocaine outside of Game Over.


                                            -2-
      Defendant testified that Mr. Howell died “in January.” Mr. Howell was not
involved in the drug transaction, but he “was hanging out with” Defendant and Mr.
O’Keefe. Defendant testified that he and Mr. O’Keefe were the only ones who consumed
cocaine, but there were “several people” outside with them, including Mr. Howell.

       The State argued that Defendant did not suffer any prejudice from the delay. The
State acknowledged that Defendant was not served with the presentment until January,
2012, but the State argued that Defendant was aware of the charges in December, 2010.
Additionally, the State argued that the delay did not cause Defendant’s incarceration
because he was already incarcerated on unrelated charges.

       Following the hearing, the trial court denied Defendant’s motion. On October 30,
2012, the Knox County Grand Jury issued a superseding indictment charging Defendant
with one count of sale of more than 0.5 grams of cocaine in a drug-free zone and one
count of delivery of more than 0.5 grams of cocaine in a drug-free zone.

        Defendant filed a second motion to dismiss on February 14, 2013, again alleging a
violation of his right to a speedy trial. Defendant attached to his motion the death
certificates of two potential witnesses, Andrew Howell, who died on April 21, 2012, and
Deshawn O’Keefe, who died on January 2, 2012. The trial court conducted a hearing on
the motion on December 2, 2013. At the outset of the hearing, the trial court noted that it
had “previously considered and made findings with regard to the length of the delay and
the defendant’s assertion of the right and the prejudice suffered.” The court noted,
however, that it “ha[d] not made adequate findings with regard to the reasons for the
delay.”

       Officer John Holmes, of the Knoxville Police Department, testified that he was
involved in a controlled buy of cocaine between Defendant and the confidential
informant on March 25, 2010. Officer Holmes testified that the Knox County Grand Jury
issued a presentment charging Defendant with the sale and delivery of cocaine on May
18, 2010. Shortly thereafter, Officer Holmes learned that Defendant had fled to Georgia,
and a violation of parole had been filed against him. On July 5, 2010, Officer Holmes
learned that Defendant was suspected to be involved in a robbery and shooting in Macon,
Georgia. Defendant was charged in relation to that event, but the charges were later
dismissed. Defendant was hospitalized in Georgia for gunshot wounds he sustained
during the incident.

       Officer Holmes learned that Defendant was in TDOC custody “sometime during
December” 2010. Officer Holmes testified that Defendant was made aware of the
charges in this case at a parole violation hearing on December 3, 2010. On March 15,
2011, Officer Homes attended a parole violation hearing at which Defendant was
informed via teleconference of the charges against him. Officer Holmes testified that he
explained the charges to Defendant. Officer Holmes assumed Defendant had been served

                                           -3-
after the December, 2010 parole violation hearing. Officer Holmes learned that
Defendant had never been served with the presentment when Defendant was finally
arraigned in January, 2012. Officer Holmes testified “[i]t’s not the typical response” for
the charging officer to ensure that the presentment is served upon a defendant.

        Following a hearing, the trial court denied the motion. The trial court found that
the State was negligent in not having Defendant arraigned sooner, but that any prejudice
as a result of this negligence was “fairly minor.” The trial court stated:

        [T]he only actual prejudice that’s been offered is the death of two of the
        potential witnesses.

        The Court has found before and does still find that these were not
        witnesses to the crime itself. The – what’s been presented to this Court
        thus far is this: They were – the defendant had two friends with him that
        day. They had some conversation about drugs and the defendant called
        someone to set up some sort of a drug deal.

        Of course, it’s going to be his theory that he was buying and not selling.
        And that will be the crux of the case. And neither of the defendant’s
        witnesses were present to see what happened and could not ever have
        testified to what actually went on in the car when the defendant and the
        seller, or the buyer, depending on who you believe here – they could
        never testify as to what actually happened.

Evidence presented at trial

        On March 25, 2010, members of the Repeat Offender Squad of the Knoxville
Police Department used a confidential informant to conduct a controlled purchase of
cocaine at an establishment known as Chubby’s in Knoxville, Tennessee. The
confidential informant (CI) was identified by Officer John Holmes as Nathaniel Adebayo.
Mr. Adebayo was acting as a CI following an arrest for drug possession as part of a deal
for a less severe sentence. In talking with Mr. Adebayo, Officer Holmes “threw out some
names” of individuals suspected of dealing drugs in town to see if Mr. Adebayo knew
any of the individuals. Defendant’s name was one of these names, and Mr. Adebayo
stated that he knew Defendant.

       On March 25, Officer Holmes monitored communication between Mr. Adebayo
and Defendant. Defendant called Mr. Adebayo earlier that day, but Mr. Adebayo had not
answered. Mr. Adebayo called Defendant back, and Defendant told him to meet at “the
spot,” which was agreed upon as Chubby’s. Officer Holmes supplied Mr. Adebayo with
a recording device and $1,100 in cash, which was photographed with serial numbers
visible. Officer Holmes searched both Mr. Adebayo’s person and his car and found

                                          -4-
nothing suspect. Mr. Adebayo drove his personal vehicle to Chubby’s while officers
monitored from a nearby intersection. The officers could not see the transaction from
their vantage point, but monitored through the recording device.

       Mr. Adebayo exited his vehicle at Chubby’s and walked inside, asking an
unidentified individual where Defendant was. Mr. Adebayo and Defendant met in the
restaurant and walked outside, getting into Defendant’s car, which was a rental. Mr.
Adebayo testified that Defendant provided an ounce of powdered cocaine in exchange for
$1,100. On the recording, Defendant told Mr. Adebayo to “give me a piece of that for
my face.” Mr. Adebayo testified that he allowed Defendant to take $20 worth of cocaine
from the bag he had just purchased. Defendant refunded Mr. Adebayo $20. Defendant
then consumed the cocaine in the car. The transaction took place within 1,000 feet of
Abundant Love Childcare, a licensed childcare facility at the time of the offense.

       Following the transaction, Mr. Adebayo returned to the meeting point and gave the
officers a bag containing white powder, later confirmed by Tennessee Bureau of
Investigation to be 21.0 grams of cocaine, and two $10 bills. The serial numbers of the
two $10 bills matched the serial numbers from the cash given to Mr. Adebayo prior to the
transaction.

        Defendant testified that he was hanging out with Deshawn O’Keefe and Andrew
Howell on March 25, 2010. The three of them discussed buying powder cocaine for
personal consumption. Defendant claimed that he and Mr. O’Keefe agreed to go “half-
in” on twenty dollars of cocaine. According to Defendant, he did not sell cocaine to Mr.
Adebayo, but rather Mr. Adebayo sold cocaine to Defendant. Defendant stated that when
Mr. Adebayo entered Defendant’s vehicle, Mr. Adebayo pulled an ounce of powdered
cocaine out of his underwear and sold $20 worth of cocaine to Defendant. Defendant
testified he then exited the vehicle and consumed the cocaine outside of Chubby’s, giving
half to Mr. O’Keefe. Defendant claimed that both Mr. O’Keefe and Mr. Howell could
confirm he was buying $20 worth of cocaine from Mr. Adebayo for personal use rather
than selling an ounce of cocaine to Mr. Adebayo.

Analysis

Speedy trial
       Defendant asserts that he was denied the right to a speedy trial. Defendant argues
that the 20-month delay between the return of the presentment on May 18, 2010, and his
arraignment on January 6, 2012, was excessive; that the delay was intentional by the
State in order to gain a tactical advantage; and that he was prejudiced by the delay. The
State responds that the trial court properly denied Defendant’s motions.



                                          -5-
        The right to a speedy trial is guaranteed to criminal defendants by the Sixth
Amendment of the United States Constitution. In Tennessee, this right is established by
both Article I, Section 9 of the Tennessee Constitution and Tennessee Code Annotated
§40-14-101. The United States Supreme Court identified three interests the right to a
speedy trial is intended to protect in Barker v. Wingo: (1) the prevention of oppressive
pre-trial incarceration; (2) the minimization of anxiety and concern of the accused; and
(3) limiting the possible impairment of the defense. 407 U.S. 514, 530 (1972). In
Doggett v. United States, the Supreme Court further determined that of these forms of
prejudice, “the most serious is the last, because of the inability of a defendant to prepare
his case skews the fairness of the entire system.” 505 U.S. 647, 654 (1992).

       In determining whether a criminal defendant’s right to a speedy trial has been
violated, the presence of a delay is not determinative of prejudice. Under Barker, four
factors are to be balanced in a speedy trial inquiry in light of the individual case and
circumstances: (1) the length of the delay, (2) the reasons for the delay, (3) the assertion
of the right, and (4) the prejudice to the defendant in light of the facts and circumstances
of the particular case. State v. Patrick Lynn Crippen, No. E2011-01242-CCA-R3-CD,
2012 WL 5397109 at *3 (Tenn. Crim. App. 2012) (quoting Barker, 407 U.S. 530). On
appeal, the trial court’s decision is reviewed for abuse of discretion. Id. (quoting State v.
Hudgins, 188 S.W.3d 663, 667 (Tenn. Crim. App. 2005)).

        In the case sub judice, the State concedes that a twenty-month-long delay is
sufficient to trigger a speedy trial inquiry, but not long enough on its own to prove
prejudice. In State v. Matthew Melton Jackson, this court determined a delay of three
years between indictment and Defendant’s arraignment was not necessarily unreasonable.
No. M2005-01374-CCA-R3-CD, 2006 WL 1896350, at *3 (Tenn. Crim. App. July 7,
2006), perm. app. denied (Tenn. Nov. 13, 2006). The State further asserts that Defendant
was not improperly incarcerated during the delay because he was already in TDOC
custody due to a separate parole violation. Additionally, Defendant was released on bail
prior to trial. Therefore, Defendant was not subject to oppressive pre-trial incarceration.

       The trial court determined the reason for the delay was the State’s “ordinary
bureaucratic” negligence. The trial court found no evidence that the delay was meant to
gain a tactical advantage over Defendant. Defendant contends the delay was intentional.
He points to the testimony by Officer Holmes at trial that he “didn’t do anything” to
expedite service or arraignment of Defendant. The trial court found, however, that is not
the charging officer’s responsibility. Defendant asserts in his brief that the delay “can
only be attributed to [the State].” However, Defendant went to Georgia, where he
remained for months after being charged.

       Defendant also contends that the State attempted to gain a tactical advantage over
him by delaying his arraignment to deny him the opportunity to have his sentence in this
case run concurrently with his sentence from a prior conviction. However, as the State

                                            -6-
points out, Defendant was ineligible for concurrent sentencing because he committed the
offense on trial while released on parole from his prior conviction. There is nothing in
the record to suggest the State aimed to deny Defendant of a sentencing option for which
he was eligible.

       As for the third Barker factor, the trial court found that Defendant properly
asserted his right to a speedy trial. The third factor is not at issue on appeal.

        Defendant asserts that he was prejudiced by the delay because his ability to
prepare a defense was hindered by the deaths of two of his key witnesses. Defendant
argues that those witnesses could have corroborated his version of the exchange between
himself and Mr. Adebayo, wherein he bought cocaine, rather than sold cocaine, for his
and Mr. O’Keefe’s personal use. However, neither Mr. O’Keefe nor Mr. Howell were
present for the interaction between Defendant and Mr. Adebayo. Their testimony would
have been merely cumulative to Defendant’s. The deaths of those potential witnesses did
not adversely affect Defendant’s ability to present his defense. Further, there is no
evidence that an agreement between Defendant and Mr. O’Keefe to split $20 worth of
cocaine disproves the sale by Defendant to Mr. Adebayo. The State presented proof at
trial that Defendant sold an ounce of cocaine to Mr. Adebayo and then bought back $20
worth for his personal consumption. The $20 (consisting of two $10 bills) in Mr.
Adebayo’s possession when he returned to the officers following the transaction with
Defendant had serial numbers that matched serial numbers of two $10 bills provided by
the officers just prior to the transaction. Defendant’s testimony and his assertions on
appeal do not address what Mr. O’Keefe or Mr. Howell could explain as to how
Defendant had two $10 bills in his possession prior to meeting with Mr. Adebayo, when
those two $10 bills had been given to Mr. Adebayo by the officers prior to the transaction
inside Defendant’s vehicle.

        We conclude that the trial court did not abuse its discretion in denying
Defendant’s motions to dismiss for violation of a speedy trial. Defendant is not entitled
to relief on this issue.

Lesser-included offense
       Defendant asserts on appeal that the trial court erred by not instructing the jury
that the sale of more than 0.5 grams of cocaine was a lesser-included offense of the sale
of more than 0.5 grams of cocaine in a drug-free zone. The State contends that the sale of
more than 0.5 grams of cocaine is not a lesser-included offense of the sale of the same
amount in a drug-free zone, because the drug-free zone statute, T.C.A. § 39-17-432, sets
forth a sentencing enhancement for certain drug offenses. Its application does not create
a greater offense that would render the sale of a drug outside of a drug-free zone a lesser-
included offense. We agree with the State.


                                           -7-
      An offense is a lesser-included offense if:

        (a) all of its statutory elements are included within the statutory elements
        of the offense charged; or

        (b) it fails to meet the definition in part (a) only in the respect that it
        contains a statutory element or elements establishing

              (1) a different mental state indicating a lesser kind of culpability;
              and/or

              (2) a less serious harm or risk of harm to the same person, property
              or public interest; or

        (c) it consists of:

              (1) facilitation of the offense charged or of an offense that
              otherwise meets the definition of lesser-included offense in part (a)
              or (b); or

              (2) an attempt to commit the offense charged or an offense that
              otherwise meets the definition of lesser-included offense in part (a)
              or (b); or

              (3) solicitation to commit the offense charged or an offense that
              otherwise meets the definition of lesser-included offense in part (a)
              or (b).

State v. Burns, 6 S.W.3d 453, 466-67 (Tenn. 1999).

      Tennessee Code Annotated section 39-17-432 provides in part:

        (a) It is the intent of this section to create drug-free zones for the
        purpose of providing vulnerable persons in this state an environment in
        which they can learn, play and enjoy themselves without the distractions
        and danger that are incident to the occurrence of illegal drug activities.
        The enhanced and mandatory minimum sentences required by this
        section for drug offenses occurring in a drug-free zone are necessary to
        serve as a deterrent to such unacceptable conduct.

        (b)(1) A violation of § 39-17-417, or a conspiracy to violate the section,
        that occurs on the grounds of facilities of any school or within one
        thousand feet (1,000’) of the real property that comprises a public or

                                           -8-
        private elementary school, middle school, secondary school, preschool,
        child care agency, or public library, recreational center or park shall be
        punished one (1) classification higher than is provided in § 39-17-
        417(b)-(i) for such violation.

T.C.A. § 39-17-432(a)-(b)(1). Defendants who are sentenced under subsection (b) of the
statute “shall be required to serve at least the minimum sentence for [their] appropriate
range of sentence.” Id. § 39-17-432(c).

       In State v. Smith, this court adopted the view that, “Tenn. Code Ann. § 39-17-432
does not itself criminalize manufacturing, delivering, selling, or possessing a controlled
substance; it merely imposes a harsher penalty for violations of Tenn. Code Ann. § 39-
17-417 occurring within a school zone.” State v. Smith, 48 S.W.3d 159, 167-68 (Tenn.
Crim. App. 2000) (citing State v. Silva-Baltazar, 886 P.2d 138, 142 (Wash. 1994).
Defendant is not entitled to relief on this issue.

        While we agree with the State that sale or delivery of cocaine (of any weight) is
not a lesser included offense of sale or delivery of cocaine (of any weight) within 1,000
feet of a child care agency, we note three parts of the written jury instructions which are
an exhibit in the record. First, the written instructions (the transcript of the jury
instructions is not in the record) provided that sale or delivery of cocaine less than 0.5
grams is a lesser included offense of sale or delivery of more than 0.5 grams of cocaine
within 1,000 feet of a child care agency.

       Also, the jury verdict form specifically states that sale or delivery of more than 0.5
grams of cocaine is a lesser included offense of sale or delivery of more than 0.5 grams
of cocaine within 1,000 feet of a child care agency. There is nothing in the record
indicating that the State objected to these provisions in the jury instructions or the verdict
forms, despite the fact the State on appeal asserts that sale or delivery of any amount of
cocaine in this case is not a lesser included offense of sale or delivery of any amount of
cocaine within 1,000 feet of a child care agency.

       Finally, the trial court’s written jury instructions regarding the elements of the
indicted offenses charged the jury in accordance with the State’s position on the issue in
this appeal. For the jury to convict Defendant of the indicted charge, the jury was
instructed that the State must prove beyond a reasonable doubt three elements,
paraphrased herein:

       (1) Defendant sold or delivered more than 0.5 grams of cocaine;

       (2) Defendant acted knowingly in doing so; and

       (3) The sale or delivery occurred within 1,000 feet of a child care agency.



                                            -9-
      While the drug free zone provision only imposes a harsher punishment, it still
must be proved beyond a reasonable doubt to the jury. See Blakely v. Washington, 542
U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403 (2004) (proof of any fact used to
enhance a sentence, other than a prior conviction, must be proven to the jury beyond a
reasonable doubt.)

       Assuming the trial court verbally conveyed what is in the written instructions, the
wording of the “elements” of the offenses complies with Tennessee Pattern Instructions –
Criminal 31.01. This instruction properly informs the jury that it must find a defendant
guilty of each element beyond a reasonable doubt. As implied in this instruction and
considered with Tennessee Pattern Instruction – Criminal 43.06, if a jury finds as to any
essential element the State has failed to prove the element beyond a reasonable doubt, or
the jury has a reasonable doubt that defendant committed what is alleged in the element,
the jury must acquit as to that charge. Even though case law is well settled that the “drug
free zone” statutory provision is not an element of the crime but merely a sentencing
enhancement, the current language of the pattern jury instruction arguably would allow a
defendant to argue to the jury that the State’s failure to prove the “drug free zone”
element beyond a reasonable doubt requires a verdict of not guilty.

Jury instructions

        Defendant asserts on appeal the jury instruction and verdict forms were confusing,
and in attempting to clarify, the trial court unduly influenced the jury to render a guilty
verdict to the crime charged instead of a lesser-included offense. The State responds that
Defendant has waived this issue by failing to include in the record on appeal a transcript
of the trial court’s instructions to the jury. The State further asserts that, regardless of
waiver, the jury instructions fairly and accurately set forth the applicable law, and the
trial court did not improperly influence the jury. We agree the issue is waived.

        Failure to include a transcript of the jury instructions waives a challenge to the
jury instructions. Rule 24(b) of the Tennessee Rules of Appellate Procedure provides
that “the appellant shall have prepared a transcript of such part of the evidence or
proceedings as is necessary to convey a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” See also Thompson
v. State, 958 S.W.2d 156, 172 (Tenn. Crim. App. 1997). The record in this case contains
a copy of the jury’s verdict form and the written instructions provided to the jury by the
trial court. Without a transcript of the trial court’s oral instructions to the jury, however,
it is impossible to discern whether the written instructions conform to the instructions that
were read to the jury. See State v. Marcus Anderson, No. W2011-00139-CCA-R3-CD,
2012 WL 3871409, at *2 (Tenn. Crim. App. Sept. 5, 2012). We agree with the State that
Defendant has waived any challenge to the jury instructions by failing to include a
transcript of the jury instructions.



                                            - 10 -
       Regarding Defendant’s challenge to the jury verdict forms, the record shows that
the jury convicted Defendant in count one of “Sale of a Controlled Substance” and
affixed a fine of $160,000. Below the jury’s verdict of guilty of the offense of “Sale of a
Controlled Substance,” the verdict form for count one provides:

        IF YOU FIND THE DEFENDANT GUILTY OF A GREATER
        OFFENSE, YOU DO NOT NEED TO CONSIDER ANY OF THE
        FOLLOWING LESSER INCLUDED OFFENSES:

        . . . . Sale and/or Delivery of Cocaine less than .5 grams [w]ithin 1,000
        feet of a Child Care Agency, a lesser[-]included offense.

        ....

        . . . . “Sale and/or Delivery of Cocaine less than .5 grams, a lesser[-]
        included offense.

        ....

        . . . . “Sale and/or Delivery of Cocaine More than .5 grams, a lesser[-]
        included offense.

        ....

        . . . . “Simple Possession, a lesser[-]included offense.”

        ....

        . . . . “Casual Exchange, a lesser[-]included offense.”

       The trial court attempted to clarify the jury’s verdict:

        THE COURT: Ladies and gentlemen of the jury, I need you to clarify a
        point. The way we structured the guilty – I mean the plea form – the
        verdict form, you were given the opportunity to make findings that the
        defendant was guilty of delivery of cocaine or sale of cocaine in an
        amount less than .5 grams, and you were given the chance to make a
        finding or find him guilty of sale or delivery of cocaine within, or
        outside, of 1,000 feet of a childcare agency.

        Based on your verdict – based on the fact that you found him guilty of
        the greater offense and not of any of the lesser-includeds, this court is
        taking your – your verdict to mean that you are finding the defendant

                                            - 11 -
        guilty of sale of cocaine in an amount greater than .5 grams in a
        childcare zone.

        Mr. [jury foreperson], is that – is that what the jury found the defendant
        guilty of?

        [Jury foreperson]: Yes.

        All twelve jurors raised their hands in agreement when asked if they agreed with
the verdict. Noting that the verdict form did not state that the jury found Defendant
guilty of sale of more than 0.5 grams of cocaine within a drug-free zone, the State
requested a new verdict form. The prosecutor stated, “it has them finding him guilty of
sale of a controlled substance and showing that the lesser-included is the sale of less than
– but it does not actually address the drug-free – or the drug-free zone.” The prosecutor
stated, “[i]t’s just sale of a controlled substance.” Defense counsel responded, “[i]t’s on
the record, Your Honor.” The trial court then dismissed the jury.

        Defendant asserts that the trial court improperly influenced the jury when it asked
the jury to clarify its verdict. Defendant claims that in the presence of confusion, the trial
judge was required to send the jury back to continue deliberation and return to announce
its verdict again. However, Defendant did not make any objection at the time of
clarification. Also, Defendant did not ask the trial court to have the jury return to the jury
room for further deliberations. This issue is waived. Tenn. R. App. P. 36(a) (“Nothing
in this rule shall be construed as requiring relief be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify
the harmful effect of an error.”). Defendant is not entitled to relief on this issue.

                                      CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.

                                    ____________________________________________
                                    THOMAS T. WOODALL, JUDGE




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