        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned On Briefs January 18, 2012

     FREDRICK DARNELL ALEXANDER v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                      No. 2009-A-421 J. Randall Wyatt, Jr., Judge



                   No. M2011-00591-CCA-R3-CD - Filed March 12, 2012


Appellant, Frederick Darnell Alexander, was convicted by a Davidson County jury of the sale
of less than. 5 grams of cocaine within 1000 feet of a school. As a result, he was sentenced
to twelve years in incarceration, to be served at one hundred percent. Appellant appeals the
conviction, arguing that the evidence was insufficient to support the conviction and that the
trial court erred in denying the motion to suppress Appellant’s statement to police. After a
review of the record, we conclude that the evidence, although mostly circumstantial, was
sufficient to show that Appellant sold cocaine to an undercover officer within 1000 feet of
a school. Further, Appellant not only failed to raise any issue with regard to the motion to
suppress in a motion for new trial but also failed to a provide a transcript of the hearing on
the motion to suppress. Therefore, Appellant is not entitled to relief unless there is plain
error. The record is not clear as to what happened in the trial court because of the lack of a
transcript of the suppression hearing. Therefore, we will not review the issue for plain error.
Accordingly, the judgment of the trial court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and C AMILLE R. M CM ULLEN, JJ., joined.

Caesar Cirigliano, Nashville, Tennessee, for the appellant, Fredrick Darnell Alexander.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Andrea Green, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                     Factual Background

       As part of the Operation Safer Streets Assignment, Officer Corey Sanderson was
working undercover in the area of Lincoln and Claiborne Streets in Nashville on December
13, 2008. Officer Sanderson was posing as a potential purchaser of cocaine. Officer
Sanderson saw Richard Smith standing on the corner. Mr. Smith asked the officer if he
needed anything. Officer Sanderson asked for a “thirty,” street slang for thirty dollars worth
of cocaine. Mr. Smith got into Officer Sanderson’s car and directed the officer to the
Sudekum housing project on First Avenue. Once they arrived, the officer gave Mr. Smith
thirty dollars in currency.1 Additionally, Mr. Smith left his identification with Officer
Sanderson as a gesture of good faith.

       Officer Sanderson communicated his location to two other detectives that were
involved in the controlled buy operation, Lieutenant William Mackall and Detective Michael
Galluzi.

       Lieutenant MacKall was stationed nearby. He observed Mr. Smith emerge from an
open area in between two buildings in the housing project area and talk to a black female.
Mr. Smith and the female crossed the street to another area where Appellant was standing.
They talked for a few minutes before the female left the area. Lieutenant Mackall witnessed
what appeared to be an exchange between Mr. Smith and Appellant, seeing their hands touch.
He could not see what was exchanged. Mr. Smith then returned to Officer Sanderson’s car,
where he delivered a rock-like substance that field tested positive for the presence of cocaine.
Mr. Smith was arrested. Twenty dollars of the cash was recovered from Mr. Smith. The
exchange occurred within 1,000 feet of Cameron Middle School.

        Appellant was taken into custody by Lieutenant Mackall and Detective Galluzzi. The
ten dollar bill that Officer Sanderson gave to Mr. Smith was recovered from Appellant’s
person. Appellant was orally advised of his Miranda rights. When Appellant was asked if
there were any other contraband or dangerous items on his person, he replied that he had sold
all of the other cocaine he had purchased that day.

        Appellant was indicted by the Davidson County Grand Jury, along with Mr. Smith,
for the sale of .5 grams or less of cocaine within 1,000 feet of a school. After hearing the
proof, the jury convicted Appellant of the offense.

       1
           The money was marked and photocopied by police prior to the purchase.

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        Appellant was sentenced by the trial court as a Range II, multiple offender to twelve
years in incarceration, to be served at 100%. Appellant filed a timely motion for new trial,
in which he argued that the evidence was insufficient and the trial court failed to act as the
thirteenth juror. Appellant later amended the motion for new trial to add an argument about
the trial court’s failure to instruct the jurors to avoid researching the case on the internet.

       The trial court denied the motion for new trial after a hearing. Appellant has
appealed. On appeal, Appellant continues to argue that the evidence is insufficient to support
the conviction and that the trial court erred by denying the motion to suppress.

                                            Analysis

                                      Motion to Suppress

       On appeal, Appellant argues that the trial court erred in denying Appellant’s motion
to suppress “coercive” statements taken by police. Specifically, Appellant argues that he was
“held at gun point” and “pulled out of his car with excessive force in a high crime area
[which] created a stressful situation to him.” The State insists that the trial court properly
denied the motion because there was no doubt that Appellant was in custody when he made
the incriminating statements.

       Although not raised by either party, we note that Appellant did not raise any issue with
regard to the denial of the motion to suppress in a written motion for new trial, as required
by Tennessee Rule of Appellate Procedure 3(e). That rule provides, in pertinent part:

       [I]n all cases tried by a jury, no issue presented for review shall be predicated
       upon error in the admission or exclusion of evidence, jury instructions granted
       or refused, misconduct of jurors, parties or counsel, or other action committed
       or occurring during the trial of the case, or other ground upon which a new
       trial is sought, unless the same was specifically stated in a motion for a new
       trial; otherwise such issues will be treated as waived.

Tenn. R. App. P. 3(e).

         Additionally, “[a] motion for a new trial shall be in writing or, if made orally in open
court, be reduced to writing, within thirty days of the date the order of sentence is entered.
The court shall liberally grant motions to amend the motion for new trial until the day of the
hearing on the motion for a new trial.” Tenn. R. Crim. P. 33(b) (emphasis added). Further,
a trial court loses jurisdiction with the filing of a notice of appeal. See State v. Pendergrass,
937 S.W.2d 834, 837 (Tenn. 1996). In the case herein, Appellant raised the issue for the first

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time on appeal. Therefore, we are precluded from considering the issue raised by Appellant
on appeal unless it rises to the level of plain error.

       In order to review an issue under the plain error doctrine, five factors must be present:
(1) the record must clearly establish what occurred in the trial court; (2) a clear and
unequivocal rule of law must have been breached; (3) a substantial right of the defendant
must have been adversely affected; (4) the accused did not waive the issue for tactical
reasons; and (5) consideration of the error is necessary to do substantial justice. See State
v. Smith, 24 S.W.3d 274, 283 (Tenn. 2000) (adopting this Court’s plain error test set forth in
State v. Adkisson, 899 S.W.2d 626, 641 (Tenn. Crim. App. 1994)); see also Tenn. R. Crim.
P. 36(b).

        Appellant complains that the trial court improperly denied the motion to suppress.
However, Appellant failed to include the transcript from the hearing on the motion to
suppress in the record on appeal. It is the duty of Appellant to include a complete record on
appeal. See State v. Troutman, 979 S.W.2d 271, 274 (Tenn. 1998) (holding that failure to
include trial transcript on appeal waived challenge to sentence); State v. Ballard, 855 S.W.2d
557, 560-61 (Tenn. 1993) (holding failure to include transcript precludes appellate review);
State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991) (holding trial court’s ruling
presumed correct in absence of an adequate record on appeal). Appellant’s failure to include
a transcript of the hearing on the motion to suppress prevents this Court from determining
that the record clearly establishes what occurred in the trial court. Thus, we will not review
this issue for plain error. Appellant is not entitled to relief.

                                 Sufficiency of the Evidence

       Appellant challenges the sufficiency of the evidence on appeal. Specifically, he
argues that the testimony showed that he was “not the only person who could have sold the
drugs to Mr. Smith and that prior to the takedown signal being given other persons made
contact with Mr. Smith who were never apprehended by the police.” The State, on the other
hand, insists that the presence of other suspects does not render the evidence insufficient.

       When a defendant challenges the sufficiency of the evidence, this Court is obliged to
review that claim according to certain well-settled principles. A verdict of guilty, rendered
by a jury and “approved by the trial judge, accredits the testimony of the” State’s witnesses
and resolves all conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d
253, 259 (Tenn. 1994); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the
accused is originally cloaked with a presumption of innocence, the jury verdict of guilty
removes this presumption “and replaces it with one of guilt.” State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof rests with the defendant to

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demonstrate the insufficiency of the convicting evidence. Id. The relevant question the
reviewing court must answer is whether any rational trier of fact could have found the
accused guilty of every element of the offense beyond a reasonable doubt. See Tenn. R. App.
P. 13(e); Harris, 839 S .W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences
that may be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is
precluded from re-weighing or reconsidering the evidence when evaluating the convicting
proof. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Moreover, we may not substitute our own
“inferences for those drawn by the trier of fact from circumstantial evidence.” Matthews,
805 S.W.2d at 779. Further, questions concerning the credibility of the witnesses and the
weight and value to be given to evidence, as well as all factual issues raised by such
evidence, are resolved by the trier of fact and not the appellate courts. State v. Pruett, 788
S.W.2d 559, 561 (Tenn. 1990). “The standard of review ‘is the same whether the conviction
is based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

        Appellant was convicted of the sale of cocaine that weighed .5 grams or less, a
violation of Tennessee Code Annotated section 39-17-417(a)(3), which makes it a crime to
knowingly “possess a controlled substance with intent to manufacture, deliver or sell the
controlled substance.” A violation of Tennessee Code Annotated section 39-17-417(a)(4)
is a class C felony if the amount of the cocaine possessed is less than .5 grams. T.C.A. §
39-17-417(c)(2)(A). An enhanced criminal penalty is imposed if the drug sale occurs within
1000 feet of a drug-free school zone. T.C.A. § 39-17-432. Specifically, if a violation of
Tennessee Code Annotated section 39-17-417 occurs “within one thousand feet (1000’) of
the real property that comprises a public or private elementary school, middle school,
secondary school, [or] preschool . . . [the offender] shall be punished one classification
higher than is provided . . . .”

        In the case herein, there was testimony from several officers that the transaction took
place near the Sudekum housing project on First Avenue. Officers watched Appellant
engage in an apparent hand-to-hand exchange with Mr. Smith. The exchange took place
after Mr. Smith took delivery of cash from the officer. Mr. Smith delivered the cocaine to
the officer after meeting with Appellant. While the exact location of the arrest was not
pinpointed to the foot, the testimony indicated that the arrest took place near within 1000 feet
of Cameron Middle School. Mr. Smith and Appellant were in possession of cash that was
supplied by the officer at the time of their arrest. Appellant, after his arrest, admitted to
selling all of the cocaine he had that day. This evidence was heard and assessed by the jury,
and that panel determined that the State proved beyond a reasonable doubt that Appellant
sold the cocaine and that the transaction occurred within 1000 feet of a school. The evidence

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was sufficient for a rational trier of fact to make this determination. Appellant is not entitled
to relief on this issue.

                                          Conclusion

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


                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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