         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   October 4, 2005 Session

         STATE OF TENNESSEE v. BERNARD MIGUEL WALLACE

                  Direct Appeal from the Circuit Court for Hardin County
                          No. 8292    C. Creed McGinley, Judge



                   No. W2004-02124-CCA-R3-CD - Filed January 3, 2006


The defendant, Bernard Miguel Wallace, was convicted by a Hardin County jury of the sale of under
.5 grams of a Schedule II controlled substance, cocaine, a Class C felony. He was sentenced as a
Range II, multiple offender to nine years in the Department of Correction and fined $2000. On
appeal, he argues: (1) the evidence was insufficient to support his conviction; and (2) his sentence
is illegal pursuant to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). Following our
review, we affirm the judgment of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Curtis F. Hopper, Savannah, Tennessee, for the appellant, Bernard Miguel Wallace.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
G. Robert Radford, District Attorney General; and John W. Overton, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

        The defendant’s conviction stems from a July 10, 2003, controlled drug transaction with a
confidential informant who was working undercover with law enforcement officials. Sergeant Tim
Kelley of the Twenty-Fourth Judicial Drug Task Force testified that Investigator Terry Dicus of the
Hardin County Sheriff’s Department contacted him about an informant, William Arnold, who was
willing to “do some narcotics buys for” the task force. Kelley met with Dicus and Arnold at his
office, where they decided the informant would try to purchase drugs from the defendant. Asked
how the defendant was selected, Kelley said he believed the informant and Dicus made that decision.
The officer said that prior to the drug transaction, he “searched Mr. Arnold, searched the vehicle,
placed a body wire on him and gave him some money that was marked.”1 The officers and the
informant then proceeded to the defendant’s residence where the officers watched from their car as
the informant entered. Kelley said he was able to both monitor and record the informant’s
conversation with the defendant “[t]hrough the body wire” the informant was wearing. He explained
that he recognized the defendant’s voice because he had “had several dealings with” the defendant.
Kelley initially heard the defendant “get on [the informant] a little bit for coming to the residence”
before hearing Arnold ask the defendant: “‘Hey, I hate to bother you, but can I get a fifty[?]” After
the buy was completed, Arnold and Kelley returned to Kelley’s office where the informant gave
Kelley the “cocaine or the crack rock he[] bought.” Kelley then searched the informant and his car
once more before the informant was allowed to leave. Four days later, Kelley procured a search
warrant for the defendant’s house, where he found some Brillo pads, rolling papers, and $800 to
$900.2 None of the marked money used in the transaction with the informant was found. Kelley
identified the tape recording of the transaction and his transcription of it, both of which were then
introduced into evidence.

        On cross-examination, Kelley acknowledged that he neither saw what occurred inside the
defendant’s residence during the transaction nor did he ever actually see the defendant. Asked if he
heard other voices over the transmission, Kelley said he heard other voices once the informant left
the defendant’s residence but could not identify the voices. The officer acknowledged that the
informant was currently in jail and denied that the informant was paid for the transaction. Kelley
identified the “rock” he got from the informant as being “[z]ero point zero three (0.03) grams.” He
acknowledged that there were a number of places the informant could have hidden a “rock” this size
but emphasized that “[a]ny pressure on it would completely break it.” He also acknowledged that
one cannot smoke crack cocaine with a Brillo pad alone and that he did not test the Brillo pad for
any cocaine residue.

         William Arnold, the informant, testified that he was currently confined at the Hardin County
Jail for violating his probation. He was placed on probation for aggravated burglary, and he
acknowledged having other prior felony convictions. Arnold said he had contacted Investigator
Dicus and told him “that in order to help out [his] mom and [his] sister, [he] would do whatever it
took to help them out.” Asked about his own drug use, Arnold acknowledged using drugs in the past
and restarting when he “got back involved with this.” Arnold said he had met the defendant through
his sister. Arnold explained that he met with Sergeant Kelley at his office on July 10, 2003, to set
up the drug buy from the defendant. Prior to leaving for the defendant’s, Kelley searched him to
make sure he had no drugs on him and then put a body wire on him. He said he initially attempted
to call the defendant’s cell phone but could not make contact so he went to the defendant’s home
where, he explained:



         1
             The informant was given $50 with which to buy drugs.

         2
          Kelley explained that he waited four days to get a search warrant to protect the informant and because he had
hoped the defendant would have “re-upped and had a fresh amount” of drugs.

                                                         -2-
       [W]e went on inside, and [the defendant] -- pretty much, he didn’t like the idea of me
       coming by without calling him and contacting him first, and we went back and forth
       about that a little bit and got that worked out, and I said I needed to get fifty dollars
       ($50) worth of crack from him, and he said, “All right,” and made the deal, and,
       pretty much, that was it.

Arnold said he gave $50 to the defendant and the defendant gave him crack in return. He said the
defendant had the crack in a “baggie inside of his pocket” and “opened the bag up and took out a
chunk and gave it to” him. After getting the crack, Arnold drove back to Kelley’s office where he
gave it to the officer.

       On cross-examination, Arnold again acknowledged his extensive criminal history and said
he was on probation at the time he contacted the Drug Task Force about doing a drug buy. He also
acknowledged testing positive for cocaine use in November 2003 but denied being “stoned” the day
he bought crack from the defendant. Arnold denied buying drugs from the defendant before and said
Dicus was the one who suggested that he buy from the defendant.

        Brian Eaton, a special agent forensic scientist with the Tennessee Bureau of Investigation
Crime Laboratory, testified that he analyzed the rock substance that Arnold purchased from the
defendant and his “results were that it was cocaine, which is a Schedule II, and the weight was zero
point three (0.3) grams.”

       Investigator Terry Dicus of the Hardin County Sheriff’s Department testified that the
informant contacted him and they discussed “setting up a controlled buy from [the defendant].” He
explained that he knew Arnold from “some previous dealings with him.” He said Arnold
volunteered to buy drugs in order to help his mother and sister. Dicus said Arnold’s mother, who
was in jail at the time, was given a beneficial work detail as a result of Arnold’s help. On cross-
examination, Dicus testified that he contacted Sergeant Kelley and they set up the drug buy. He
acknowledged that he could not observe the actual drug transaction but said he listened to it over the
transmitting device.

                                           ANALYSIS

                                  I. Sufficiency of the Evidence

        As his first issue, the defendant challenges the sufficiency of the evidence in support of his
conviction. He argues the evidence was, at best, sufficient to convict him of casual exchange
pursuant to Tennessee Code Annotated section 39-17-418(a) because “there was no prearranged
meeting between [the defendant] and the confidential informant for the purpose of anything, much
less the purchase or the sale of narcotics.” The State asserts that this was a straightforward “active
exchange of money for drugs” done for the defendant’s “‘pecuniary’ gain.” We agree with the State.




                                                 -3-
         When the sufficiency of the convicting evidence is challenged, the relevant question of the
reviewing court is “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 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.”); 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). 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 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). Our supreme court stated the rationale for this rule:

                 This well-settled rule rests on a sound foundation. The trial judge and the jury
        see the witnesses face to face, hear their testimony and observe their demeanor on the
        stand. Thus the trial judge and jury are the primary instrumentality of justice to
        determine the weight and credibility to be given to the testimony of witnesses. In the
        trial forum alone is there human atmosphere and the totality of the evidence cannot
        be reproduced with a written record in this Court.

Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212 Tenn. 464,
370 S.W.2d 523 (1963)). 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).

         To obtain a conviction for sale of less than .5 grams of a Schedule II controlled substance,
cocaine, the State was required to show beyond a reasonable doubt that the defendant knowingly sold
less than .5 grams of cocaine. Tenn. Code Ann. § 39-17-417(a)(3), (c)(2)(A) (Supp. 2005). In his
brief, the defendant concedes that he “recognized the informant as William Arnold, knew him by his
name, and ultimately sold a small quantity (approximately .3 grams) to William Arnold for fifty
dollars ($50.00).” He argues, however, that because “there was no prearranged meeting between
[himself] and the confidential informant,” because he knew the informant, no marked money or
narcotics were recovered from his home, and only a small amount of cocaine was passed between
himself and the informant, the evidence only supports a casual exchange. We disagree.

        Tennessee Code Annotated section 39-17-418 provides that “[i]t is an offense for a person
to knowingly possess or casually exchange a controlled substance unless the substance was obtained
directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course
of professional practice.” Tenn. Code Ann. § 39-17-418(a) (2003). This court has explained that
“a casual exchange is simply the transfer of drugs without the characteristics of bargaining, pecuniary
motive, and design typical of a sale. Thus, a common example of a casual exchange is the


                                                   -4-
spontaneous passing of a small amount of drugs at a party.” State v. Edward P. Harris, No. 01C01-
9810-CR-00392, 2000 WL 19536, at *3 (Tenn. Crim. App. Jan. 13, 2000) (citing State v. Copeland,
983 S.W.2d 703, 708 (Tenn. Crim. App. 1998)). Furthermore,

       [w]hether a transfer is a casual exchange is to be determined from all the facts and
       circumstances of the case. [State v.] Helton, 507 S.W.2d [117,] 120-21 [(Tenn.
       1974)]. Facts and circumstances indicating that the transaction is not a casual
       exchange include a lack of evidence that the defendant gave the drugs to the buyer
       out of friendship or as a friendly gesture, see State v. Jack Allison, No.
       01C01-9402-CC-00061, 1995 WL 60006, at *4 (Tenn. Crim. App., Nashville, Feb.
       14, 1995); no evidence reflecting anything other than a pecuniary motive for the
       transfer of the drugs, see Harris, 2000 WL 19536, at *3; no prior relationship
       between the defendant and the buyer, see id.; and no reason for the defendant and the
       buyer to be together, other than for the buyer to purchase drugs, see State v. Eric
       Larez, No. 03C01-9810-CR-00379, 1999 WL 997514, at *4 (Tenn. Crim. App.,
       Knoxville, Nov. 4, 1999).

State v. Donald L. Haynes, No. E2000-00672-CCA-R3-CD, 2001 WL 416729, at *4 (Tenn. Crim.
App. Apr. 24, 2001), perm. to appeal denied (Tenn. Oct 1, 2001).

        Viewed in the light most favorable to the State, the evidence showed that the informant went
to the defendant’s house with the sole intention of purchasing crack cocaine. He asked for $50 worth
of crack cocaine, which the defendant gave him in exchange for the money. These actions are more
than sufficient to support the defendant’s conviction for sale of cocaine. There is nothing to suggest
that this was a “spontaneous” exchange between friends. The transcript of the drug exchange,
entered into evidence as an exhibit, further illustrates how this drug transaction constitutes the sale
of cocaine and not a mere causal exchange:

       Arnold: Hi Man, I tried to call man but.

       [The defendant]: That’s what I’m saying man[.] I don’t want anybody coming to my
       house now day’s dog, I don’t like that. Shit man.

       Arnold: I tried to call but. (Interrupted)

       [The defendant]: That’s what I’m saying man[.] I don’t want no mother Fucker
       coming to my house at all dog you know what I’m saying. I’m serious about that
       now[.] I ant [sic] playing.

       Arnold: I’m sorry about that NANA[.]3 I didn’t know better you know.



       3
           According to the transcript, the defendant’s nickname is “NaNa.”

                                                         -5-
Arnold: Can I holler at you real quick a minute[?]

[The defendant]: What’s up man[?]

Arnold: I just want to get a Fifty from you man.

Arnold: My bad man, I haven’t messed enough to know you know.

Arnold: I should have called you first but I don’t want to get in [y]our business or
anything.

[The defendant]: I didn’t mean to be to[o] hard on you man but there is a lot of shit
going on right now.

Arnold: Aw I know you don’t ever want no surprise man. What’s the uh [w]hat’s
the right number[?]

[The defendant]: . . . . man . . . , that will change after tomorrow[.]

Arnold: Well uh.

[The defendant]: It might be that for one more night but that’s it though.

Arnold: Well, I’ll never do that to you again.

[The defendant]: Appreciate that man.

Arnold: Now now [sic] I’m happy.

[The defendant]: I got a lot of traffic out here man, I just don’t want no surprises
man. You know what I’m saying.

Arnold: I appreciate that man.

[The defendant]: The mother fuckers came through last night know what I’m
saying[?]

Arnold: Oh no shit.

[The defendant]: [Y]eah.

Arnold: Damn I didn’t know that.



                                          -6-
       [The defendant]: [Y]eah.

       Arnold: Be careful man.

The trial court charged the jury that it could find the defendant guilty of casual exchange rather than
sale of cocaine. The jury chose to convict the defendant of sale of cocaine, and the evidence is more
than sufficient to support its decision.

                                          II. Sentencing

       As his second issue, the defendant argues his sentence is illegal pursuant to Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). In a supplemental brief filed with this court, he
acknowledges that under State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), Blakely does not apply to
Tennessee sentencing guidelines. He, however, urges this court to reconsider the Gomez ruling.
This, we choose not to do. The defendant was sentenced as a multiple offender based on evidence
produced at his sentencing hearing that showed he had four prior felony convictions for sale of
cocaine. Accordingly, this argument is without merit.

                                          CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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