        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 10, 2012

                  STATE OF TENNESSEE v. COLE WOODARD

                  Appeal from the Criminal Court for Shelby County
                     No. 11-01335     John Fowlkes, Jr., Judge


              No. W2011-02224-CCA-R3-CD - Filed September 17, 2012


The Defendant-Appellant, Cole Woodard, was convicted by a Shelby County jury of sale of
cocaine, possession of cocaine with intent to sell, and possession of cocaine with intent to
deliver, Class C felonies, and was sentenced as a Range II, multiple offender to three
concurrent sentences of ten years. On appeal, Woodard argues that: (1) the evidence is
insufficient to support his convictions and (2) his convictions violate principles of double
jeopardy. Upon review, we affirm the convictions, but we vacate the judgments and remand
the case for entry of judgments reflecting merger of the jury verdicts into a single conviction
for sale of cocaine.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
                             Vacated and Remanded

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Stephen C. Bush, District Public Defender; Barry W. Kuhn, Assistant Public Defender,
Memphis, Tennessee, for the Defendant-Appellant, Cole Woodard.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Jose F. Leon, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

       Woodard was charged in two indictments for the two October 19, 2010, drug
transactions. In indictment number 11-01334, Woodard was charged with three offenses,
sale of cocaine, possession of cocaine with intent to sell, and possession of cocaine with
intent to deliver, which occurred between 2:00 p.m. and 3:00 p.m. on October 19, 2010. In
indictment number 11-01335, Woodard was charged with the same three offenses, sale of
cocaine, possession of cocaine with intent to sell, and possession of cocaine with intent to
deliver, which occurred between 3:30 p.m. and 4:30 p.m. on October 19, 2010.

        Trial. Officer SirCease Brooks of the Memphis Police Department, testified that he
bought crack cocaine from Woodard on two separate occasions on October 19, 2010. He
identified Woodard at trial. Officer Brooks said that he was sent to the area of 211 Leath
Street to purchase drugs. After driving to the area in his car, Officer Brooks gave a hand
signal asking if anyone had any drugs to sell, and Woodard approached his car and asked him
what he wanted to purchase. Officer Brooks told Woodard that he “want[ed] a twenty dollar
rock” of crack cocaine. Woodard got into Officer Brooks’s car and asked him to drive
around the block. Woodard pulled out a bag from his front pocket containing “five or six .
. . twenty dollar rocks” before giving Officer Brooks one of the rocks. Officer Brooks
complained to Woodard that the rock was “kind of small[,]” but he accepted it. Officer
Brooks gave Woodard twenty dollars and told him that he “might be back within a couple
of hours[.]” After dropping off Woodard in the area where he had picked him up, Officer
Brooks placed the rock of crack cocaine in a separate bag and labeled it with his undercover
number, the date, location, and type of the drug before hiding it in a compartment in his car.

        Officer Brooks made a another drug buy in a different area before returning to the
211 Leath Street area “about two or three hours” later. He saw Woodard, and Woodard again
got into his car. Woodard asked him if he wanted to purchase another twenty dollar rock of
crack cocaine, and Officer Brooks responded affirmatively. Officer Brooks told him that he
had to split the first rock with some other individuals and that he was purchasing the second
rock to smoke himself. Woodard gave him another rock of crack cocaine, slightly larger than
the first one he had purchased, from the bag in his front pocket and took the twenty dollars
from Officer Brooks before exiting the car. After dropping off Woodard, Officer Brooks
placed the rock in a separate bag and labeled it before hiding it in the compartment in his car.

       At the end of the day, Officer Brooks placed all of these bags containing drugs in a
secured lock box. He explained that he made five drugs buys on October 19, 2010, and had
five bags labeled one through five, which represented his first, second, third, fourth, and fifth
drug buys that day. Each time he purchase drugs on October 19, 2010, he placed the drugs
into the appropriately labeled bag. Officer Brooks stated that his third and fifth drug buys
on October 19, 2010, involved Woodard.

       Officer Brooks later identified Woodard in a photograph lineup. He said he made two
recordings of the second drug buy with Woodard on October 19, 2010, both of which were

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played for the jury. Officer Brooks said he was unable to make any recordings of the first
drug buy with Woodard because he “didn’t have enough time to turn on the camera on the
passenger side” of his car before Woodard entered his vehicle. However, for the second drug
buy, Officer Brooks made two recordings, one that contained audio of the conversation
between him and Woodard and one that contained video of Woodard and audio of their
conversation. After Woodard exited the car on the second drug buy, Officer Brooks placed
the rock of crack cocaine into the bag and dictated the time of the drug transaction on the
recordings.

        Officer Jonathon Clapp, an evidence custodian for the Memphis Police Department,
testified that he retrieved from the evidence lock box the two substances that Officer Brooks
purchased from Woodard on October 19, 2010. He stated that he was the only officer to have
a key to that lock box. Based on his training, Officer Clapp stated that the two substances
purchased from Woodard on October 19, 2010, appeared to be cocaine.

        Billy Byrd, another evidence custodian with the Memphis Police Department, picked
up the two envelopes containing the substances that Officer Brooks purchased from Woodard
on October 19, 2010. He then transported them to the Tennessee Bureau of Investigation
(TBI) for testing.

        Agent Brock Sain, a forensic scientist with the TBI, was declared an expert in the
fields of forensic science and identification of controlled substances. Agent Sain said he
tested the two substances that Officer Brooks purchased from Woodard on October 19, 2010.
He determined that the first substance tested positive for cocaine and weighed .10 grams and
that the second substance tested positive for cocaine and weighed .14 grams.

       Woodard declined to testify at trial, and no proof was offered by the defense.
Following the close of proof and deliberations, the jury acquitted Woodard of the charges in
indictment number 11-01334 but convicted Woodard of sale of cocaine, possession of
cocaine with intent to sell, and possession of cocaine with intent to deliver in indictment
number 11-01335.

                                        ANALYSIS

       I. Sufficiency of the Evidence. Woodard argues that the evidence is insufficient to
support his convictions. Specifically, he claims that “[t]here is no testimony that states
whether the events depicted in the video (Exhibit 4) refer to indictment 11-01335 . . . , which
contains the charges upon which the appellant was found guilty . . . , or events that would
pertain to indictment number 11-01334 . . . , which contain the charges of which the



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appellant was acquitted[.]” We disagree and conclude that the evidence is sufficient to
support his convictions.

        The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing 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 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

        The trier of fact must evaluate the credibility of the witnesses, determine the weight
given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the
evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960
S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the
jury, approved by the trial court, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A
guilty verdict also “removes the presumption of innocence and replaces it with a presumption
of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to
support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

       Tennessee Code Annotated section 39-17-417(a) provides, in pertinent part:

       It is an offense for a defendant to knowingly:

       (1) Manufacture a controlled substance;

       (2) Deliver a controlled substance;

       (3) Sell a controlled substance; or

       (4) Possess a controlled substance with intent to manufacture, deliver or sell
       the controlled substance.

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T.C.A. § 39-17-417(a). Cocaine is classified as a Schedule II controlled substance. Id. § 39-
17-408. A violation of Tennessee Code Annotated section 39-17-417(a) involving less than
.5 grams of cocaine constitutes a Class C felony. Id. § 39-17-417(c)(2)(A).

        We conclude that the evidence, viewed in the light most favorable to the State, is
sufficient to support Woodard’s convictions in indictment number 11-01335. Officer Brooks
testified that he purchased crack cocaine from Woodard on two separate occasions on
October 19, 2010. He bought one rock of crack cocaine from Woodard before returning
“two to three hours” later to buy a second rock of crack cocaine from him. At trial, Officer
Brooks identified Woodard as the individual who sold him the two rocks of crack cocaine
on October 19, 2010, during his third and fifth drug buys. In addition, Officer Brooks stated
that he made two recordings of the second drug buy with Woodard, both of which were
played for the jury. Officer Brooks stated that he was unable to make a recording of the first
drug buy with Woodard, which resulted in the charges in indictment number 11-01334.
However, he made audio and video recordings of the second drug buy with Woodard, which
resulted in the charges in indictment number 11-01335. Agent Sain testified that the
substance from the first drug buy with Woodard tested positive for cocaine and weighed .10
grams and that the substance from the second drug buy with Woodard tested positive for
cocaine and weighed .14 grams. After hearing all of the evidence presented at trial, the jury
acquitted Woodard of the offenses in indictment number 11-01334 and convicted him of the
offenses in indictment number 11-01335. We note that the audio portions of both of the
recordings from the second drug buy were identical, and Officer Brooks clearly dictated the
time immediately before and after the second drug buy onto the recordings. We conclude
that the evidence clearly established that the recordings in Exhibit 4 depicted the second drug
buy with Woodard, as charged in indictment number 11-01335. We further conclude that the
evidence, which included Officer Brooks’s testimony, the audio and video recordings for the
second drug buy, and the test results showing that the substance involved in the second drug
buy tested positive for cocaine and weighed .14 grams, is sufficient to support Woodard’s
convictions.

        II. Double Jeopardy. Woodard also argues that his dual convictions for possession
of cocaine with intent to sell and possession of cocaine with intent to deliver violate
principles of double jeopardy because they were supported by the same evidence. See State
v. Johnson, 765 S.W.2d 780, 782 (Tenn. Crim. App. 1988) (concluding that double jeopardy
barred convictions for possession with intent to sell and possession with intent to deliver
when the convictions were supported by the same proof). In response, the State asserts that
Woodard waived this issue for failing to include it in his motion for new trial but concedes
that the two convictions should be merged.




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      We agree that Woodard failed to raise this issue is his motion for new trial. Tennessee
Rule of Appellate Procedure 3(e) states:

       [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) (emphasis added). However, the State’s argument that Woodard’s
issue is waived is misplaced. By its explicit terms, Rule 3(e) operates as a waiver of only
those issues in which a new trial is the remedy for the error. A new trial is not the remedy
for a double jeopardy error; instead, a reversal of the conviction and a dismissal of the
relevant charge or a merger of the two counts that violate double jeopardy are the proper
remedies. See State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997) (concluding
that both dismissal of the charge and merger of the same offense counts into one judgment
of conviction are appropriate remedies when the convictions violate a defendant’s right
against double jeopardy). Consequently, we may address Woodard’s double jeopardy issue
on its merits, despite his failure to include the issue in his motion for new trial. See id.

       Moreover, multiple convictions that violate double jeopardy constitute “plain error.”
See Tenn. R. App. P. 36(b) (stating that “[w]hen necessary to do substantial justice, [this]
court may consider an error that has affected the substantial rights of a party at any time, even
though the error was not raised in the motion for a new trial or assigned as error on appeal”);
State v. Epps, 989 S.W.2d 742, 745 (Tenn. Crim. App. 1998) (finding, “as plain error, that
the appellant’s convictions for both theft and attempted theft violate principles of double
jeopardy”).

        We note that the double jeopardy clause of the United States Constitution and article
I, section 10 of the Tennessee Constitution prohibit placing a individual in jeopardy twice
for the same offense. U.S. Const. amend. V; Tenn. Const. art I, § 10. Three fundamental
protections are encompassed in the principle of double jeopardy: “(1) protection against a
second prosecution after an acquittal; (2) protection against a second prosecution after
conviction; and (3) protection against multiple punishments for the same offense.” State v.
Thompson, 285 S.W.3d 840, 847 (Tenn. 2009) (citations and internal quotation marks
omitted). In this case, we are concerned with the third category of double jeopardy
protection, multiple punishments for the same offense, or multiplicity.




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       “Multiplicity concerns the division of conduct into discrete offenses, creating several
offenses out of a single offense.” State v. Phillips, 924 S.W.2d 662, 665 (Tenn. 1996)
(footnote omitted). Although Phillips was a sex-offense case, the principles in that case have
been adjusted and applied to other types of criminal offenses. Epps, 989 S.W.2d at 745
(Tenn. Crim. App. 1998). This court, when examining an issue regarding multiplicity, is
guided by the following principles:

       1. A single offense may not be divided into separate parts; generally, a single
       wrongful act may not furnish the basis for more than one criminal prosecution;

       2. If each offense charged requires proof of a fact not required in proving the
       other, the offenses are not multiplicitous; and

       3. Where time and location separate and distinguish the commission of the
       offenses, the offenses cannot be said to have arisen out of a single wrongful
       act.

Id. at 745 (quoting Phillips, 924 S.W.2d at 665). Other considerations regarding multiplicity
are “the nature of the act; the time elapsed between the alleged conduct; the intent of the
accused, i.e., was a new intent formed; and cumulative punishment . . . .” Id.

        Here, the evidence of the three crimes is the exactly the same. All of these offenses
all occurred at the same time, in the same drug transaction, at the same place, and involved
the same drugs. See State v. Chitwood, 735 S.W.2d 741, 742 (Tenn. Crim. App. 1987)
(concluding that double jeopardy did not bar convictions for sale of cocaine in one location
and possession of cocaine stored in a different location); State v. Jose D. Holmes, No.
02C01-9411-CR-00251, 1995 WL 695127, at *3 (Tenn. Crim. App. Aug. 24, 1994) (holding
that double jeopardy did not prohibit convictions for sale of cocaine to a confidential
information and possession with intent to sell cocaine found in a later search of the
defendant’s vehicle when the convictions involved “distinct quantities of cocaine”), perm.
app. denied (Tenn. Apr. 8, 1996); State v. Walter Jones, No. 02C01-9307-CR-00155, 1994
WL 456347, at *3 (Tenn. Crim. App. Aug. 24, 1994) (concluding that double jeopardy did
not bar convictions for sale of cocaine and possession of cocaine with intent to sell when the
evidence showed “two separate crimes with two distinct quantities of cocaine”), perm. app.
denied (Tenn. Jan. 3, 1995). No time elapsed between Woodard’s possession with intent to
sell, his possession of cocaine with intent to deliver, and his actual sale of cocaine.
Woodard’s intent in each of these offenses was the same.




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        Given the specific facts of this case, we conclude that Woodard’s multiple convictions
for sale of cocaine, possession of cocaine with intent to sell, and possession of cocaine with
intent to deliver violate the principles of double jeopardy. See State v. Williams, 623 S.W.2d
121, 125 (Tenn. Crim. App. 1981) (noting that it is “impossible to conceive of a situation
where a defendant could sell narcotics without being in possession, at least constructively,
of those narcotics” before concluding that double jeopardy barred dual convictions for sale
of a controlled substance and possession with intent to sell the same controlled substance);
State v. Federick Hobson, No. 2010-01766-CCA-R3-CD, 2011 WL 4375329, at *9 (Tenn.
Crim. App. Sept. 21, 2011) (holding that double jeopardy prohibited convictions for sale of
cocaine, possession with intent to sell, and possession with intent to deliver when the
convictions were based upon the same cocaine), perm. app. denied (Tenn. Feb. 15, 2012);
State v. Artez L. Moreis, No. W2002-00474-CCA-R3-CD, 2003 WL 1860537, at *4 (Tenn.
Crim. App. Apr. 2, 2003) (stating that three convictions for sale of cocaine, possession of
cocaine with intent to sell, and possession of cocaine with intent to deliver “based upon a
single drug sale involving the same controlled substance violate double jeopardy”), perm.
app. denied (Tenn. Dec. 8, 2003).

        The trial court should have merged the jury’s guilty verdicts for these three offenses
into a single conviction for sale of cocaine. See State v. Howard, 30 S.W.3d 271, 274 n.4
(Tenn. 2000) (holding that when a jury convicts a defendant of multiple counts regarding the
same offense the trial court can avoid a violation of double jeopardy by merging the offenses
into a single judgment of conviction); Addison, 973 S.W.2d at 267 (concluding that trial
courts should “merg[e] the same offense counts into one judgment of conviction” in order
to avoid a double jeopardy violation). Accordingly, we affirm the convictions, but we vacate
the judgments and remand the case for entry of judgments reflecting merger of the jury
verdicts into a single conviction for sale of cocaine.

                                      CONCLUSION

      Upon review, we affirm Woodard’s convictions, but we vacate the judgments and
remand the case for entry of judgments reflecting merger of the jury verdicts into a single
conviction for sale of cocaine.




                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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