         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 10, 2002

            STATE OF TENNESSEE v. WENDELL RAY WILLIAMS

                              Criminal Court for Davidson County
                                        No. 2001-A-108



                      No. M2001-02296-CCA-R3-CD - Filed April 4, 2003



                                     DISSENTING OPINION

        The majority concludes that reversal is necessitated based upon (1) failure to instruct the jury
on facilitation and (2) error in admitting into evidence the defendant's prior felony drug conviction
for purposes of impeachment. Because I am unable to join on either point, I must respectfully
dissent.

       As observed by the majority, determination of whether a lesser included offense instruction
should be given is governed by the following test:

       First, the trial court must determine whether any evidence exists that reasonable
       minds could accept as to the lesser-included offense. In making this determination,
       the trial court must view the evidence liberally in the light most favorable to the
       existence of the lesser-included offense without making any judgments on the
       credibility of such evidence. Second, the trial court must determine if the evidence,
       viewed in this light, is legally sufficient to support a conviction for the lesser-
       included offense.

State v. Burns, 6 S.W.3d 453, 469 (Tenn. 1999).

       To convict the defendant under a theory of facilitation in this case, the State was required to
prove that the defendant "knowingly furnished substantial assistance in the commission of the
felony." Tenn. Code Ann. § 39-11-403(a).

         The defendant's position at trial, viewed in the light most favorable to the existence of a
facilitation instruction, established that: (1) the defendant told police that the cocaine belonged to
his wife; (2) his wife had a significant cocaine problem; (3) he accompanied his wife knowing that
she was going to purchase drugs; (4) the car was driven by the wife; (5) the defendant and his wife
had been married for ten years and the car "belonged" to him; and (6) the defendant rode with his
wife and remained in the car while she went inside a friend's house. I am unable to conclude from
these facts that the defendant's mere presence in a car driven by his wife is enough to constitute
substantial assistance in the commission of the charged felony. As such, I find no evidence exists,
from which reasonable minds could accept, to support a theory of facilitation. Accordingly, I find
no error by the trial court in rejecting the instruction of facilitating the possession of cocaine with
the intent to sell.

       Moreover, with regard to the second issue, I find, in accordance with State v. Vernon
Dewayne Waller, No. M2001-02414-CCA-R3-CD, (Tenn. Crim. App. at Nashvillle, Aug. 23,
2002), perm. to appeal granted (Tenn. 2002), no error in the admission of the defendant's prior
felony drug convictions for purposes of impeachment.

       The illegal sale of drugs is an extremely profitable criminal enterprise and its very
       nature involves a sustained intent to violate the law and the use of deceptive
       practices. State v. Christopher Knighton, No. E2000-00746-CCA-R3-CD (Tenn.
       Crim. App. at Knoxville, Mar. 14, 2001). These crimes are normally not detected
       in the absence of a police undercover operation. Id. People who deal in drugs
       frequently suffer an addiction to drugs and commit other crimes to obtain money to
       buy drugs. Id. These circumstances all involve elements of dishonesty. Id. We agree
       with this court’s opinion in State v. Christopher Knighton and find that the better
       reasoned view is expressed in those cases which hold that felony drug convictions are
       relevant to the issue of credibility.

Id.

        The trial court's decision to admit a prior conviction under Rule 609 will not be reversed on
appeal, unless the trial court abused its discretion. State v. Blanton, 926 S.W.2d 953, 960 (Tenn.
Crim. App. 1996). I find no abuse of discretion.

       For the above reasons, I would affirm the judgment of the trial court.




                                                       ____________________________________
                                                       DAVID G. HAYES, JUDGE




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