        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs August 05, 2014

                 STATE OF TENNESSEE v. BENJAMIN GUNN

                  Appeal from the Criminal Court for Shelby County
                       No. 0902072    W. Mark Ward, Judge




               No. W2013-02006-CCA-R3-CD - Filed January 30, 2015


Defendant, Benjamin Gunn, was indicted by the Shelby County Grand Jury in Count 1 with
possession of more than .5 grams of cocaine with intent to sell, in Count 2 with possession
of more than .5 grams of cocaine with intent to deliver, and in Count 3 with felony
possession of marijuana. Defendant was convicted as charged by a jury. The trial court
merged Count 2 with Count 1 and sentenced Defendant to 12 years’ incarceration. The trial
court imposed a sentence of two years’ incarceration for Count 3, to be served consecutively
with Defendant’s sentence for his conviction in Count 1. In this appeal as of right,
Defendant challenges the trial court’s failure to exclude evidence that prior search warrants
were executed on the defendant’s residence. We conclude that the trial court erred by
allowing evidence of the prior searches of Defendant’s residence. Accordingly, we reverse
the judgments of the trial court and remand this case for a new trial.

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

T HOMAS T. W OODALL, P.J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Andrew R. E. Plunk, Memphis, Tennessee, for the appellant, Benjamin Gunn.

Herbert H. Slatery, III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Megan Fowler and Gavin
Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.
                                         OPINION

404(b) hearing

        The charges in this appeal resulted from the execution of a search warrant at
Defendant’s home on February 29, 2008. Prior to any proof being presented at trial, the State
presented a motion in limine to be allowed to introduce evidence that prior search warrants
were executed at Defendant’s home on August 1 and August 19, 2007. The State argued that
the evidence was relevant to prove Defendant’s intent to sell or deliver, as well as to rebut
a possible defense of mistake or accident if Defendant presented proof that the drugs were
for his personal use. In its argument to the court, the State emphasized that the prior search
warrants were executed six months prior to the search warrant leading to the charges in this
case.

       The trial court permitted the State to introduce evidence of the search warrants
executed on August 1 and August 19, 2007, finding that there was clear and convincing
evidence of the incidents, that they were relevant to prove Defendant’s intent to sell and
Defendant’s actual possession of the drugs, and that the probative value was not outweighed
by the danger of unfair prejudice.

Trial

       On August 1, 2007, Detective Kittrel Robinson of the Memphis Police Department
executed a search warrant at Defendant’s residence based on information obtained from a
confidential informant. Detective Robinson testified that Defendant was not the “target” of
the search warrant executed on August 1, 2007. He testified that Defendant owned the
residence to be searched but that the confidential informant had purchased drugs from
Trennel Smith. When Detective Robinson entered the residence to execute the search
warrant, he observed Defendant “grabbing the drugs off the table and running to the
bathroom[,]” where Defendant tried to dispose of crack cocaine in the toilet. Officers
recovered marijuana and crack cocaine.

        Detective Robinson executed another search warrant at Defendant’s residence on
February 29, 2008. Detective Robinson testified that Defendant was the “target” of that
search warrant. Detective Robinson conducted surveillance of the residence prior to the
execution of the search warrant. He testified that he had observed Defendant meet people
at the door. Visitors would enter the residence for one minute or less and then leave.
Detective Robinson testified that he observed more traffic to the residence than was typical
in the area where the house was located.



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        When Detective Robinson entered the house on February 29, 2008, Defendant ran to
a bedroom in the back of the house. Detective Robinson chased Defendant and saw
Defendant dropping rocks of crack cocaine as he ran. Detective Robinson apprehended
Defendant in the bedroom as Defendant was throwing powder cocaine from his hand. Police
recovered approximately eight grams of crack cocaine that Defendant dropped while running
and one gram of powder cocaine. The crack cocaine was individually packaged, which is
consistent with resale. Detective Robinson testified that marijuana was found on a table in
the living room. A Tennessee Bureau of Investigation lab report indicated that the weight
of the marijuana was 7.12 grams. On cross-examination, Detective Robinson testified that
“a pipe” was found on the bed where he apprehended Defendant. He also testified that police
did not find any cash on Defendant’s person or in the house.

        Memphis Police Officer Charles Teeters assisted in conducting surveillance of
Defendant’s residence on August 19, 2007. Officer Teeters observed “foot traffic come to
the residence, stay for a brief period of time and then leave[,]” which was consistent with
street level drug sales. Officer Teeters observed individuals knock on the front door, enter
the residence, and stay for a short period of time. He saw the individuals exchange items
with someone inside the residence. Officer Teeters conducted a “knock and talk.” He and
other officers entered the residence, and Officer Teeters noticed a “strong odor of burnt
marijuana in the air.” He heard “running in the back and voices in the back [of the house].”
Officer Teeters conducted a protective sweep of the residence in order to prevent the
destruction of evidence or the individuals inside the residence arming themselves. Officer
Teeters found Defendant in a back bedroom.

       Officer Teeters subsequently obtained a search warrant and found marijuana and 3.6
grams of crack cocaine and approximately one ounce of marijuana inside “a false bottom
container” in the bedroom where he had found Defendant. The marijuana and rocks of crack
cocaine were individually packaged as though for sale. He also found “rocking tubes” which
are used to turn powder cocaine into rocks of crack cocaine as well as digital scales. Officer
Teeters also assisted in executing search warrants at Defendant’s residence on August 1,
2007 and February 29, 2008.

        Defendant testified that he lived in the middle duplex in a row of three duplexes and
that a tall hedge would have blocked officers’ view of his residence. He testified, “[y]ou
[can] see people coming toward [the duplexes] but you don’t know which one they went in.”
He testified that he had a lot of friends, and they would visit frequently. He denied that any
visitors to his house stayed for only 30 seconds and left. Defendant testified that he did not
view marijuana as being illegal because he used it. He testified that he was unaware that
there were drugs other than marijuana at his house on the three occasions police found drugs.
He believed that others brought drugs into his house when they would “party.” Defendant

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denied using any drugs other than marijuana. Defendant acknowledged that he had been
convicted of tampering with evidence. Defendant denied that he ran from police. Defendant
testified that he used the digital scales found in his house to weigh marijuana he bought for
his personal use.

Analysis

       The sole issue Defendant raises for our review is whether the trial court erred by not
excluding evidence of prior searches of Defendant’s residence. Defendant asserts that
evidence presented by the State regarding the prior occasions officers found drugs in
Defendant’s residence was confusing to the jury. Defendant also argues that evidence of the
two prior searches was more prejudicial than probative and unnecessary to rebut a claim of
accident or mistake or to show Defendant’s intent to sell.

       Rule 404(b) of the Tennessee Rules of Evidence provides that:

        Evidence of other crimes, wrongs, or acts is not admissible to prove the
        character of a person in order to show action in conformity with the
        character trait. It may, however, be admissible for other purposes.

        In State v. Mallard, 40 S.W.3d 473, 487 (Tenn. 2001), our supreme court held that
“evidence that the defendant has committed some other crime wholly independent of that for
which he is charged, even though it is a crime of the same character, is usually not admissible
because it is irrelevant.” Nonetheless, where the prior crime “is relevant to some matter
actually in issue in the case on trial and if its probative value as evidence of such matter in
issue is not outweighed by its prejudicial effect upon the defendant, then such evidence may
be properly admitted.” Mallard, 40 S.W.3d at 487. Additionally, this court has previously
stated, “only in an exceptional case will another crime, wrong, or bad act be relevant to an
issue other than the accused’s character. Such exceptional cases include identity, intent,
motive, opportunity, or rebuttal of mistake or accident.” State v. Luellen, 867 S.W.2d 736,
740 (Tenn. Crim. App. 1992).

       To admit such evidence, Rule 404(b) specifies the following:

        (1) The court upon request must hold a hearing outside the jury’s presence;

        (2) The court must determine that a material issue exists other than conduct
        conforming with a character trait and must upon request state on the record
        the material issue, the ruling, and the reasons for admitting the evidence;



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        (3) The court must find proof of the other crime, wrong, or act to be clear
        and convincing; and

        (4) The court must exclude the evidence if its probative value is outweighed
        by the danger of unfair prejudice.

Tenn R. Evid. 404(b).

       “The safeguards in Rule 404(b) ensure that defendants are not convicted for charged
offenses based on evidence of prior crimes, wrongs or acts.” State v. Gilley, 173 S.W.3d 1,
5 (Tenn. 2005) (citing State v. James, 81 S.W.3d 751, 758 (Tenn. 2002)) (emphasis in
original). Should a review of the record indicate that the trial court substantially complied
with the requirements of Rule 404(b), the trial court’s admission of the challenged evidence
will remain undisturbed absent an abuse of discretion. James, 81 S.W.3d at 759; State v.
Dubose, 953 S.W.2d 649, 652 (Tenn. 1997).

        We first note that the trial court substantially complied with the procedural steps
announced in Rule 404(b) and held a hearing outside the jury’s presence. The trial court
found that there was clear and convincing evidence of the August 1, 2007 incident. The trial
court reserved ruling on whether there was clear and convincing evidence of the August 19,
2007 incident. On the following day, however, the State presented the testimony of Officer
Teeters, who testified regarding the events of that date, as well as the testimony of Mike
Triplett, a court clerk employee who testified that Defendant pleaded guilty to possession of
cocaine for the offense that occurred on August 19, 2007. Although the trial court did not
subsequently amend its ruling to explicitly find that clear and convincing evidence existed
of the August 19 incident, following the State’s additional evidence, the trial court stated,
“based on my ruling yesterday, . . . .” Under the circumstances of this case, we conclude that
the trial court implicitly found clear and convincing evidence of the August 19 incident. The
trial court also ruled that evidence of the prior searches was relevant to show Defendant’s
intent to sell and to show Defendant’s actual possession of the drugs and that the probative
value of the evidence was not outweighed by the danger of unfair prejudice. Therefore, we
review the trial court’s ruling for an abuse of discretion.

        In making its ruling, the trial court emphasized that the prior searches occurred within
seven months of the offenses in this case and at the same location. The trial court recognized
that “in order to allow admission of prior similar crimes to show intent, the trial judge must
find some relevance to the issue of intent other than propensity.” In support of its argument
that a material issue existed as to Defendant’s intent to sell, the State asserted that evidence
was presented at a prior trial “that [Defendant] was just an innocent bystander” and did not
possess the intent to sell. Also, the following exchange occurred during the 404(b) hearing:

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        THE COURT:            Well, let me ask you a question [defense counsel] and
                              I don’t mean to put you on the spot, but obviously,
                              whatever – if I decide it has some relevance on the
                              issue of intent, I have to weigh the probative value
                              versus the prejudicial effect.

                              Very difficult in the abstract to do that without
                              knowing what the defense theory is going to be.

                              So it’s kind of hard on me here prior to hearing the
                              evidence to know, for instance, if your client is going
                              to acknowledge the intent element of something like
                              that. And then, all of this is kind of overkill.

                              But it just depends on what your client’s defense is
                              going to be. Do you have any clue about what it’s
                              going to be so that I can weigh the probative value
                              versus the prejudicial effect? Because that all depends
                              on the issues involved in a particular case?

        [Defense counsel]: We do, Your Honor, and we’re not stipulating as to
                           intent to manufacture, deliver or sell, by any means.

        THE COURT:            So the State’s got to prove that he possessed it and
                              that he had the requisite intent.

        In ruling that a material issue existed for which evidence of the prior searches was
relevant, the trial court found that the evidence was relevant to establish Defendant’s intent
to manufacture, sell, or deliver the controlled substances, a element of the offense for which
Defendant was charged. “[T]he ‘intent’ exception [to Rule 404(b)] should not allow the
introduction of other crimes simply to allow the state to prove the applicable mens rea.” W.
Mark Ward, Tennessee Criminal Trial Practice § 22:24 (2014-2015 ed.) (citation omitted).
“The conclusion that a defendant had the specific intent to commit the crime charged on a
specific day and time because he or she committed a similar crime on another day and time
requires an inference that the defendant has the propensity to commit the crime on trial which
is precisely what is condemned by the Rule.” Id. (citation omitted).

       In Gilley, our supreme court warned against making a 404(b) ruling prior to evidence
being presented which makes the prior crimes evidence admissible. The court stated:



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        Although Rule 404(b) does not preclude the trial court from conducting a
        hearing or ruling prior to trial, we share the Court of Criminal Appeals’
        view that the Rule 404(b) criteria – in particular, the existence of a material
        issue at trial and the balancing of the probative value and unfair prejudice
        – require consideration of the evidence presented at trial. Thus, trial courts
        must be cognizant that if pretrial evidentiary rulings are made, they may
        need to be reconsidered or revised based on the evidence presented at trial.

Gilley, 173 S.W.3d at 6.

        Here, the trial court ruled that evidence of the August 1 and 19 searches was
admissible prior to the presentation of any proof based primarily on Defendant’s
unwillingness to stipulate an element of the offense. As alluded to above, until a material
issue is created by the evidence presented at trial, evidence of prior bad acts is generally not
admissible. We note that the State’s first witness at trial, Detective Robinson, first testified
about the details of the August 1, 2007 search prior to providing any details of the search on
February 29, 2008, which led to the charges for which Defendant was on trial. At this
juncture of the trial, no “material issue” as contemplated by 404(b) existed.

        Furthermore, the evidence of the prior searches of Defendant’s home fails part 4 of
the 404(b) test. Under the circumstances in this case, we believe that the probative value of
the evidence is outweighed by its unfair prejudicial effect, primarily because the offenses are
so closely related. During the 404(b) hearing, the State, arguing in favor of the probative
value of the evidence, stated that the prior searches and the search leading to Defendant’s
charges in this case were “glaringly similar.” We believe that because evidence of the prior
searches was presented first by the State at trial, Defendant was unfairly prejudiced. We
have come to the conclusion, therefore, that evidence of the prior searches is not admissible
on retrial unless the trial court determines, at the conclusion of any proof presented by
Defendant (and not pre-trial), that the State can meet its heavy burden in this case showing
that the probative value of evidence of the prior searches is not outweighed by the danger of
unfair prejudice.

       We further conclude that the trial court’s pre-trial ruling which granted the State’s
request to be allowed to make a preemptive strike against Defendant with evidence of prior
bad acts likely forced Defendant to testify. A defendant in some circumstances by testimony
can open a door to allow prior crimes evidence that otherwise would be inadmissible.
However, a defendant never opens that door based on proof he or she offered in a prior trial,
or by refusing to stipulate proof establishing beyond a reasonable doubt an element of the
crime charged.



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        Therefore, we conclude that the trial court abused its discretion by allowing evidence
of the prior searches of Defendant’s residence. Moreover, we conclude that the error was not
harmless and more probably than not affected the outcome of the trial. See Tenn. R. App.
P. 36(b); State v. Luellen, 867 S.W.2d 736, 741 (Tenn. Crim. App. 1992). Accordingly, the
judgments of the trial court are reversed, and this case is remanded for a new trial.

                                           _______________________________________
                                           THOMAS T. WOODALL, PRESIDING JUDGE




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