              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                         AT JACKSON               FILED
                              OCTOBER 1998 SESSION
                                                                  November 5, 1998

                                                                  Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
STATE OF TENNESSEE,                  )
                                     )     C.C.A. No. 02C01-9711-CC-00435
             Appellee,               )
                                     )     Lauderdale County
v.                                   )
                                     )     Honorable Joseph H. Walker, III
GRADY DEMOSS,                        )
                                     )     (Delivery of Schedule II Controlled Substance)
             Appellant.              )




FOR THE APPELLANT:                         FOR THE APPELLEE:

Julie K. Pillow                            John Knox Walkup
Assistant District Public Defender         Attorney General & Reporter
P. O. Box 700                              425 Fifth Avenue, North
Somerville, TN 38068-0700                  Nashville, TN 37243-0493

OF COUNSEL:                                Douglas D. Himes
Gary F. Antrican                           Assistant Attorney General
District Public Defender                   425 Fifth Avenue, North
P. O. Box 700                              Nashville, TN 37243-0493
Somerville, TN 38068-0700
                                           Elizabeth T. Rice
                                           District Attorney General
                                           302 Market Street
                                           Somerville, TN 38068

                                           Mark E. Davidson
                                           District Attorney General
                                           302 Market Street
                                           Somerville, TN 38068




OPINION FILED: ____________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                         OPINION


       The appellant, Grady Demoss, referred herein as the defendant, appeals as of right

from the conviction for delivery of a Schedule II controlled substance, to wit: cocaine, less

than .5 grams, by a Lauderdale County jury. As a result of the jury verdict, the trial court

imposed a sentence of four years, six months in the Department of Correction and a fine

of $2,500. The defendant presents two issues for appellate review.

       1.   Whether the trial court erred in overruling the defendant’s objection
            on grounds of hearsay to Officer Thompson testifying as to what he
            overheard the confidential informant say to the defendant on
            December 11, 1996 at the time of the alleged exchange of cocaine.

       2.   Whether the evidence presented at trial was sufficient to support the
            verdict and judgment of guilty for the offense of delivery of Schedule
            II controlled substance (cocaine) less than .5 grams.



       After a review of the entire record, the briefs of the parties, and the appropriate law,

we have determined there is no error requiring a reversal. Accordingly, the trial court’s

judgment is affirmed.



                                FACTUAL BACKGROUND



       Mr. John Thompson, a veteran drug investigator for the Lauderdale County Sheriff’s

Department, testified he was a member of a surveillance team working drug buys through

a confidential informant in Henning, Tennessee on December 11, 1996. The surveillance

team consisted of the director of the drug task force, fellow agents, and an evidence

custodian, who was responsible for recovering and securing evidence of buys. The agents

utilized a surveillance van near target areas. Officer Thompson and Agent Dan Jones

would monitor drug buys through the use of a high-powered video camera and TV monitor.

In addition, a confidential informant would be searched for the absence of drugs and then

wired with a Kehl set which transmitted conversations back to the surveillance van. These

conversations were then recorded on audiotapes. Thus, the surveillance officers were able

to hear everything said during the drug buys.




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      At approximately 4:30 p.m. on December 11, 1996, Officer Thompson met a

confidential informant, Donald Wallace, at the Henning rest area on Highway 51. Wallace

was searched and fitted with a Kehl set to record any conversations. Prior to sending the

confidential informant into Henning, Officer Thompson and Deputy Kevin Brogdon drove

through Henning and observed the defendant standing in front of Rosie’s Cafe. Officer

Thompson gave the confidential informant two $20 bills for the buys. Officer Thompson

and Agent Jones proceeded to the target area and set up their surveillance van. Officer

Thompson notified Deputy Brogdon to send the confidential informant to the target area.



      Officer Thompson began videoing the target area. Officer Thompson observed the

defendant go inside Rosie’s. The defendant came out of the cafe and the confidential

informant stopped in front of Rosie’s, where the defendant and Wallace began talking.

Officer Thompson heard Wallace tell the defendant, “he wanted a couple of stones” (street

slang for crack cocaine). The defendant told Wallace, “Okay. Pull over.” When Wallace

parked his car, the defendant approached the car and stated, “Yeah, what you need?”

Wallace responded, “I want to get a couple of nice stones.” The defendant said, “Okay,

I’ll be right back.” The defendant went into the cafe and returned. The defendant then got

into the car and directed Wallace to drive off. The defendant inquired if the confidential

informant was the police. Wallace denied this. W allace then bought the stones from the

defendant for $40.



      Officer Thompson and Agent Jones returned to the rest area, where they observed

Deputy Brogdon had two pieces of crack cocaine in a clear Ziploc bag in his custody.

Later, Officer Thompson discovered the Kehl set transmissions of the conversations

between the defendant and Wallace had malfunctioned and were inaudible.



      Donald Wallace, the confidential informant in this case, testified he contacted the

Lauderdale County Sheriff’s Department and talked to Officer Thompson about undercover

work. Mr. Wallace had three small children and was concerned about the local volume of

drugs and violence. Mr. Wallace had ambitions to be a law enforcement officer, but lacked



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a high school diploma or GED.



      Mr. Wallace testified he was advised by Officer Thompson to meet Thompson at the

rest area on Highway 51. Wallace was searched and then wired with a wire monitor and

given $40 cash. Upon instructions, Wallace proceeded to the McFarland Street area in

Henning. Wallace drove around the block and upon his return, the defendant approached

him and inquired, “What do you want?” Wallace responded that he wanted two of the

biggest stones the defendant had. The defendant said, “Wait a minute.” The defendant

went in the cafe and returned and got in Wallace’s car. They rode up the street. The

defendant showed Wallace two rocks of cocaine and Wallace gave the defendant the two

$20 bills. Wallace drove the defendant back to the cafe’s area and then returned to the

rest area. Wallace gave the two pieces of crack cocaine to Deputy Brogdon. Wallace

testified he received $40 for making this buy. Wallace used the name of John Anderson

during this buy. Also, Wallace testified this was his first buy as an undercover informant

and he did not know the defendant prior to this buy.



      Kevin Brogdon, deputy sheriff for Lauderdale County, testified he assisted Officer

John Thompson and others in an undercover buy in Henning. Officer Brogdon’s

responsibility was to remain at the rest area during the buy. The confidential informant,

Donald Wallace, was wired and sent to the area of the buy after Officer Thompson had set

up surveillance. Later, Wallace returned and gave Deputy Brogdon the narcotics he had

purchased. Deputy Brogdon denied the defendant was singled out for drug purchases.



       Dennis Cheairs, director of the Twenty-Fifth Judicial District Violent Crime Drug Task

Force, testified he participated in the purchase of cocaine from the defendant. Mr. Cheairs

and another officer were to provide backup for safety reasons for the confidential

informant. Mr. Cheairs followed Wallace to Henning and was in audio contact with the

informant. Cheairs heard someone talking to the informant and heard a car door shut.

Then, Cheairs followed the informant back to the rest area. Cheairs could not recall the

specifics of the conversation he heard between the defendant and the informant.



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          Ms. Lisa Mays, forensic scientist with the Tennessee Bureau of Investigation Crime

Laboratory, testified that the substance she received from Officer Thompson contained

cocaine base and weighed 0.1 gram.



          The defendant testified he was standing outside Rosie’s Cafe on December 11,

1996. Rosie was a longtime friend of the family. The defendant testified Donald Wallace

pulled up, threw up his hand, and hollered at the defendant. The defendant approached

the car and Wallace asked the defendant about some drugs. The defendant told Wallace,

“I do not sell drugs; I didn’t know nothing about no drugs.” The defendant asked Wallace

to wait a minute while the defendant went in Rosie’s to use the bathroom. The defendant

returned to Wallace’s car and W allace gave the defendant a ride up the street. The

defendant denied there was any exchange of drugs or money in the car. The defendant

testified he knew Officer Thompson from previous encounters on McFarland Street. The

defendant testified he had never seen Wallace before and after Wallace let him out of the

car, the defendant went to Jessie Halliburton’s store to purchase cigarettes. Apparently,

Jessie Halliburton would have been a reluctant witness in the defendant’s behalf.



          Based on all of the testimony and physical evidence, the jury found the defendant

guilty.



                                    APPELLATE ISSUES



          The defendant contends the trial court erred in permitting Officer Thompson to

testify as to what the confidential informant, Donald Wallace, said during the drug

transaction. The defendant argues that these statements were made for the truth of the

matter asserted, there was a drug transaction between the defendant and Donald Wallace,

in violation of Rule 801(c), Tennessee Rules of Evidence. However, the defendant does

not cite any authorities, other than the rule, in support of his contention that the trial court’s

ruling was in error under these facts. The State counters that the statements of Wallace

were not offered to prove the truth of what the informant asserted, but to explain the police



                                                5
surveillance and give context to the investigation.



       Tennessee Rules of Evidence 801 defines hearsay as:

              (a) Statement. A “statement” is (1) an oral or written
                  assertion or (2) nonverbal conduct of a person if it is
                  intended by the person as an assertion.

              (b) Declarant. A “declarant” is a person who makes a
                  statement.

              (c) Hearsay. “Hearsay” is a statement, other than one
                  made by the declarant while testifying at the trial or
                  hearing, offered in evidence to prove the truth of the
                  matter asserted.


       We do not find the trial court was in error in permitting Officer Thompson to relate

what the informant, Donald Wallace, stated to the defendant. The testimony of Officer

Thompson was not offered for the truth of the matter asserted therein, but to explain the

reasons why the officers had this particular drug transaction under observation. State v.

Jones, 598 S.W.2d 209, 223 (Tenn. 1980); State v. Barry Hill, Dickson County No. 01C01-

9004-CC-00113, 1991 WL 218288 (Tenn. Crim. App., Nashville, October 29, 1991).

Furthermore, the declarant, Donald Wallace, testified as to his conversations with the

defendant. Thus, the defendant had the benefit of testing the accuracy of Wallace’s

statements in the presence of the jury. In his own testimony, the defendant admitted

Wallace asked him for drugs which corroborates the testimony of Officer Thompson. Even

if the testimony of Officer Thompson was error, it was harmless beyond a reasonable

doubt, in light of the overwhelming guilt of the defendant. Chapman v. California, 386 U.S.

18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Fears, 659 S.W.2d 370, 378 (Tenn.

Crim. App. 1983), cert. denied, 465 U.S. 1082, 104 S.Ct. 1450, 79 L.Ed.2d 768 (1984).

There is no merit to this issue.



       In his second issue, the defendant contends that the evidence was insufficient to

support the verdict of guilty for the offense of delivery of a Schedule II controlled substance

(cocaine) less than .5 grams.



       When a jury convicts an individual of a criminal offense, the presumption of

                                              6
innocence disappears just as the sunset. Thus, the presumption of innocence is replaced

by one of guilt, so that on appeal a convicted defendant has the burden of demonstrating

that the evidence is insufficient. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). In

determining the sufficiency of the evidence, this court does not reweigh or reevaluate the

evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). On appeal, the State is

entitled to the strongest legitimate view of the evidence and all legitimate or reasonable

inferences which may be drawn therefrom. State v. Harris, 839 S.W.2d 54, 75 (Tenn.

1992). It is the appellate court’s duty to affirm the conviction if the evidence viewed under

these standards was sufficient for any rational trier of fact to have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

317, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Cazes, 875 S.W.2d 253, 259

(Tenn. 1994); Tenn. R. App. P. 13(e). This ruling is applicable to findings of guilt predicated

upon direct evidence, circumstantial evidence, or a combination of both direct and

circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.

1990).



         In conclusion, the proof before the jury implicating the defendant consisted of:

         1.   Officer Thompson of the Twenty-Fifth Judicial District Violent Crime Drug Task

Force conducted a surveillance in Henning on December 4, 1996 for possible drug

trafficking. The officer observed the defendant in the target area and thus the defendant

became a suspect.

         2.   On December 11, 1996, Officer Thompson sent the wired informant, Donald

Wallace, into the surveillance area to see if the informant could buy crack cocaine from the

defendant. This event was monitored by audiotapes and a video camera.

         3.   Officer Thompson observed the informant meet the defendant and ask the

defendant for “two stones.” The defendant entered Rosie’s Cafe, returned, and had the

informant drive him down the street. The defendant sold the crack cocaine to the informant

for two $20 bills.

         4.   The informant returned to the rest area on Highway 51 and gave the law

enforcement officers the suspected cocaine. An analysis established the substance was



                                              7
cocaine.

       5.   The defendant testified he was at Rosie’s Cafe on the date in question. The

informant pulled up in a car and inquired if the defendant had any drugs, to which the

defendant denied having any drugs or knowledge of drugs. However, the defendant went

into Rosie’s, returned, and got into the informant’s car for a ride down the street.



       Based on this proof, we find the evidence sufficient from which a rational trier of fact

could have found the defendant guilty beyond a reasonable doubt as to the offense of

delivery of a controlled substance, Schedule II, to wit: cocaine. This issue is without merit.



       The trial court’s judgment is affirmed.



                                    ________________________________________
                                    L. T. LAFFERTY, SENIOR JUDGE


CONCUR:




___________________________________
JOHN H. PEAY, JUDGE




___________________________________
DAVID G. HAYES, JUDGE




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