         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 26, 2002

                   STATE OF TENNESSEE v. TRACY FARRELL

                    Appeal from the Criminal Court for McMinn County
                  No. 00-360 thru 00-369 & 00-560  Carroll L. Ross, Judge



                                 No. E2001-01199-CCA-R3-CD
                                         May 21, 2002

The defendant, Tracy Farrell, appeals from his eleven drug convictions rendered by a McMinn
County Criminal Court jury. On appeal he challenges the trial court’s failure to grant a severance
of offenses. We have determined that the trial court did not abuse its discretion in denying the
motion to sever offenses, and we affirm the conviction judgments.

                Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
ROBERT W. WEDEMEYER , JJ., joined.

William A. Buckley, Jr. (at trial), William Donaldson and Julie A. Rice (on appeal), for the
Appellant, Tracy Farrell.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
Jerry N. Estes, District Attorney General; and Shari Tayloe, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                            OPINION


                The defendant was charged and convicted as follows:

       Count:          Offense Date:          Charge:                        Conviction:

          1             Jan. 13, 2000          Sale of Schedule II              Same

          2             Jan. 14, 2000          Sale of Schedule II              Same

          3             Jan. 18, 2000          Sale of Schedule II              Same
          4             Jan. 18, 2000         Sale of Schedule VI              Same

          5             Jan. 19, 2000         Possession for sale of            Same
                                              Schedule II

          6             Jan. 19, 2000         Possession for sale              Same
                                              Schedule VI

          7             Jan. 19, 2000         Possession for sale              Same
                                              Schedule II

          8             Jan. 19, 2000         Possession for sale              Simple Possession
                                              Schedule IV                      Schedule IV

          9             Jan. 19, 2000         Simple Possession of             Same
                                              Schedule IV

         10             Jan. 19, 2000         Simple Possession                 Same
                                              Schedule IV

Separate indictment     Jan. 19, 2000         Possession for sale               Simple Possession
                                              Schedule I                        of Schedule I

The defendant received an effective sentence of ten years in the Department of Correction and an
aggregate fine of $27,000. On appeal, he challenges only the trial court’s denial of his pretrial
motion to sever counts 1, 2, 3, and 4 from each other and from any and all other counts of the
indictments for purposes of trial.

               The trial court conducted a pretrial hearing on the motion to sever and the state’s
motion to consolidate for trial the offenses charged in the two separate indictments. At the hearing,
Tennessee Bureau of Investigation Agent Mike Finley testified that he orchestrated an undercover
operation that used a confidential informant to purchase controlled substances from the defendant.
On January 13, 2000 the informant went to the defendant’s residence and purchased amphetamine,
a Schedule II controlled substance, that resulted in the defendant being charged in count 1 of the
indictment. On January 14, 2000, the informant again went to the defendant’s residence and
purchased cocaine, a Schedule II controlled substance, which resulted in the defendant being charged
in count 2 of the indictment. On January 14, 2000, the informant again went to the defendant’s
residence and purchased methamphetamine, a Schedule II controlled substance, and marijuana, a
Schedule VI controlled substance, resulting in the defendant being charged in counts 3 and 4 of the
indictment. Agent Finley further testified that, on the basis of these three controlled purchases of
drugs, he obtained a warrant to search the defendant’s residence. The warrant was executed on
January 19, 2000 and resulted in the discovery of methamphetamine (Schedule II), marijuana
(Schedule VI), cocaine (Schedule II), diazepam (Schedule IV), lorazepam (Schedule IV), alprazolam

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(Schedule IV), and methylenedioxymethamphetamine (Schedule I). The defendant’s possession of
these controlled substances in his home on January 19, 2000 resulted, respectively, in counts 5
through 10 of the first indictment and the single count of the second indictment. Agent Finley
testified at the hearing that all of the controlled drug purchases carried out on January 13, 14, and
18, 2000 were routine and none was distinguishable from any of the others, except that by design
the informant purchased a different type of drug on each of the three occasions. The confidential
informant was wired with a transmitter that allowed Agent Finley to overhear and record
conversations among the informant and other persons at the defendant’s residence. Agent Finley,
who had previously been acquainted with the defendant and who spoke with the defendant during
the January 19 execution of the search warrant, testified that the defendant’s voice was recorded
during each of the three transactions with the confidential informant.

                 At the hearing on the defendant’s motion to sever and the state’s motion to
consolidate, the state argued that the evidence of the three controlled buys should be admissible in
a trial of the January 19 possession offenses in order to establish that on January 19 the defendant
possessed controlled substances with the intent to sell them. The trial court agreed, denied the
motion for severance, and consolidated the two indictments for trial. The defendant was then tried
before a jury in a joint trial of all counts. The jury convicted him of the charged offenses, except for
count 8 and the single count in the second indictment, where the jury convicted the defendant of the
lesser-included offenses of simple possession.

                We review the trial court’s denial of the defendant’s motion to sever offenses for an
abuse of discretion. Spicer v. State, 12 S.W.3d 438, 442 (Tenn. 2000); State v. Shirley, 6 S.W.3d
243, 247 (Tenn. 1999). Accordingly, the trial court’s decision to deny the severance will not be
reversed unless that court misapplied a legal standard or reached a conclusion that defies logic or
resulted in an injustice to the aggrieved party. Spicer, 12 S.W.3d at 443. Typically, “evidence and
arguments tending to establish or negate the propriety of consolidation [or severance] must be
presented to the trial court in the hearing” on a pretrial motion. Id. at 445. “[B]ecause the trial
court’s decision of whether to consolidate offenses is determined from the evidence presented at the
hearing, appellate courts should usually only look to that evidence, along with the trial court’s
findings of fact and conclusions of law, to determine whether the trial court abused its discretion by
improperly joining the offenses.” Id.; see Shirley, 6 S.W.3d at 247.

                 On one hand, trial courts are permitted to join offenses for trial if “the offenses
constitute parts of a common scheme or plan or if they are of the same or similar character.” Tenn.
R. Crim. P. 8(b). On the other hand, if two or more offenses have been joined or consolidated for
trial pursuant to Rule 8(b), “the defendant shall have a right to a severance of the offenses unless the
offenses are part of a common scheme or plan and the evidence of one would be admissible upon
the trial of the others.” Id. 14(b)(1) (emphasis added).

                In order to determine whether “evidence of one would be admissible upon the trial
of the others,” courts look to the provisions of Tennessee Rule of Evidence 404, which governs the
use of character evidence. Generally, “[e]vidence of a person’s character or trait of character is not

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admissible for the purpose of proving action in conformity with the character or trait on a particular
occasion.” Tenn. R. Evid. 404(a). Evidence of “other crimes, wrongs, or acts,” however, may be
admissible for other purposes such as proving identity, criminal intent, or rebuttal of accident or
mistake. Id. at 404(b); Tenn. R. Evid. 404, Advisory Comm’n Comments; State v. Hallock, 875
S.W.2d 285, 292 (Tenn. 1993). To determine whether evidence of other crimes, wrongs or acts is
admissible under Rule 404(b), for a purpose other than to prove that the person acted in conformity
with a character trait, the trial court must determine whether “a material issue exists other than
conduct conforming with a character trait,” and the court “must exclude the evidence if its probative
value is outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 404(b).

                 Pursuant to Rule of Criminal Procedure 14(b)(1), the state cannot defeat the
defendant’s right to severance of offenses if evidence of one offense would be inadmissible upon
trial of the others pursuant to Evidence Rule 404(b) or if the offenses are not part of a common
scheme or plan. Our courts have defined “common scheme or plan” evidence as “(1) offenses that
reveal a distinctive design or are so similar as to constitute ‘signature’ crimes; (2) offenses that are
part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the same criminal
transaction.” Shirley, 6 S.W.3d at 248. In the present case, the parties at least implicitly agree that
the evidence supporting counts one through four falls within the second category.

                We take care to note that evidence of a defendant’s other bad acts would not be
admissible under Rule 404(b) merely because it bespeaks a common scheme or plan. See State v.
Moore, 6 S.W.3d 235, 239 (Tenn. 1999). To the contrary, our law requires that, to be admissible,
Rule 404(b) evidence must be relevant to a material issue at trial, such as identity, intent, or absence
of mistake or accident. See State v. Joe N. Anderson, No. E1998-00378-CCA-R3-CD, concurring
op. at 1 (Tenn. Crim. App., Knoxville, Dec. 7, 1999) (Witt, J., concurring).1

                Therefore, the court may not deny a severance pursuant to Tennessee Rule of
Criminal Procedure 14(b)(1) unless it concludes “from the evidence and arguments presented at the
hearing that: (1) the multiple offenses constitute parts of a common scheme or plan; (2) evidence of
each offense is relevant to some material issue in the trial of the other offenses; and (3) the probative
value of the evidence of other offenses is not outweighed by the prejudicial effect admission of the
evidence would have on the defendant.” Spicer, 12 S.W.3d at 445 (internal citations omitted).



         1
                    Character-type evidence o f a common scheme or plan is inadmissible unless it is otherwise relevant
to a material issue. For instance, evidence of a signature-type commo n scheme or plan is often useful to identify a
defendant as the p erpetrator o f a sign ature offen se by show ing th rough o ther identification evidence that he was the
perpetrator of another offense bearing the same “signature.” See M oore, 6 S.W.3d at 239. Were this not the rule, the
state could defeat an exercise of the defendant’s Rule 14(b)(1) right to severance by merely showing that the evidence
is part of a common scheme or plan; no t only wo uld a com mo n sch em e or p lan satisfy that explicit pron g of Rule
14(b)(1), but it would also bootstrap the state into a showing that the evidence via common scheme or plan would be
adm issible in both or all of the offenses at issue.




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                With these principles in mind, we examine the defendant’s claim that the trial court
erred when it denied his motion to sever counts 1, 2, 3, and 4 from each other and from the
remaining counts of the indictments. Counts 5 through 10 of the first indictment and the single
count of the second indictment are based upon evidence found in the defendant’s residence when the
warranted search was carried out. Some of these counts contained allegations that the contraband
was possessed by the defendant with the intent to sell or deliver it. Thus, the defendant’s intent in
possessing the contraband at his home is material to the issues at trial. See Tenn. Code Ann. § 39-
17-417(a)(4) (Supp. 2001) (proscribing the possession of a controlled substance with the intent to
manufacture, deliver or sell such controlled substance).

                It is basic law that intent may be shown -- and often must be shown, if at all -- by
circumstantial evidence. See, e.g., State v. Bush, 942 S.W.2d 489, 501 (Tenn. 1997); State v.
Chrisman, 885 S.W.2d 834, 838 (Tenn. Crim. App. 1994); State v. Burkley, 804 S.W.2d 458, 460
(Tenn. Crim. App. 1990). In the hearing on the motion to sever, the state posited that it needed
evidence of the defendant’s drug sales on January 13, 14 and 18, 2000 as a means of showing that
the defendant possessed other drugs on January 19 with the intent to sell them. This court has
previously held that evidence of drug sales is relevant to the question of whether another possession
of drugs was with the intent of sale. See State v. Johnny Wayne Tillery, No. 01C01-9506-CC-00182,
slip op. at 17 (Tenn. Crim. App., Nashville, Mar. 30, 1998). Thus, in this case, we believe that
evidence of the January 13, 14 and 18 sales was relevant to the material issue of whether the
defendant intended to sell the drugs found in his home on January 19.

                Furthermore, in our view the prejudicial effect of the evidence of drug sales did not
outweigh the probative value. The evidence of each sale in counts 1 through 4 was very similar to
the evidence in each of the other sales, and it is doubtful that the inclusion of evidence of more than
one such sale created an unfair risk of conviction of any sale. Each sale depended upon the
credibility of Agent Finley. For much the same reasons, we believe the probative value of the
evidence of the sales outweighed any prejudice to the defendant on the possession counts. Our
conclusion is born out by the jury’s reaction to the proof at trial. In two counts charging that the
defendant possessed drugs on January 19, 2000 with the intent to sell them, the jury acquitted him
of possession with intent to sell and convicted him of the lesser-included offenses of simple
possession.

               Accordingly, we find no abuse of discretion in the trial court’s denial of the motion
to suppress and we affirm the judgments of the trial court.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE



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