                                                                                       06/16/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                                April 29, 2020 Session

            STATE OF TENNESSEE v. CARDIS TERRAN BURNS

                 Appeal from the Criminal Court for Knox County
                    No. 109228 Steven Wayne Sword, Judge
                    ___________________________________

                          No. E2018-01685-CCA-R3-CD
                      ___________________________________


Defendant, Cardis Terran Burns, appeals his convictions of multiple drug offenses and
driving offenses. Defendant appealed, arguing that the trial court improperly admitted
text messages from a phone seized during a traffic stop. While the appeal was pending,
Defendant died. Counsel for Defendant filed a motion to abate ab initio. After the
release of State v. Al Mutory, 581 S.W.3d 741 (Tenn. 2019), this Court denied
Defendant’s motion and determined that the appeal should proceed despite Defendant’s
death. After our review, we affirm the judgments of the trial court but remand for entry
of a new judgment form to correct a clerical error to reflect that the conviction for
possession of methamphetamine in a drug free zone with intent to deliver (count 4)
merged with the conviction for possession of methamphetamine in a drug free zone with
intent to sell (count 3).

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and J. ROSS DYER, JJ., joined.

Andrew Pate (at motion for new trial and on appeal), and Cameron Bell (at trial),
Knoxville, Tennessee, for the appellant, Cardis Terran Burns.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott
and Kenneth Irvine, Jr., Assistant District Attorneys General, for the appellee, State of
Tennessee.


                                       OPINION
       In October of 2016, Defendant was indicted by a Knox County grand jury with
possession of heroin in a drug free zone with the intent to sell, possession of heroin in a
drug free zone with the intent to deliver, possession of methamphetamine in a drug free
zone with intent to sell, possession of methamphetamine in a drug free zone with intent to
deliver, simple possession of Alprazolam,1 simple possession of marijuana, driving on a
revoked license, and speeding. The indictment arose after a traffic stop on June 6, 2016.

       Prior to trial, Defendant filed a motion to suppress the search and seizure of two
cell phones that were found during the traffic stop—a white iPhone and a flip phone—
and the information contained on those cell phones. At a hearing on the motion to
suppress, counsel for Defendant argued that the search of the phones was unauthorized
and violated Defendant’s rights under the Confrontation Clause and that the search
warrant was invalid.

                           Hearing on the Motion to Suppress

       At the hearing on the motion to suppress, Investigator Terry Pate testified that he
was called to a traffic stop in Knoxville on June 7, 2016. When he arrived, Defendant
was in the back of a police car. Investigator Pate explained that Defendant went by the
name “Rock as a rapper.” Investigator Pate could not recall if the two cell phones at
issue had been recovered from the vehicle at the time he arrived. Investigator Pate asked
Defendant “if there was anything illegal on the phones.” Defendant told the officer that
he sold Xanax but did not make any statements regarding the ownership of the cell
phones. However, after examining the phones, Investigator Pate concluded that the
phones belonged to Defendant. The officer explained, “[I]n [the iPhone] his e-mail was
the Real Rock something, and then in the other phone someone texted him, and says,
‘Rock, do you have any poles?’ or something like that.” Investigator Pate saw
Defendant’s middle name on the iPhone, along with “photographs, like selfies, of
[Defendant].” Investigator Pate did not see Defendant’s name or nickname on the flip
phone. Investigator Pate was not sure where the phones were found, as they had already
been seized at the time he arrived on the scene.

      The trial court determined that Defendant “ha[d] no standing on the flip phone
[because] he’s contesting that it was his and sounds like the proof he’s presented is really
to say it wasn’t his.” With respect to the iPhone, the trial court determined that

       1
         The indictment originally charged Defendant with possession of Diazepam. The
indictment was amended on agreement of the parties to reflect Defendant was in possession of
Alprazolam.
                                           -2-
Defendant had standing to contest the admissibility of the information found on the
iPhone. Counsel for Defendant did not object to the introduction of the iPhone. His main
issue was “with the flip phone.” The trial court commented that the next thing to address
was the “search of the iPhone, and if we get past that, then we have to look at the 401,
403 issue on the iPhone as well as the 401, 403 issue on the flip phone.”

       Investigator Pate continued his testimony, explaining that he was assigned to the
Appalachian HIDTA2 drug-related death task force. Investigator Pate stated that he had
worked in the past with an organized crime division as a narcotics investigator and served
on the drug task force and the repeat offender squad. Officers applied for a search
warrant because Defendant was “caught with narcotics” and that led them “to believe he
was utilizing one or both of those phones to communicate to [his] customers or
suppliers.” Investigator Pate “assume[d] that he would use both phones.”

        Officers were able to use a program called Cellebrite to extract the information off
of the iPhone, but the flip phone had to be “visually examine[d]” because of the
technology on the phone. Investigator Pate admitted he did not make a disk containing
the information from the iPhone and did not recall having a disk. He explained that any
record of the information from Cellebrite for the iPhone was lost between the search and
the trial. However, Investigator Pate looked at the iPhone again prior to trial and took
photographs of some of the items found on the iPhone.

       On cross-examination Investigator Pate referred to several text messages from
June 5 and June 6 on the flip phone as follows:

       (1) “K. This is Christy. You still got some poles. I got a girl want a few.”
       (2) “I got a tool I’m trying to get rid of.”
       (3) “Yo, Rock. It’s Nate. Front me a bag, if you can.”
       (4) “This is Derek. Do you want me to work on your speakers?”
       (5) “I got bread for you, bruh.”

        Investigator Pate explained that “poles” referred to Xanax and that a “tool” was a
slang for a firearm. According to Investigator Pate, a “bag” referred to drugs, and
“bread” could either refer to money or Xanax. Investigator Pate testified that Defendant
referred to himself as “the Real Rock” on Instagram and YouTube. Investigator Pate
stated that the messages sent from the iPhone referred to the sender as “K Rock,” but the
message on the flip phone referred to someone named “Rock.”



       2
           Investigator Pate does not explain the meaning of the letters in the acronym.
                                                -3-
       Investigator Pate also reviewed items found on the iPhone. Specifically,
Investigator Pate identified one photograph that depicted an email with Defendant’s
name, “Cardis Burns,” in the sender area. Another photograph identified an email
address of “therealrock259@gmail.com.” Another photograph identified a text message
sent from the iPhone to another number stating “This is K Rock.” Another text, received
on the iPhone on June 3 said, “Rock, what it do?” The next item is an image of Samuel
L. Jackson. Beneath the image it said, “Samuel L. K Rock, [R]ock when he stepped off
the bus in Chicago.” The response to the text message was described by Investigator Pate
as “laughing face emojis.” There was also a photograph of a firearm on the iPhone. On
June 1, the iPhone received a message stating, “Bruh, I need to get at you later on.” The
person in possession of the iPhone replied, “Okay. What’s up Bro?” The next text
message indicated that the person would “come and see . . . later ‘bout some bread.”
Another text message talked about “[g]etting faded,” slang for getting drunk or high,
according to Investigator Pate. The phone also contained various “selfies” depicting
Defendant.

      At the conclusion of the hearing, the trial court commented:

      The defense argues that the information on the flip phone is not relevant,
      because it’s not his phone, and so whatever anybody is saying to whoever
      the owner of this phone is should not affect [Defendant], and so that’s sort
      of what led them in sort of the standing predicament that they had is if
      you’re saying, “It’s not my phone, “then you lose your standing to
      challenge the search of that phone, and so you’re sort of in - - in a catch-22
      there from [Defendant’s] perspective.

             And so the Court does find that the information on the flip phone in
      these text messages are certainly relevant based upon Investigator Pate’s
      testimony as to the intent to sell or deliver, and that is what [Defendant] is
      charged with, not simple possession, and so what we have from the flip
      phone - - . . . .

            There are basically five separate texts that the State wants to get into
      evidence. . . .

             Now, the State is not seeking to introduce this for the truth of the
      matter asserted . . . . What is relevant about this and the purpose the [S]tate
      is seeking to introduce it is that the receiver of that is somebody that
      someone would come to obtain narcotics, and so it - - it is relevant as to
      whoever was the owner or maintainer of this phone. So, it’s not hearsay,
      because it’s not offered to prove the truth of the matter asserted in that. It’s
                                           -4-
      offered to prove who the listener is or the person receiving the text
      message, and so that’s pretty similar on all of these.

             ....

             So I think there’s relevance there. I don’t think there’s a danger of
      unfair prejudice, ‘cause [Defendant’s] argument is that this isn’t his phone,
      and so you can make that argument all day long and say the person
      receiving these text messages is a dirty, awful drug dealer, but it’s not me,
      and so I think you lose on the relevance and the 403 on that.

             The iPhone really is - - the relevance for this iPhone stuff is all
      identity virtually, and the references to Rock throughout it. There’s no - -
      there’s nothing in here that would be, I think, a danger of unfair prejudice
      to him, ‘cause it’s all fairly benign that’s in here. It’s all about identity, and
      the language being used, or the words being used to refer to the person
      who’s the owner of the iPhone, which the state has shown to be
      [Defendant] and I think the state made mention they’re going to pull out
      certain things that I think do need to come out, . . . . .

             The rest of it really is just references to the word “bread” and
      “Rock” and “K Rock” to show identity. And so I think that - - that and the
      pictures showing who the purported owner of the phone is, is all relevant to
      establish identity of the owner of the iPhone, and then ties it into the flip
      phone by calling - - using the same nickname. So I think that’s all relevant,
      and there’s no 403 danger.

       The trial court found it “really interesting” that the images produced from the
phones at the hearing were not procured during the execution of the search warrant but
rather “were subsequently taken of the phones that the police still had in . . . their
possession.”

       The trial court took part of the motion under advisement. Specifically, the trial
court wanted to do further research on whether Investigator Pate’s action of looking at the
phone a second time, after the Cellebrite information was lost, was effectively a second
search. The trial court determined that the “essence of what [wa]s being searched here
[wa]s the electronic information stored on the phone, and that was information that had
already been seen and was still in possession of the State, not just the phone, but the
information on the phones.” The trial court determined that there was “little difference in
looking at a copy of . . . the electronic data on a phone from the Cellebrite software as
actually looking at it on the phone itself if there [h]as been no additional information or
                                            -5-
opportunity to put information on that phone.” The trial court also determined that the
text messages on the flip phone did not violate Tennessee Rule of Evidence 404(b)
because they were “probative to the intent of [Defendant] to sell and deliver the
substances that were allegedly found in his possession” and had a “high degree of
relevance” based on the time period during which they were sent and or received by the
flip phone. Additionally, the trial court determined the probative value outweighed the
danger of unfair prejudice.

      At the beginning of trial, Defendant pled guilty to simple possession of Xanax,
simple possession of marijuana, driving on a revoked license, and speeding but did not
waive his right to a jury trial with regard to those offenses. He pled not guilty to the
remaining offenses.

        At trial, Irene M. Bullard testified that she was 85 years old and had lived on
Davida Road for “[f]orty-plus years.” On June 6, 2016, she went “out to [her] mailbox to
get [her] mail, and . . . [t]his vehicle came flying into [her] driveway.” She thought the
vehicle was going to hit her car and drive through her closed garage door, but the vehicle
stopped. “Right on the heels of [the vehicle] the police pulled in.” Ms. Bullard went
inside and locked the door. When she looked out the window, “the policeman had this
person in handcuffs in the vehicle.” On cross-examination, Ms. Bullard explained that
she still drove herself and that she only wore “readers” to improve her vision.

        Sergeant Brian Bumpus of the Knoxville Police Department was working a
“traffic calming assignment on Davida Road” on June 6. He was in a marked police
cruiser and had pulled over several vehicles that day when he “made a traffic stop on a
dark green SUV” that was traveling northbound “at a rate of speed that’s significantly
higher than the posted speed limit which was 25 miles per hour.” According to radar, the
vehicle was going 48 miles per hour. As the vehicle drove past the location where
Sergeant Bumpus was parked, he “attempt[ed] a traffic stop for the speeding offense.”
Initially, the vehicle looked like it was going to slow down and turn onto Wilma Lane.
However, the vehicle did not stop, continued north, “then pull[ed] into [Ms. Bullard’s]
driveway, and then turn[ed] immediately like a hard right, like they’re blading the vehicle
away from [Sergeant Bumpus].” Sergeant Bumpus thought that the person in the vehicle
was about to run, so he exited his vehicle. Defendant got out of the SUV. Sergeant
Bumpus commanded Defendant to get back into his vehicle by yelling at him. Defendant
refused after “at least two or three verbal commands.” As Defendant was “standing by
the vehicle, his left hand - - at least a portion of his left arm [wa]s concealed by the
vehicle.” Sergeant Bumpus saw Defendant “reach into the car for something.” Sergeant
Bumpus “pulled [his] service weapon, pointed it at [Defendant], and directed him to get
back in the vehicle.” Defendant finally complied and got back into his vehicle.

                                           -6-
       At that point, Sergeant Bumpus holstered his weapon, got Defendant out of the
car, and placed Defendant in handcuffs. Sergeant Bumpus did a “pat down” of
Defendant to make sure that he did not have a weapon. Sergeant Bumpus “notice[d] that
[Defendant’s] kicking something under . . . the car.” It appeared that he was “pushing
something” with his right foot. Sergeant Bumpus discovered “a small [clear plastic] bag
of marijuana underneath the car.” The bag was slightly torn open because Defendant had
kicked it.

        Sergeant Bumpus turned Defendant toward the police cruiser and saw “another
little plastic baggie that was - - it was white at the time, or appeared to have something
white inside of it, f[a]ll from the left side of his shorts” and fall to the ground. Sergeant
Bumpus did not think it was in Defendant’s pocket but that it fell from his “groin area”
out of the bottom of his shorts. Sergeant Bumpus “observed another baggie of something
on the ground near the front of [the police cruiser]” about four or five feet away. This
bag was later determined to contain heroin and crystal methamphetamine. There were
approximately “22 hits” of heroin packaged in “small little aluminum foil squares.”

       Sergeant Bumpus called for back-up because he thought that he might need to
search the vehicle and wanted someone to keep an eye on Defendant. Officer Danielle
Wilson arrived on the scene to support Sergeant Bumpus. Investigator Pate and
Lieutenant Dusty Lane also came to the scene because they “specialize[d] in dealing with
those types of cases where somebody is manufacturing or selling narcotics . . . .”

      Defendant told Sergeant Bumpus that the white bag contained Xanax. Defendant
admitted that the marijuana and Xanax were his but denied that the third bag was his.
Defendant claimed he “was there to meet . . . somebody else, and [the third bag] must
have been his, and that the guy took off” when he saw the police lights. At some point
during the encounter, Defendant admitted that he did not have a valid driver’s license.
Defendant had two cell phones in the vehicle.

       The State introduced the videotape from the police cruiser into evidence. On the
videotape, there are no other people visible other than Defendant and Sergeant Bumpus.
As Sergeant Bumpus explained, “as [Defendant’s] vehicle enter[ed] the driveway, the
driveway’s empty. There’s no little baggie sitting there, and then as my car spins back
around, his car passes that point in the driveway, and then you see that baggie appear on
my videotape right there on the ground.” Defendant’s driver’s side window was down,
so Sergeant Bumpus believed Defendant “was trying to get rid of that stuff” even though
he did not see Defendant actually throw anything out the window. Sergeant Bumpus
admitted that he never saw Defendant in a position where he could have exerted control
over the bag found in the driveway that contained the heroin and methamphetamine.

                                            -7-
        Sergeant Bumpus testified that the Xanax and marijuana were packaged for
personal use but that the heroin and crystal methamphetamine were packed for resale in
“corner baggies” and foil packets inside a sandwich bag. Sergeant Bumpus explained
that the bag containing the methamphetamine and heroin was in “rough shape” so after it
was seized he repackaged it prior to sending it to the Tennessee Bureau of Investigation
for testing.

        Donna Roach, with the Knoxville/Knox County Geographic Information Systems
(“KGIS”) testified that the location of the traffic stop was 572 feet from Wallace
Memorial Child Care Center, based on the accuracy of the maps, which are “accurate for
a foot for every 100 feet” or plus or minus ten feet per 1000 feet.

       Investigator Pate testified at trial as an expert in drug investigations. He also
responded to the scene of the arrest. He testified that the amount and the packaging of
the heroin was consistent with what he had been trained to recognize as possession by a
drug dealer who intended to sell the drugs, rather than possession by a user.
Additionally, Investigator Pate determined that the amount of methamphetamine found at
the scene was consistent with possession by a dealer rather than a user.

        With regard to the two cell phones found at the scene, Investigator Pate explained
that drug dealers often utilized two cell phones, a higher-end phone for personal use and a
“burner” phone for drug transactions that could be discarded. Investigator Pate
explained, “[o]ne phone, he would try to keep clean, as far as illegal activity. The other
one, it really doesn’t matter, because [he] can just throw it away if [he] ha[d] to, and they
would conduct their illegal activity on it.” Investigator Pate did not testify on direct
examination about the contents of the cell phones recovered from the vehicle at the scene.

        On cross-examination, counsel for Defendant asked Investigator Pate specifics
about the text messages on the phones. Investigator Pate admitted that he did not find
any specific references to heroin or methamphetamine on either phone. However, he
testified that drug dealers often use slang terms to refer to drugs. He recalled a text
message on the flip phone related to “poles.” Investigator Pate explained that “poles”
referred to Xanax and that Defendant admitted the Xanax found at the scene belonged to
him. On redirect, the State introduced text messages received by the flip phone that
appeared to request drugs. Investigator Pate explained that Defendant’s full name did not
appear anywhere on the flip phone. Investigator Pate explained that there were text
messages addressed to “Rock,” and “K Rock” on both the iPhone and the flip phone and
that Defendant’s online rap videos also referred to him in the same manner. Investigator
Pate explained that the flip phone only contained messages from the past few days but
that this was consistent with the manner in which flip phones were used. On redirect

                                            -8-
examination, the State introduced the screen shots from the text messages found on both
phones into evidence.

        A TBI representative testified that the drugs recovered from the scene included the
bag of marijuana weighing 1.47 grams, the bag of Xanax weighing .74 grams, the
methamphetamine weighing 5.6 grams, and the bag containing 22 individually wrapped
hits of heroin weighing approximately 3.24 grams (including the packaging). The heroin
had a street value of $440 to $660.

       Gary Lamb, a private investigator, testified on behalf of Defendant. He explained
that he was familiar with the area near where Defendant was arrested because he had
worked “[h]eroin conspiracy[y], drug dealing cases” in that area at hotels including the
America Best, the Econo Lodge, the Super 8, and Motel 6. According to Mr. Lamb, the
area near Defendant’s arrest is “one of the more dense areas” of drug crime in Knoxville.

       At the conclusion of the proof, the jury found Defendant guilty of possession of
heroin with the intent to sell in a drug free zone. The jury assessed a $60,000 fine. The
jury found Defendant guilty of possession of heroin with intent to deliver in a drug free
zone, and affixed another $60,000 fine. The jury found Defendant guilty of both
possession of methamphetamine with intent to sell and possession of methamphetamine
with intent to deliver in a drug free zone. The jury affixed a $40,000 fine for each of
these convictions. The jury found Defendant guilty of simple possession of both
Alzapram and marijuana. The jury affixed a $1250 fine for each of these convictions.
Defendant was found guilty of violating the driver’s license law and speeding. For these
convictions, the jury affixed fines of $250 and $50, respectively.

       After a sentencing hearing, the trial court sentenced Defendant to twelve years and
reduced the jury imposed fine to $2000 in fines for each conviction involving heroin.
The trial court merged the conviction for possession of heroin within a drug free zone
with intent to deliver, with the conviction for possession of heroin in a drug free zone
with intent to sell. The trial court sentenced Defendant to ten years and reduced the jury
imposed fine to $2000 for each conviction involving methamphetamine. The trial court
merged the conviction for possession of methamphetamine in a drug free zone with intent
to deliver with the conviction for possession of methamphetamine in a drug free zone
with intent to sell.3 Defendant was sentenced to eleven months and twenty-nine days for

       3
          We note that the judgment form for the conviction for possession of methamphetamine
in a drug free zone with intent to deliver (count 4), states the following in the “Special
Conditions” box: “MERGES BY OPERATION OF LAW WITH COUNT 4.” This is clearly a
clerical error. On remand, the trial court should enter a new judgment form to correct the clerical
error, reflecting that the conviction for possession of methamphetamine in a drug free zone
                                               -9-
the conviction for simple possession of Alprazalam and the trial court assessed a $750
fine. For the conviction for simple possession of marijuana, Defendant was sentenced to
eleven months and twenty-nine days and the trial court assessed a $250 fine. Defendant
was sentenced to thirty days for the conviction for violation of the driver’s license law
and thirty days for the conviction for speeding. The trial court aligned all of the
sentences concurrently with one another, for an effective sentence of twelve years, at
one-hundred percent, as a Range II offender, and $5,000 in total fines.

        In a timely motion for new trial, Defendant challenged several aspects of the trial,
including the trial court’s denial of the motion to suppress and the trial court’s
determination that the text messages on the cell phones were admissible. An amended
motion for new trial claimed that the State did not authenticate the text messages. The
trial court denied the motion for new trial. The notice of appeal was filed in September
of 2018.

       On February 1, 2019, counsel for Defendant filed a motion to abate ab initio based
on Defendant’s death on December 16, 2018. The State responded to the motion, arguing
that Defendant’s appeal should be dismissed but objecting to the request that the
prosecution be abated ab initio. On September 18, 2019, this Court issued an order
denying the motion to abate. Citing State v. Al Mutory, 581 S.W.3d 741 (Tenn. 2019),
this Court cautioned counsel for Defendant and the State that unless one of the parties
could “satisfactorily demonstrate to this court that this appeal shall continue in light of
some viable interest, ‘be it an interest of the defendant’s family, the victim’s family, or
society,’ this appeal will be dismissed.” This Court ordered the parties to “file a response
with appropriate reference to post-judgment facts in accordance with Rule 14.” Counsel
for Defendant filed a response asserting that the appeal should be allowed to proceed
because there was a societal interest in resolution of an issue of first impression
concerning the authentication and hearsay rules governing the admission of text messages
from unknown sources and an interest of Defendant’s family concerning the imposition
of $3,000 in fines in this matter.4 This Court determined that counsel for Defendant had
established a sufficient basis to permit the appeal to proceed.

                                          Analysis




(count 4) with intent to deliver merged with the conviction for possession of methamphetamine
in a drug free zone with intent to sell (count 3).
        4
          The judgments and the sentencing hearing transcript reflect total fines of $5,000.
Nothing in the record indicates that efforts have been made to collect these fines from
Defendant’s family.
                                           - 10 -
        On appeal, Defendant argues: (1) that the “State failed to authenticate the text
messages, rendering them inadmissible;” (2) that the text messages were hearsay and did
not fit within any of the exceptions to Tennessee Rule of Evidence 803; and (3) that the
trial court’s improper admission of the text messages was harmful error. The State, on
the other hand, argues that Defendant has waived any issue with regard to the
authentication of the text messages because he has raised that issue for the first time on
appeal. Moreover, the State argues Defendant was the first to introduce the contents of
the text messages to the jury and that the State only introduced the text messages after
cross-examination of Investigator Pate by counsel for Defendant. Finally, the State
argues that Defendant is not entitled to plain error relief of this issue and that it is not a
matter of first impression.

        At the outset, we note that Defendant has raised the issue with regard to
authentication of the text messages for the first time on appeal. Citing this as an issue of
first impression in Tennessee, Defendant relies on cases from various jurisdictions to
support his argument. Ordinarily, issues raised for the first time on appeal are waived.
An appellate court will not consider an issue raised for the first time in the appellate
court. Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983); State v. Alvarado, 961
S.W.2d 136, 153 (Tenn. Crim. App. 1996); See Tenn. R. App. P. 36(a). Additionally, a
defendant cannot litigate an issue in the trial court on one ground, abandon that ground,
and assert a new basis or ground for his argument in this Court. State v. Matthews, 805
S.W.2d 776, 781 (Tenn. Crim. App. 1990); State v. Aucoin, 756 S.W.2d 705, 715 (Tenn.
Crim. App. 1988); State v. Brock, 678 S.W.2d 486, 489-90 (Tenn. Crim. App. 1984).

       In the motion to suppress, Defendant objected to the introduction of the contents
of the cell phones because they were unlawfully searched. At the hearing, however,
Defendant argued that he did not own the flip phone, so anything on it was irrelevant and
inadmissible hearsay. Immediately prior to trial, Defendant advanced yet another
argument with regard to the admissibility of the text messages, arguing that the text
messages on the flip phone should be excluded as evidence of bad acts. In our review of
the record, we fail to find any argument by Defendant that the messages lacked
authentication. This issue is waived.

       Moreover, the State did not introduce the contents of the text messages until
counsel for Defendant questioned Investigator Pate about the content of the messages
found on the phone. Counsel for Defendant asked Investigator Pate if he saw “a single
text with one of those – any of those street terms referring to heroin or meth in there?”
Counsel also asked if there was a search warrant obtained to search the phones because
officers “expect[ed] to find proof of drug sales in those phones.” On redirect, the State
admitted the text messages from both phones into evidence. By asking questions about
the specific content of the messages, counsel for Defendant effectively opened the door to
                                            - 11 -
allow the State to move for the admission of the text messages. See Tenn. R. App. P.
36(a); see also Tenn. R. App. P. 36, Advisory Comm’n Cmt. (“The last sentence of this
rule is a statement of the accepted principle that a party is not entitled to relief if the party
invited error, waived an error, or failed to take whatever steps were reasonably available
to cure an error.”). Defendant is not entitled to relief on this issue.

                                          Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed and
remanded. On remand, the trial court should enter a new judgment form to correct a
clerical error to reflect that the conviction for possession of methamphetamine in a drug
free zone with intent to deliver (count 4) merged with the conviction for possession of
methamphetamine in a drug free zone with intent to sell (count 3).
.


                                                            ___________________________
                                                            TIMOTHY L. EASTER, JUDGE




                                             - 12 -
