        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 June 21, 2011 Session

        STATE OF TENNESSEE v. ANTONIO DWAYNE JOHNSON

           Direct Appeal from the Circuit Court for Montgomery County
                     No. 40900303 John H. Gasaway, Judge




                 No. M2010-02086-CCA-R3-CD - Filed May 25, 2012


A Montgomery County Grand Jury returned an indictment against Defendant, Antonio
Dwayne Johnson, for six counts of selling .5 grams or more of cocaine and six counts of
delivering .5 grams or more of cocaine. Following a jury trial on counts nine and ten of the
indictment (alternate theories of selling and delivering .5 grams of cocaine on August 22,
2008) Defendant was found guilty of selling more than .5 grams of cocaine. The remaining
counts of the indictment were apparently tried separately. The trial court sentenced
Defendant as a Multiple Offender to twelve years at 35% in the Department of Correction.
On appeal, Defendant argues that the evidence was insufficient to support his conviction.
After a thorough review, we affirm the judgment of the trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
PJ., and C AMILLE R. M CM ULLEN, J., joined.

Stephen Mills, Nashville, Tennessee (on appeal), and Roger Eric Nell, District Public
Defender; and Charles S. Bloodworth, Assistant Public Defender, Clarksville, Tennessee (at
trial) and for the appellant, Antonio Dwayne Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and John Finklea, Assistant
District Attorney General; for the appellee, the State of Tennessee




                                        OPINION
I. Background

        Anthony Botts testified that he previously worked as a paid confidential informant for
the Clarksville Police Department Major Crimes Unit. On August 22, 2008, he participated
in a controlled drug purchase from Defendant. Early that evening, he met with officers from
the Clarksville Police Department, including Agent William Evans, who searched him and
his vehicle, and Agent Evans placed a recording device or “wire” on him. Mr. Botts testified
that he called Defendant, whom he referred to as “Big Dog,” and asked about buying some
“dope.” Defendant thought that he meant powder cocaine and said that he did not have any.
Mr. Botts then “referred to the hard, being crack cocaine,” and Defendant indicated that he
had some of that. Mr. Botts asked Defendant the price of the cocaine, and Defendant said
that they would discuss it in person. He told Defendant that he was still at work and would
need approximately forty-five minutes before meeting with Defendant.

        Mr. Botts testified that he called Defendant forty-five minutes to an hour later to
arrange a meeting. Defendant then instructed him to drive to Caldwell Lane. However, Mr.
Botts did not feel comfortable meeting there, so they changed the location to Roberts Street.
Mr. Botts then drove to a blue metal building/boat shop on the 41-A By Pass, near its
intersection with Roberts Street. Defendant was not there when Mr. Botts arrived, so he
placed a couple of calls to Defendant. Mr. Botts testified that because his cell phone
reception was bad, several of the calls were dropped. He eventually talked with Defendant
who said that he was behind the building. They made arrangements for Mr. Botts to drive
around the building onto Roberts Street. Mr. Botts testified that as he was driving down the
street, he saw Defendant walking on the side of the street wearing a white t-shirt and blue
jeans and carrying a styrofoam food box . Defendant approached the driver’s side window,
but Mr. Botts told him that the window would not roll down. Defendant walked to the
passenger’s side, opened the door, leaned in, and handed Mr. Botts the styrofoam box
containing the controlled substance. Mr. Botts then handed Defendant $175. Mr. Botts
testified that he and Defendant made small talk and that he looked in the container to make
sure that it contained the drugs. Defendant walked away from the car, and Mr. Botts drove
back to the “meet spot” and met agent Evans. He gave Agent Evans the styrofoam container
and drugs, and he and his vehicle were again searched. Mr. Botts admitted that at the time
of the transaction, he had been convicted of a sexual offense and was on the TBI’s sex
offender registry.

       Agent William Thomas Evans, a drug agent with the Major Crimes Unit, testified that
on August 22, 2008, he participated in a controlled drug buy involving Defendant. He and
other agents met Anthony Botts at a predetermined location. Agent Evans searched Mr.
Botts and his vehicle, and Mr. Botts and his vehicle were wired. Mr. Botts was then given
$307 in buy money from the drug fund to make the purchase. Agent Evans testified that Mr.
Botts called Defendant and that the conversation was recorded. The tape of the conversation

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was played for the jury, and Defendant indicated that he had some “hard hard,” which is
slang for crack cocaine. Agent Evans also explained that “ball” is slang for an “eight ball”
or an eighth of an ounce of crack cocaine or cocaine. He said that an “eight ball” was
approximately 3.5 grams of cocaine and may cost between $75 to $250, which “really varies
of how much product is actually in the City right now.” Agent Evans estimated that the
typical amount of cocaine taken from someone using the drug was .1 to .3 grams, and the
cost was “[roughly] ten dollars every tenth of a gram.” He identified Mr. Botts’ and
Defendant’s voices on the phone call recording.

       Agent Evans testified that he then followed Mr. Botts to a blue building near the
intersection of 41-A By-Pass and Roberts Street. He and other agents maintained both audio
and visual contact with Mr. Botts. Agent Evans testified that Mr. Botts initially parked on
the right side of the blue building. He said:

       [Mr. Botts] first parked outside to where you could still see him from the By-
       Pass. Several phone calls were attempted, they were dropping, it was kind of
       a bad area for cell phone service. At one point, I did hear him outside the
       vehicle. Agents advised he was outside the vehicle. Attempted a few more
       phone calls and for the most part were dropping, I don’t know if it was Mr.
       Johnson’s phone or if it was Mr. Botts’ phone causing the problem. Shortly
       thereafter, he did get back in his vehicle and I was advised then he turned onto
       the By-Pass, a distance of maybe a hundred, a hundred and fifty feet and then
       turned on to Roberts Street and was headed up - - it is a small hill, headed
       away from the By-Pass.

Agent Evans testified that after the transaction, Defendant walked away, and Mr. Botts
turned around and drove back to the predetermined location. Agent Evans testified that Mr.
Botts was under constant surveillance until he arrived back at the location. Agent Evans then
took possession of the styrofoam box containing what appeared to be crack cocaine, and he
searched Mr. Botts and his vehicle. He also received $132 back from Mr. Botts, which was
the amount of the “buy money” not used by Mr. Botts.

        Agent Evans testified that the styrofoam box contained a plastic bag with “a white
crystalline rock like substance, which appeared to be consistent with crack cocaine.” He
field-tested the substance, and placed it in a film canister. The styrofoam box with the
aluminum still in it was packaged in a larger brown bag. Agent Evans then placed the items
in the police department’s evidence drop box. Agent Evans acknowledged that at the time
of the purchase, Mr. Botts was a registered sex offender. He was also on probation and wore
an electronic ankle bracelet to monitor his whereabouts.




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        Shaunna Allman, supervisor of the evidence room for the Clarksville Police
Department, testified that the items were checked into evidence from the drop box and then
sent to the Tennessee Bureau of Investigation (TBI) for analysis.

       Sergeant David O’Dell testified that he was working as a narcotics investigator for the
Major Crimes Unit on August 22, 2008, and participated in the drug buy by conducting
surveillance. He was positioned on the 41-A By-Pass near “the Old Task Force
Headquarters, right by Edmondson Ferry and Roberts Avenue [sic].” He used a digital
camera to take photographs and video of the transaction. Sergeant O’Dell saw Defendant
walking down Roberts Street from the “Caldwell Lane area, Maddox Circle area, walking
down towards the By-Pass.” He took a photograph of Defendant with a white styrofoam
container in his hand. Defendant was wearing a white t-shirt and long blue jean shorts.
Sergeant O’Dell testified that he observed Defendant approach Mr. Botts’ vehicle. He said
that Defendant did not have the styrofoam box when he left the area.

        Agent Joey Williamson testified that he also participated in the controlled buy on
August 22, 2008. He conducted surveillance from a building directly across from Roberts
Street. Agent Williams saw Defendant walking down Roberts Street wearing a white t-shirt
and jean shorts. He also saw Defendant carrying a white container. Agent Williamson
testified that he observed Defendant lean into the passenger’s side of Mr. Botts’ car. Agent
Williamson then drove down the By-Pass toward Avondale, turned around, and drove back
to the area of Roberts Street. He saw Defendant walking back up Roberts Street
approximately ten to fifteen yards from Mr. Botts’ vehicle. Defendant was no longer
carrying the container.

       Special Agent forensic scientist Patti Choate of the TBI testified that she analyzed the
rock-like substance in the present case and determined that it contained 1.4 grams of cocaine,
a Schedule II controlled substance.

II. Analysis

        Initially, we will address the State’s argument that this Court should dismiss the
appeal because Defendant failed to establish that he timely filed a notice of appeal. A notice
of appeal must be filed within thirty days after the date of entry of the judgment from which
the Defendant is appealing. Tenn. R. App. P. 4(a). A notice of appeal is non-jurisdictional,
and the requirement for a timely notice may be waived in the interest of justice. Id. The time
for filing a notice of appeal is tolled by the timely filing of a post-trial motion for judgment
of acquittal, new trial, or arrest of judgment. Tenn. R. App. P. 4(c).

      The record in this case shows that the judgment was entered on May 11, 2010, and
Defendant’s notice of appeal was filed on September 29, 2010. The record also contains an

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order denying Defendant’s motion for new trial. The order indicates that the hearing on the
motion was held on September 1, 2010, and the order was filed on October 4, 2010. There
is no copy of the motion for new trial in the record or nothing else to indicate when the
motion was filed or that it was filed within thirty days of the judgment. Therefore, we will
presume it was not timely filed, resulting in an untimely notice of appeal.

        However, we waive the timely filing of the notice of appeal in the interest of justice
since the only issue raised by Defendant in this case is the sufficiency of the evidence, which
is an issue that does not need to be presented in a motion for new trial in order to be heard
on appeal. See State v. Boxley, 76 S.W.3d 381, 390 (Tenn. Crim. App. 2001).

                                  Sufficiency of the Evidence

      Defendant argues that the evidence presented at trial was insufficient to support his
conviction for selling more than .5 grams of cocaine because the Mr. Botts, the confidential
informant, was not credible. We disagree.

        Tennessee Rule of Appellate Procedure 13(e) prescribes that “[f]indings of guilt in
criminal actions whether by the trial court or jury shall be set aside if the evidence is
insufficient to support the finding by the trier of fact of guilt beyond a reasonable doubt.” A
convicted criminal defendant who challenges the sufficiency of the evidence on appeal bears
the burden of demonstrating why the evidence is insufficient to support the verdict, because
a verdict of guilt destroys the presumption of innocence and imposes a presumption of guilt.
See State v. Evans, 108 S.W.3d 231, 237 (Tenn. 2003); State v. Carruthers, 35 S.W.3d 516,
557–58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). This Court must
reject a convicted criminal defendant’s challenge to the sufficiency of the evidence if, after
considering the evidence in a light most favorable to the prosecution, we determine that any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Hall, 8 S.W.3d 593, 599
(Tenn. 1999).

        On appeal, the State is entitled to the strongest legitimate view of the evidence and all
reasonable and legitimate inferences which may be drawn therefrom. See Carruthers, 35
S.W.3d at 558; Hall, 8 S.W.3d at 599. A guilty verdict by the trier of fact accredits the
testimony of the State’s witnesses and resolves all conflicts in the evidence in favor of the
prosecution’s theory. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Questions
about the credibility of witnesses, the weight and value of the evidence, as well as all factual
issues raised by the evidence are resolved by the trier of fact, and this Court will not re-weigh
or re-evaluate the evidence. See Evans, 108 S.W.3d at 236; Bland, 958 S.W.2d at 659. Nor
will this Court substitute its own inferences drawn from circumstantial evidence for those
drawn by the trier of fact. See Evans, 108 S.W.3d at 236–37; Carruthers, 35 S.W.3d at 557.

                                               -5-
       Defendant was convicted of selling .5 grams or more of cocaine, a Schedule II
controlled substance, a Class B felony. T.C.A. § 39-17-408(b)(4); § 39-17-417 (c)(1). Under
our criminal code, “[i]t is an offense for a defendant to knowingly . . . [s]ell a controlled
substance.” T.C.A. § 39-17-417(a)(3). In this case, the proof shows that on August 22,
2008, Anthony Botts, a confidential informant, met agents of the Clarksville Police
Department’s Major Crimes Unit at a predetermined location to make a controlled drug
purchase from Defendant. Mr. Botts and his vehicle were searched, and he and the vehicle
were wired with a recording device. The wire device also transmitted his conversations to
officers who monitored the transaction in real time. Mr. Botts placed a recorded call to
Defendant and asked about buying some “dope.” Defendant indicated that he had some
crack cocaine and that he and Mr. Botts would discuss the price in person. He also instructed
Mr. Botts to meet him at a location on Caldwell Lane; however, Mr. Botts did not feel
comfortable meeting there, so they changed the location to Roberts Street.

        Mr. Botts then drove to a blue metal building on the corner of Roberts Street near the
41-A By-Pass. Defendant was not there when Mr. Botts arrived so Mr. Botts placed several
phones call to him, some of which were dropped due to poor reception. He eventually
contacted Defendant who said that he was behind the building. Mr. Botts then drove around
the building onto Roberts Street, and he saw Defendant walking down the street carrying a
white styrofoam food container. Defendant walked to the passenger’s side of the car, opened
the door, leaned in, and handed Mr. Botts the styrofoam box containing the drugs. Mr. Botts
then gave Defendant $175.00. Mr. Botts testified that he looked in the container to verify
that the drugs were there and then drove back to the “meet spot.” He gave Agent Evans the
styrofoam container and drugs, and he and his vehicle were again searched. The rock-like
substance in the container was later analyzed and determined to be 1.4 grams of cocaine.

        Mr. Botts’ testimony in this case was corroborated by agents of the Major Crimes
Unit. Agent Evans testified that he searched Mr. Botts and his vehicle and wired both with
a recording device. He also gave Mr. Botts $307.00 from the drug fund to make the buy.
Agent Evans testified that Mr. Botts called Defendant, and the conversation was recorded.
In the conversation, Defendant used slang for crack cocaine. Agent Evans testified that he
followed Mr. Botts to the blue building near the By-Pass and Roberts Street, and he and other
agents maintained both audio and visual contact with Mr. Botts. He said that Defendant
walked away after the transaction and that Mr. Botts drove back to the predetermined
location. Agent Evans said that Defendant was under constant surveillance until he arrived
back at the location. He took possession of the styrofoam box containing what appeared to
be crack cocaine, and he again searched Mr. Botts and the vehicle. He also received
$132.00 back from Mr. Botts from the buy money.

       Sergeant David O’Dell testified that he used a digital camera to take photographs and
video of the transaction. He saw Defendant walking down Roberts Street from the “Caldwell

                                             -6-
Lane area, Maddox Circle area, walking down towards the By-Pass.” Sergeant O’Dell took
a photograph of Defendant with the styrofoam container in his hand. He observed Defendant
approach Mr. Botts’ vehicle, and Defendant did not have the container when he left the area.
Likewise, Agent Joey Williamson testified that he saw Defendant walking down Roberts
Street carrying a white container. He saw Defendant lean into the passenger’s side of Mr.
Botts’ car. Agent Williamson then drove down the By-Pass toward Avondale, turned around,
and drove back tot he area of Roberts Street. He saw Defendant walking back up Roberts
Street around ten to fifteen yards from Mr. Botts’ vehicle no longer carrying the container.

        Based on our review of the evidence, we conclude that the evidence was sufficient to
support beyond a reasonable doubt Defendant’s conviction for selling more than .5 grams of
cocaine. The jury heard Mr. Botts’ testimony and, by its verdict, obviously found his
testimony and that of the drugs agents credible as was its prerogative. Defendant is not
entitled to relief in this appeal.

                                     CONCLUSION

       For the foregoing reasons, the judgment of the trial court is affirmed.


                                                   ___________________________________
                                                   THOMAS T. WOODALL, JUDGE




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