         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     April 25, 2006 Session

            STATE OF TENNESSEE v. ROSHAD ROMANIC SILER

                   Direct Appeal from the Criminal Court for Roane County
                             No. 12878 E. Eugene Eblen, Judge



                    No. E2005-01201-CCA-R3-CD - Filed January 3, 2007


THOMAS T. WOODALL, J., concurring in part and dissenting in part.

       I concur with the majority’s opinion regarding the evidentiary issue. I dissent from the
majority’s opinion insofar as it finds insufficient evidence to support the convictions.

        The offense of sale of a counterfeit substance as set forth in Tennessee Code Annotated
section 39-17-423(a) requires proof of three essential elements: (1) that the accused sold, delivered,
or distributed a substance; (2) that the accused represented the substance to be a controlled
substance; (3) and that the substance sold, delivered or distributed is substantially similar to a
Schedule I, II, III, or IV controlled substance it is represented to be. A clear reading of the statute
demonstrates that proof of the actual composition of the substance sold is not an essential element
of the offense defined in Tennessee Code Annotated section 39-17-421(a).

        Based on the videotape of the three transactions occurring on July 14, 2003, and the
testimony of Detective Mynatt, Defendant was in possession of a baggie containing a white, rock-
like substance. On three separate occasions, individuals approached Defendant and exchanged what
appears to be cash for a portion of the white, rock-like substance contained in the baggie. The baggie
was visible to the buyers before or during the transactions. After handing the buyers the substance,
Defendant took the buyers’ cash, retied the baggie, and continued to maintain his position in Triangle
Park. Detective Mynatt testified that he had bought crack cocaine on numerous occasions in an
undercover capacity, and that the substance in Defendant’s baggie was substantially similar in size,
composition and color to crack cocaine. Cocaine is a Schedule II controlled substance. See T.C.A.
§ 39-17-408(b)(4).

       The fact that the substance was not sold to an undercover police officer or confidential
informant in an arranged buy transaction, and thus not available for testing prior to trial, goes to the
weight of the State’s evidence, as does the fact that no crack cocaine was found in the first buyers’
car when it was searched approximately thirty minutes after the transaction.
        Defendant also contends that the lack of an audio memorialization of the transactions negates
a finding that Defendant made a “representation” concerning the substance sold. A “representation”
is a presentation of a fact which is made either by words or conduct. Black’s Law Dictionary 1303
(7th ed. 1999). In a similar situation, a panel of this Court concluded that, in the absence of a verbal
affirmation or representation by a defendant, the defendant’s actions can support an inference that
the merchandise sold was to be understood as a controlled substance. State v. Jeffrey Antwon Burns,
No. M1999-01830-CCA-R3-CD, 2000 WL 1520261, at *3 (Tenn. Crim. App., at Nashville, Oct. 13,
2000), perm. to appeal denied (Tenn. Apr. 23, 2001). In Jeffrey Antwon Burns, a confidential
informant solicited a sale of drugs from the defendant. The defendant approached the confidential
informant, removed a substance from his mouth, and exchanged the substance for the twenty dollars
offered by the confidential informant, all without uttering a word. Id.

       The court observed:

       Our jurisprudence recognizes that the mental state, a necessary factor of almost all
       our criminal statutes, is most often proven by circumstantial evidence, from which
       the trier of fact makes inferences from the attendant circumstances and from which
       that body weighs the circumstantial evidence. See Hall v. State, 490 S.W.2d 495, 496
       (Tenn.1973); Williams v. State, 552 S.W.2d 772, 776 (Tenn. Crim. App.1977); see,
       e.g., Poag v. State, 567 S.W.2d 775, 778 (Tenn. Crim. App.1978). In this case, the
       jury could certainly have inferred from the defendant’s actions that he intended to sell
       a controlled substance. Clearly, the defendant’s manner of concealment, manner of
       delivery and, in fact, his silence, support the proposition that he intended to sell an
       unlawful substance. Further, trial testimony established that the substance sold
       resembled crack cocaine in size, color and shape. Finally, the testimony of the
       experienced [confidential informant] which described the actions of the defendant as
       well as his knowledge of similar transactions supported the inference that this
       transaction was intended as a drug sale.
Id.

        In the case sub judice, Detective Mynatt, who was experienced in drug transactions involving
the sale of cocaine, testified that Defendant’s actions in Triangle Park were similar to other drug
transactions he had observed. The videotape clearly depicts Defendant exchanging a substance,
which Detective Mynatt testified was substantially similar to crack cocaine, for what the jury could
reasonably infer was cash. Detective Mynatt’s testimony as well as the videotape supports an
inference that Defendant intended to sell the substance in the baggie, and that the substance sold was
represented to be crack cocaine.

       Defendant also challenges the sufficiency of the convicting evidence because the State did
not prove that the substance he sold was not crack cocaine as alleged in each count of the indictment
supporting Defendant’s convictions. Each count of the indictment alleges that Defendant:




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       did unlawfully and intentionally sell a substance, representing such to be crack
       cocaine, such substance being substantially similar in color, shape, size and markings
       or lack thereof to crack cocaine[,] a Schedule II Drug as classified in T.C.A. section
       39-17-408, when, in fact such substance was not a controlled substance, in violation
       of T.C.A. Section 39-17-423. . . .

         The language, “when, in fact such substance was not a controlled substance,” is surplusage.
An indictment is not defective because of the inclusion of surplusage if, after eliminating the
surplusage, the offense is still sufficiently charged. State v. Culp, 891 S.W.2d 232, 236 (Tenn. Crim.
App. 1994). Proof of the actual composition of the substance sold is not an essential element of the
offense defined in Tennessee Code Annotated section 39-17-421(a). The indictment sets forth the
essential elements of the offense with which Defendant was charged. Thus, the use of the language
in the indictment “when, in fact such substance was not a controlled substance,” cannot change the
essential elements of the offense. See State v. Witherspoon, 769 S.W.2d 880, 884 (Tenn. Crim. App.
1988).

       According, I would affirm the judgments of the trial court.

                                                       _________________________________
                                                       THOMAS T. WOODALL, JUDGE




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