            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                         July 25, 2012 Session

                 STATE OF TENNESSEE v. LAWRENCE V. KLINE

                      Appeal from the Criminal Court for Scott County
                           No. 9287    E. Shayne Sexton, Judge


                    No. E2012-00021-CCA-R3-CD - Filed August 27, 2012


A Scott County Criminal Court jury convicted the defendant, Lawrence V. Kline, of one
count of the sale of a schedule IV controlled substance (Xanax), and the trial court sentenced
the defendant to two years as a Range I, standard offender to be served on probation. On
appeal, the defendant argues that the trial court erroneously admitted into evidence the two
Xanax pills. Discerning no error, we affirm the judgment of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.

Michael G. Hatmaker, Jacksboro, Tennessee, for the appellant, Lawrence V. Kline.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William Paul Phillips, District Attorney General; and Thomas Barclay,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                                 OPINION

                The defendant’s conviction arose from a May 26, 2009 controlled drug
purchase wherein the defendant and his co-defendant, Siobhan Lynn Daisy, sold two Xanax
pills to a confidential informant, Walter Scott Hudson. Following the trial court’s denial of
the motion for new trial, the defendant filed a timely notice of appeal.1


        1
          As noted by the State in its brief, the technical record did not include an order denying the motion
for new trial. The transcript of the motion for new trial hearing indicates the trial court’s denial. Following
oral argument and assignment of the case, this court ordered supplementation of the record with the order
                                                                                                  (continued...)
              Joe Marlow testified at trial that he was a narcotics agent with the Scott County
Sheriff’s Department (“SCSD”) in May 2009. As part of his employment, Mr. Marlow
recruited individuals to act as confidential informants and make drug purchases from
suspected dealers. Mr. Marlow sought the services of Walter Scott Hudson, who, on May
26, 2009, participated in a controlled purchase of two Xanax pills from the defendant and
Ms. Daisy. The entire purchase was tape recorded via a wire transmitter attached to Mr.
Hudson. A tape recording of the transaction was exhibited at trial and played for the jury.
During the investigation, Mr. Marlow also recovered “two white oblong pills” from Mr.
Hudson and forwarded them to the Tennessee Bureau of Investigation (“TBI”) Crime
Laboratory for chemical analysis and identification.

               SCSD Captain Larry Lay testified that he supervised the activities of the
narcotics investigation unit in 2009. Accordingly, he supervised Mr. Marlow’s investigation
and accompanied Mr. Marlow on the controlled purchased involving the defendant. Captain
Lay testified consistently with Mr. Marlow concerning Mr. Hudson’s purchase of two Xanax
pills from the defendant and Ms. Daisy.

              Jacob White, a forensic scientist with the TBI Crime Laboratory, analyzed the
two pills and determined them to be alprazolam, a schedule IV drug also known by its trade
name, Xanax. Agent White’s report and the Xanax pills were made exhibits at the trial.

               Walter Scott Hudson testified that he pleaded guilty in 2008 or 2009 to a
methamphetamine charge and soon thereafter sought employment as a confidential informant
because he possessed particularized knowledge of the illegal drug trade in the Scott County
area. He recalled purchasing two Xanax pills from the defendant on May 26, 2009. He said
that the defendant initially offered him “Perc 30s.” When Mr. Hudson told the defendant that
he could not afford those pills and asked for two Xanax pills instead, the defendant left Ms.
Daisy’s apartment for approximately five minutes to retrieve the Xanax pills. When the
defendant returned, Mr. Hudson gave Ms. Daisy $12 and watched Ms. Daisy deliver the
money to the defendant in return for the two Xanax pills.

              Following the denial of a motion for judgment of acquittal and a full Momon
colloquy, see Momon v. State, 18 S.W.3d 159,161-62 (Tenn. 1999), the defendant elected not
to testify. He did not present any other proof. With this evidence, the jury convicted the
defendant as charged with one count of the sale of a Schedule IV controlled substance. At
sentencing, the trial court imposed a sentence of two years to be served on probation.


       1
        (...continued)
denying the motion for new trial. See State v. Byington, 284 S.W.3d 220, 224-25 (Tenn. 2009).


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               On appeal, the defendant argues that the trial court erroneously admitted the
two Xanax pills into evidence at trial in violation of the rules of discovery. See Tenn. R.
Crim. P. 16 and 12(d). The State contends that the defendant has waived this issue on appeal
by failing to include an adequate record on appeal. Alternatively, the State argues that the
trial court properly admitted the evidence.

                The record reveals that the defendant objected to the admission of the pills
during Agent White’s testimony. During a jury-out hearing, the defendant argued that the
State failed to list the actual pills as evidence intended to be used at trial pursuant to the
defendant’s discovery requests via Rules 12(d)(2) and 16 and that, therefore, the pills should
not be admitted. The State argued that disclosure of the actual pills was not required by Rule
16, that the defendant never requested an independent analysis of pills, and that the case
obviously related to the sale of Xanax pills as alleged in the indictment. The trial court ruled
that “this has been a sale of schedule four from the beginning. I don’t see any reason to keep
the product from the jury.”

               In the case of a discovery violation, the trial court has multiple options
available as sanctions for noncompliance. See Tenn. R. Crim. P. 16(d)(2) (listing possible
sanctions such as ordering discovery, granting a continuance, or exclusion of the
nondisclosed evidence). Exclusion of the evidence is generally disfavored and reserved only
for those instances when a party is actually prejudiced by the noncompliance and the
prejudice cannot otherwise be mollified. See State v. Garland, 617 S.W.2d 176, 185-86
(Tenn. Crim. App. 1981); State v. James, 688 S.W.2d 463, 466 (Tenn. Crim. App. 1984);
State v. Briley, 619 S.W.2d 149, 152 (Tenn. Crim. App. 1981).

                Initially, we note that at both the jury-out hearing and the motion for new trial
hearing, the State exhibited the relevant discovery documents which were provided pretrial
to the defendant. This collective exhibit is, however, absent from the record on appeal. The
appellant, in this case the defendant, has the burden to prepare a complete record to allow this
court to review the issues. See Tenn. R. App. P. 24(g). An appellant who fails to provide
an adequate record risks this court’s being unable to consider the appellate issues on their
merits. See State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). In that vein, we could deem
this issue waived. Furthermore, the record before this court fails to establish whether a
discovery violation actually occurred in this case.


               That being said, we discern from the averments of counsel during each hearing
that the State provided the defendant with a listing of all documents and analytical results it
intended to introduce at trial. See Tenn. R. Crim. P. 16(a)(1)(F), (G). Each document refers
to “two white oblong pills.” From the arguments, we also discern that the defendant did not


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request independent testing of the Xanax pills at issue in this case. Furthermore, the
indictment in this case alleges that the defendant “did unlawfully, feloniously and knowingly
sell Xanax, containing alprazolam, a Schedule IV controlled substance.” Even if we assume
that the State failed to list the pills themselves as an item subject to discovery, we cannot
discern how the defendant was surprised, and thereby prejudiced, by the State’s introduction
of the pills as evidence at trial. Accordingly, we conclude that the trial court did not err in
admitting the Xanax pills at trial.


              Accordingly, the judgment of the trial court is affirmed.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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