        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs December 9, 2014 at Knoxville

              STATE OF TENNESSEE v. DON ARTURO HYLER

                 Appeal from the Criminal Court for Davidson County
                    No. 2010-A-601     Mark J. Fishburn, Judge


               No. M2014-00221-CCA-R3-CD - Filed January 27, 2015


The defendant, Don Arturo Hyler, was convicted of the sale of 26 grams or more of cocaine
and possession of 300 grams or more of cocaine with intent to sell in a drug-free school zone
and received a total effective sentence of fifteen years at 100%. On appeal, he argues that
the evidence is insufficient to support his convictions; that the court should have instructed
the jury as to the lesser-included offense of facilitation; that the State made an improper
reference in the opening statement regarding prior bad acts of the defendant; and for failing
to grant a severance of charges for trial. Following our review, we affirm the judgments of
the trial court.

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

T HOMAS T. W OODALL, P. J., delivered the opinion of the Court, in which A LAN E. G LENN and
T IMOTHY L. E ASTER, JJ., joined.

Michael A. Colavecchio (on appeal) and Karl Pulley (at trial), Nashville, Tennessee, for the
appellant, Don Arturo Hyler.

Herbert H. Slatery, III, Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Antoinette Welch and John
Zimmerman, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       Detective Justin Fox of the Metropolitan Nashville Police Department testified that,
under his direction, a confidential informant, who previously had bought cocaine from the
defendant, telephoned the defendant on December 8, 2009, seeking to buy nine ounces of
cocaine. They agreed upon a price of $8250. The informant told Detective Fox that the
defendant was employed at a Nashville restaurant called “At the Table.” The informant was
to meet the defendant at a local Wendy’s restaurant. Detective Fox observed their meeting,
and, on electronic monitoring equipment, heard the informant say, “It’s good,” signifying to
him that the purchase had been made from the defendant. Detective Fox followed the
informant to an agreed-upon meeting place, where he retrieved the recording equipment and
took possession of the cocaine which was determined to weigh 250 grams.

         In a series of conversations beginning on December 11, 2009, the defendant agreed
to sell the confidential informant a kilogram of cocaine. On December 16, the defendant told
the informant that he had located a supplier for the cocaine, and Detective Fox followed the
defendant from his job at the restaurant to another location in Nashville, where he met
another individual who got into the defendant’s car. The informant contacted Detective Fox
and said that the defendant had told him that he had gotten the cocaine. The defendant’s
vehicle was stopped on I-24 in Nashville, and Detective Fox, upon searching the vehicle,
found a “brick” of cocaine under the front passenger seat.

                                         ANALYSIS

       We will consider the issues presented on appeal by the defendant.

                               I. Sufficiency of the Evidence

        Our review of a defendant’s challenge to the sufficiency of the evidence to sustain a
conviction is governed by well settled principles of law. Our standard of review regarding
sufficiency of the evidence is “whether after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also
Tenn. R. App. P. 13(e). After a jury finds a defendant guilty, the presumption of innocence
is removed and replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191
(Tenn. 1992). Consequently, the defendant has the burden on appeal of demonstrating why
the evidence was insufficient to support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913,
914 (Tenn. 1982). The appellate court does not weigh the evidence anew; rather, “a jury
verdict, approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts” in the testimony and all reasonably drawn inferences in favor of the
State. State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, “the State is entitled to the
strongest legitimate view of the evidence and all reasonable or legitimate inferences which
may be drawn therefrom.” Id. (citation omitted). This standard of review applies to guilty
verdicts based upon direct or circumstantial evidence. State v. Dorantes, 331 S.W.3d 370,
379 (Tenn. 2011) (citing State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). In Dorantes,

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our supreme court adopted the United States Supreme Court standard that “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of such
evidence.” Id. at 381. Accordingly, the evidence need not exclude every other reasonable
hypothesis except that of the defendant’s guilt, provided the defendant’s guilt is established
beyond a reasonable doubt. Id.

        The State presented substantial proof as to the defendant’s guilt. Detective Fox
testified as to recorded telephone conversations between the informant and the defendant,
explaining the jargon they used in setting up the drug sale by the defendant to the informant.
Detective Fox and other officers watched from a distance as the informant entered and soon
left the defendant’s vehicle and listened to the conversation between the two as the informant
purchased the drugs. After the sale, officers met with the informant, who gave them
approximately nine ounces of cocaine. As to the conviction for possession with intent to sell,
Detective Fox testified as to the recorded conversations between the informant and defendant
arranging the sale of cocaine to the informant. Following the traffic stop of the defendant’s
vehicle, they seized a kilo of cocaine from inside the passenger compartment. The State also
presented unchallenged evidence that the defendant had possessed drugs within 1000 feet of
two schools. From all of this, we conclude that a reasonable jury could have determined
beyond a reasonable doubt that the defendant committed the offenses for which he was
convicted.

                  II. Court’s Not Charging the Jury as to Facilitation

       On appeal, the defendant argues that he “was simply transporting the cocaine
belonging to another person as a favor and therefore had no interest in the cocaine and/or had
no arrangement or intention to receive any compensation from the actual owner of the
cocaine.” The State responds that this claim is waived because the defendant failed to
request in writing a facilitation instruction.

       Tennessee Code Annotated section 40-18-110 provides in pertinent part:

              (b) In the absence of a written request from a party specifically
       identifying the particular lesser included offense or offenses on which a jury
       instruction is sought, the trial judge may charge the jury on any lesser included
       offense or offenses, but no party shall be entitled to any lesser included offense
       charge.

              (c) Notwithstanding any other provision of law to the contrary, when
       the defendant fails to request the instruction of a lesser included offense as
       required by this section, the lesser included offense instruction is waived.

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       Absent a written request, the failure of a trial judge to instruct the jury on any
       lesser included offense may not be presented as a ground for relief either in a
       motion for a new trial or on appeal.

Tenn. Code Ann. § 40-18-110(b)-(c). We, therefore, review this issue only under the
doctrine of plain error. See State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006).

        We cannot conclude that the trial court’s not providing instructions as to facilitation
rises to the level of plain error because it is not clear that the defendant was entitled to the
instructions; thus, there was no breach of a clear and unequivocal rule of law. Accordingly,
we conclude that this claim is without merit.

          III. Statement Regarding Previous Drug Dealing by the Defendant

        During her lengthy opening statement, the prosecutor explained the relationship
between the defendant and the confidential informant and said that “[t]he [informant] had
a prior relationship with [the defendant], they knew each other, they had done drug deals in
the past together.” No objection was made to this statement. Accordingly, the issue is
waived on appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as
requiring relief be granted to a party responsible for an error or who failed to take whatever
action was reasonably available to prevent or nullify the harmful effect of an error.”). As to
the statement, the defendant cannot establish “plain error,” in light of the overwhelming
evidence of his guilt. See State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000).

                                       IV. Severance

      On appeal, the defendant argues that the trial court erred by not severing for trial the
charges for which he was convicted.

       Tennessee Rule of Criminal Procedure 8(b) provides:

               Permissive Joinder of Offenses.--Two or more offenses may be joined
       in the same indictment, presentment, or information, with each offense stated
       in a separate count, or consolidated pursuant to Rule 13, if:

              (1) the offenses constitute parts of a common scheme or plan; or

              (2) they are of the same or similar character.

       As to severance, Tennessee Rule of Criminal Procedure 14(b) provides:

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       Severance of Offenses.

               (1) Involving Permissive Joinder of Offenses.--If two or more offenses
       are joined or consolidated for trial pursuant to Rule 8(b), the defendant has the
       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 in the trial of the
       others.

        The defendant was charged in three counts of a four-count indictment. He was not
charged in Count 2. The State responds to this issue by pointing out that the record on appeal
does not show that the defendant sought to sever the offenses for which he was convicted.
We note that the defendant’s motion for severance, apparently filed on May 10, 2012, sought
to sever Counts 3 and 4 (the counts for which he was convicted) from Count 1. The record
further shows that a hearing was held on this motion on May 15, 2012. The motion was
granted by the court. Accordingly, since it does not appear from the record that the defendant
made a request to sever Count 3 from Count 4 prior to trial, we conclude that it is waived.
See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be construed as requiring relief be
granted to a party responsible for an error or who failed to take whatever action was
reasonably available to prevent or nullify the harmful effect of an error.”). We conclude that
this claim is without merit.

                                      CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgments of the
trial court.

                                           ________________________________________
                                           THOMAS T. WOODALL, PRESIDING JUDGE




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