                                                                                       04/24/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs March 21, 2017

                STATE OF TENNESSEE v. JUSTIN RAY LANE

                Appeal from the Criminal Court for Sullivan County
                         No. S62750 R. Jerry Beck, Judge
                     ___________________________________

                           No. E2016-01756-CCA-R3-CD
                       ___________________________________


A Sullivan County jury convicted the defendant, Justin Ray Lane, of four separate felony
offenses for his participation in a controlled drug buy of heroin and cocaine within one
thousand feet of a school. On appeal, the defendant challenges the sufficiency of the
evidence supporting his convictions arguing the State failed to prove he authored the text
messages which established the details of the illegal transaction. Additionally, and for
the same reason, the defendant argues photographs of the text messages establishing the
drug deal were not properly authenticated at trial. Finally, the defendant contends the
trial court prejudiced the jury by including the preamble to the Drug-Free School Zone
Act in its charge. After reviewing the record, submissions of the parties, and pertinent
authorities, we affirm the judgments of the trial court.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and TIMOTHY L. EASTER, JJ., joined.

Stephen M. Wallace, District Public Defender; Andrew J. Gibbons, Assistant District
Public Defender (on appeal); Kyle D. Vaughn, Kingsport, Tennessee (at trial), for the
appellant, Justin Ray Lane.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and Josh D. Parsons,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                                        FACTS
       This case arises out of a controlled drug buy that occurred between the defendant
and Detective Daniel Lane of the Kingsport Police Department. As a result of the illegal
transaction, the defendant was indicted for one count of the sale of heroin within one
thousand feet of a school, one count of the delivery of heroin within one thousand feet of
a school, one count of the sale of cocaine within one thousand feet of a school, and one
count of the delivery of cocaine within one thousand feet of a school, all in violation of
Tennessee Code Annotated sections 39-17-417 and 39-17-432.1

       At trial, the evidence revealed that on October 18, 2012, in order to set up the
controlled drug buy, Detective Lane initiated a series of text messages from a Kingsport
Police Department cell phone to cell phone number (xxx) xxx-4949 (“the 4949 number”).
Detective Lane obtained the 4949 number through an independent drug investigation
prior to sending the first text message. The text message exchange established the time,
location, and substance of the controlled drug buy, as follows:

               [Detective Lane]:       Hey, would u be able to do 2 h and 1 white
                                       around [9:30?]

               [4949]:                 Yea[.]

               [Detective Lane]:       Cool where u want to meet[?]

               [4949]:                 U will have to come to me[.]

               [4949]:                 How much white?

               [Detective Lane]:       Where r u gon[n]a be and $50 white.

               [4949]:                 In [L]ee is where [I’m] gonna be.

               [4949]:                 Just call me before u come.

Detective Lane knew “Lee” to be the Lee Apartments in Kingsport, Tennessee. He also
explained that “2 h” and “$50 white” amounted to $130 worth of heroin, “h,” and
cocaine, “white.” After establishing the parameters of the controlled buy, Detective Lane
proceeded to the Lee Apartments in order to complete the transaction. He wore audio


       1
          In the same indictment, the defendant was also charged with two counts of the sale of over 0.5
grams of cocaine and one count of the sale of a counterfeit controlled substance for acts occurring on
October 30, 2012. However, prior to trial, the defendant entered a blind plea for the October 30, 2012
offenses.
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and visual recording equipment and was followed by a surveillance team from the
Kingsport Police Department.

       As Detective Lane neared the Lee Apartments, he called the 4949 number as
instructed in the text messages. A male voice answered and directed him to a designated
apartment. Detective Lane described the exchange, as follows: “I went to the door of
Apartment 1-12. I knocked on the door. A white male came to the door. He just barely
opened the screen door. I handed the male the money; [he] handed me a package. . . . and
then I left.” Detective Lane testified that he gave the defendant $130 of previously
photocopied money. In return, the defendant supplied him with “two bindles of heroin
and a certain amount of powder cocaine.” Detective Lane did not see anyone other than
the defendant in Apartment #1-12 during the transaction.

       During Detective Lane’s testimony, the State introduced the video taken by
Detective Lane during the controlled buy. Though the video failed to capture the actual
exchange, it did show the defendant’s face during the transaction. The State also
introduced, over defense objection, photographs of the text message exchange between
Detective Lane and the 4949 number which generated the controlled drug buy.

       Sergeant Gerald Hurd of the Kingsport Police Department monitored the
controlled buy between Detective Lane and the defendant over audio wire while
providing backup to Detective Lane. Though he could not see the exchange from his
position near the Lee Apartments, Sergeant Hurd testified that Cora Cox Academy is
“directly across” the street from the apartment complex.

       Jeff Kendrick, evidence custodian at the Kingsport Police Department, transported
the evidence obtained from the controlled buy with the defendant to the Tennessee
Bureau of Investigation for testing. Agent Carl Smith, an expert in forensic chemistry
with a specialty in drug identification, tested the substances obtained from the controlled
buy. He explained that the substances tested positive for .23 grams of cocaine and .12
grams of heroin.

       Steven Starnes of the Geographic Information Systems Department for the City of
Kingsport created a map which illustrated a one thousand feet school zone buffer around
Cora Cox Academy. According to Mr. Starnes, a buffer is simply “a graphical
representation of a thousand feet from any point.” He identified on the map the location
of the Lee Apartments in relation to Cora Cox Academy and testified that the Lee
Apartments are located within one thousand feet of Cora Cox Academy. After Mr.
Starnes testified, the State recalled Detective Lane who also identified the specific
location of the controlled drug buy at the Lee Apartments which fell within the one
thousand foot school zone buffer as displayed on the map.
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        The Director of Student Services for Kingsport City Schools, Elaine Minton,
testified that Cora Cox Academy is located at 520 Myrtle Street and serves students in the
sixth through the twelfth grades. Ms. Minton stated Cora Cox Academy was being used
as a school on October 18, 2012.

        According to the appellate record, the defense did not present any proof. The jury
convicted the defendant of all four counts as charged in the indictment for his
participation in the controlled drug buy with Detective Lane on October 18, 2012. The
trial court sentenced the defendant as a Range I offender to an effective fifteen-year
sentence to be served at one hundred percent for the four convictions.2 The trial court
denied the defendant’s motion for a new trial and this appeal followed.

                                            ANALYSIS

       On appeal, the defendant challenges the sufficiency of the evidence arguing the
State failed to prove he was the author of the text messages that led to the controlled drug
buy. The defendant also argues the trial court erred in allowing photographs of the text
messages into evidence stating they were not properly authenticated at trial. Finally, the
defendant asserts he was prejudiced by the trial court’s inclusion of the preamble to the
Drug-Free School Zone Act in its charge to the jury. The State contends sufficient
evidence exists to support the defendant’s convictions, the photographs were properly
authenticated, and the trial court did not err by including the preamble to the Drug-Free
School Zone Act in its jury charge. Discerning no error, we agree with the State and
affirm the judgments of the trial court.

        Initially, we address the defendant’s claim that the trial court erred in admitting
into evidence the photographs of the text messages between Detective Lane and the 4949
number. He argues that the photographs should have been excluded because the State
failed to properly authenticate them. “The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to the court to
support a finding by the trier of fact that the matter in question is what its proponent
claims.” Tenn. R. Evid. 901(a). Authentication can occur through testimony of a witness
with knowledge “that a matter is what it is claimed to be” or through details such as
“[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics,
taken in conjunction with circumstances.” Tenn. R. Evid. 901(b)(1), (b)(4).



       2
         The trial court ran all of the defendant’s sentences concurrently to one another, including an
effective eight-year sentence imposed for the convictions pursuant to the blind plea agreement entered
into before trial.
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       Here, the photographs were properly authenticated by Detective Lane, a
participant in the controlled drug buy, who testified that the drug deal materialized as
planned in the text messages with the 4949 number. At trial, Detective Lane identified
the cell phone seen in the photographs as the “cell phone of the Kingsport Police
Department” he used to text the 4949 number. He further stated the photographs
accurately depicted the text messages between him and the 4949 number. The defendant
did not provide any evidence to dispute Detective Lane’s testimony. Accordingly, we
conclude the trial court did not abuse its discretion when it admitted the photographs of
the text message conversation between Detective Lane and the 4949 number into
evidence. The defendant is not entitled to relief.

        The defendant also briefly argues the photographs of the text messages were not
relevant and, thus, were inadmissible at trial. We disagree. Relevant evidence is simply
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence.” Tenn. R. Evid. 401. As discussed in greater detail in addressing the
defendant’s sufficiency claims, it is clear that the text messages established the
parameters of the controlled drug buy upon which the defendant was convicted. The text
messages were relevant to the defendant’s trial and this issue is without merit.


        Next, the defendant contests the sufficiency of the evidence upon which his
convictions are based arguing the verdict was contrary to the law and the evidence, the
trial court erred in denying his motion for judgment of acquittal, and the evidence
produced at trial was insufficient to support his convictions. Despite the defendant’s
varied approach to these issues, when the sufficiency of the evidence is challenged, the
relevant question for this Court 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) (“Findings of guilt in criminal actions
whether by the trial court or jury shall be set aside if the evidence is insufficient to
support the findings by the trier of fact of guilt beyond a reasonable doubt.”); State v.
Evans, 838 S.W.2d 185, 190-92 (Tenn. 1992); State v. Anderson, 835 S.W.2d 600, 604
(Tenn. Crim. App. 1992); see also State v. Little, 402 S.W.3d 202, 211 (Tenn. 2013)
(“The standard by which the trial court determines a motion for a judgment of acquittal
is, in essence, the same standard that applies on appeal in determining the sufficiency of
the evidence after a conviction.”). All questions involving the credibility of witnesses,
the weight and value to be given the evidence, and all factual issues are resolved by the
trier of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987).
Accordingly, “[a] guilty verdict by the jury, approved by the trial judge, accredits the

                                          -5-
testimony of the witnesses for the State and resolves all conflicts in favor of the theory of
the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).

       Our Supreme Court has stated the rationale for this rule:

              This well-settled rule rests on a sound foundation. The trial judge
       and the jury see the witnesses face to face, hear their testimony and observe
       their demeanor on the stand. Thus the trial judge and jury are the primary
       instrumentality of justice to determine the weight and credibility to be
       given to the testimony of witnesses. In the trial forum alone is there human
       atmosphere and the totality of the evidence cannot be reproduced with a
       written record in this Court.

Bolin v. State, 405 S.W.2d 768, 771 (Tenn. 1966) (citing Carroll v. State, 370 S.W.2d
523 (Tenn. 1963)). “A jury conviction removes the presumption of innocence with
which a defendant is initially cloaked and replaces it with one of guilt, so that on appeal a
convicted defendant has the burden of demonstrating that the evidence is insufficient.”
State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).

       Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Matthews, 805 S.W.2d
776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331 (Tenn.
1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The standard of review for
sufficiency of the evidence “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)). The jury as the trier of
fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Campbell, 245
S.W.3d 331, 335 (Tenn. 2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim.
App. 1978)). Moreover, the jury determines the weight to be given to circumstantial
evidence and the inferences to be drawn from this evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are questions
primarily for the jury. Dorantes, 331 S.W.3d at 379 (citing State v. Rice, 184 S.W.3d
646, 662 (Tenn. 2006)). This Court, when considering the sufficiency of the evidence,
shall not reweigh the evidence or substitute its inferences for those drawn by the trier of
fact. Id.

      As charged in the indictment, “it is an offense to knowingly” sell or deliver heroin,
a Schedule I controlled substance, or cocaine, a Schedule II controlled substance. Tenn.
Code Ann. §§ 39-17-406, -408, -417. If the sale or delivery of a controlled substance is

                                            -6-
committed within one thousand feet of a school, a defendant has violated the Drug-Free
School Zone Act and is subject to enhanced sentencing. Tenn. Code Ann. § 39-17-432.

        Here, the defendant argues that the evidence is insufficient to establish his
participation in the controlled drug buy because Detective Lane “could not identify the
[defendant] as the person he had communicated with via text message and telephone
conversation.” However, Detective Lane testified that he engaged in a text message
conversation with the 4949 number wherein he sought to purchase heroin and cocaine
from the recipient of the texts. After setting up the controlled drug buy at 9:30 p.m. at the
Lee Apartments, the holder of the 4949 number instructed Detective Lane to call him
when he arrived at the apartment complex. Detective Lane complied and the male voice
that answered the 4949 number directed Detective Lane to a specific apartment. Once
Detective Lane arrived at the apartment, the defendant opened the door and gave him a
package containing heroin and cocaine in exchange for $130. Detective Lane captured
the defendant’s face on video during the transaction, and the video was presented to the
jury at trial. Though Detective Lane testified he did not know who actually sent the text
messages from the 4949 number, after complying with the details of the texts, he
purchased heroin and cocaine from the defendant. By way of its verdict, it is clear that
the jury found the defendant was the author of the text messages and, thus, the
seller/deliverer of the drugs based upon the circumstantial evidence provided by the State
regarding the drug deal. See State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App.
1982) (citations omitted) (“[T]he identification of a defendant as the person who has
committed the crime for which he is on trial is a question of fact for the determination of
the jury.”); State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted)
(“Sufficient proof of the perpetrator’s identity may be established through circumstantial
evidence alone.”). As such, sufficient evidence exists in the record to support the
defendant’s convictions.

        Finally, the defendant argues that the trial court erred in instructing the jury with
regard to the Drug-Free School Zone Act. Tenn. Code Ann. § 39-17-432. “It is well-
settled in Tennessee that a defendant has a right to a correct and complete charge of the
law so that each issue of fact raised by the evidence will be submitted to the jury on
proper instructions.” State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v.
Garrison, 40 S.W.3d 426, 432 (Tenn. 2000); State v. Teel, 793 S.W.2d 236, 249 (Tenn.
1990)). Accordingly, trial courts have a duty to give “a complete charge of the law
applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287 (Tenn.
Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)). An
instruction will only be considered prejudicially erroneous if it fails to submit the legal
issues fairly or misleads the jury as to the applicable law. State v. Faulkner, 154 S.W.3d
48, 58 (Tenn. 2005) (citing State v. Vann, 976 S.W.2d 93, 101 (Tenn. 1998)). We review

                                            -7-
the sufficiency of jury instructions de novo with no presumption of correctness. State v.
Clark, 452 S.W.3d 268, 295 (Tenn. 2014) (citations omitted).

       The defendant asserts that “[i]ncluding the preamble to the [Drug-Free School
Zone Act] in the instructions only served to inflame the passions and prejudice of the
jury” by reiterating that the purpose of the act is to protect children. At trial, the trial
court charged the jury with the following language:
              The purpose of the Drug-Free School Zone Act is to provide . . .
       students in the State of Tennessee an environment in which they can learn
       without detractions and dangers that are incident to illegal drug activity.

                As a result, it is not a defense that no children were present, that the
       school was not in session, that the drug transaction was between adults, nor
       is it a defense that the drug transaction . . . occurred in a private home. The
       Drug-Free School Zone Act is in effect 24 hours a day, seven days a week.
       The Drug-Free School Zone Act prohibits the illegal sale or delivery of
       drugs within a thousand feet of school property . . . that comprises a public
       or private elementary, middle, or secondary school.

        In reviewing the jury instruction at issue here, we are unable to see how the above
language prejudiced the defendant. An element of each offense for which the defendant
was convicted included that the delivery and sale of the controlled substances occurred
within one thousand feet of a school. It was undisputed at trial that the defendant sold
Detective Lane heroin and cocaine within one thousand feet of Cora Cox Academy, a
school for children in the sixth through twelfth grades. This Court has previously held
that the above instruction “properly summarizes” the Drug-Free School Zone Act and the
defendant has failed to explain how the instruction at issue prejudiced him. State v. Steve
Duclair, No. E2012-02580-CCA-R3-CD, 2014 WL 1663152, at *10 (Tenn. Crim. App.
Apr. 23, 2014). Accordingly, the defendant is not entitled to relief.

                                      CONCLUSION

       Based upon the foregoing analysis, the judgments of the trial court are affirmed.



                                               ____________________________________
                                               J. ROSS DYER, JUDGE




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