                                                                                       05/04/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                             September 25, 2019 Session

     STATE OF TENNESSEE v. ALFRED MARON WILLIAMS, ERIC
           MARTEL ABRAMS, AND JAMIE PAUL CLICK

                 Appeal from the Criminal Court for Knox County
                     No. 102707     Steven W. Sword, Judge


                            No. E2018-00670-CCA-R3-CD


A Knox County jury convicted the defendants, Alfred Maron Williams, Eric Martel
Abrams, and Jamie Paul Click, of twelve counts of conspiracy to possess with the intent
to sell heroin within 1000 feet of a drug-free school zone. The trial court merged these
twelve convictions into one conviction for each defendant. The jury additionally
convicted Defendant Williams of multiple other drug and firearms-related offenses. The
trial court sentenced Defendant Williams and Defendant Click to effective sentences of
twenty-five years of incarceration each, and it sentenced Defendant Abrams to twenty-
one years of incarceration. All three defendants appeal. Defendants Williams and Click
contend that the trial court erred when it failed to hold a pretrial hearing to determine
whether a conspiracy existed. All three defendants contend that the evidence is
insufficient to sustain their convictions for conspiracy. Defendant Click additionally
contends that the trial court erred when it allowed him to be convicted of the common
law crime of conspiracy. After a thorough review of the record and relevant authorities,
we affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL and ROBERT H. MONTGOMERY, JR., JJ., joined.

Michael Whalen, Knoxville, Tennessee, for the appellant, Alfred Maron Williams.

J. Liddell Kirk (on appeal) and Chloe Atkins Akers (at trial), Knoxville, Tennessee, for
the appellant, Eric Martel Abrams.

Wesley D. Stone, Knoxville, Tennessee for the appellant, Jamie Paul Click.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Sean F. McDermott
and Jennifer H. Welch, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                        OPINION
                                         I. Facts

        This case arises from multiple drug transactions involving the sale and purchase of
heroin. With regard to these transactions, the Knox County Grand Jury issued a
presentment charging the defendants with twelve counts of conspiracy to possess with
intent to sell or deliver a schedule I controlled substance, heroin. The presentment further
alleged that the conspiracy took place within 1000 feet of a drug-free school zone.
Defendant Williams was also charged with multiple other drug and firearms-related
offenses.

       At the trial on these charges, the parties presented the following evidence: Philip
Jinks, an officer with the Knoxville Police Department (“KPD”), testified that he had
been trained in undercover operations investigating drug conspiracies. This conspiracy
investigation began after several residents in the Spring Valley Road area of Knoxville
filed a drug complaint. As a result of this complaint, Detective Jinks began observing
5131 Spring Valley Road (“5131 Spring Valley”), and he saw an SUV that he later
determined was registered to Defendant Williams pull up to the house. Defendant
Williams exited the vehicle and entered the house from a side door. Shortly after
Defendant Williams’s arrival, “a lot of traffic began to come to the house.” Multiple cars
arrived and departed, staying for only brief periods of time. Detective Jinks obtained
some of the license tag numbers from the vehicles. He said that the vehicle traffic was
consistent both with the complaint regarding the house and also with drug dealing.

       Detective Jinks conducted surveillance on 5131 Spring Valley for several days,
and subsequently made a traffic stop of a vehicle leaving the home. As a result of the
stop, Detective Jinks found in the driver’s possession a small amount of heroin in a
Ziploc-type baggie, which was “heat-sealed” or melted at the top. The detective had
never before seen this type of packaging.

       Detective Jinks testified that he contacted the Federal Bureau of Investigation
(“FBI”) because he was aware that FBI agents were conducting a heroin investigation in
Knoxville. The FBI placed him in contact with the Tennessee Bureau of Investigation
(“TBI”) and the Sevierville Police Department. Sevierville Police Department officers
informed him that they were conducting a heroin investigation that involved heroin
packaged in small, heat-sealed Ziploc baggies. Those officers also gave Detective Jinks a
description of a vehicle that they suspected was involved in the drug transactions.
                                             2
       Detective Jinks testified that he observed a Red Mustang, which matched the
description provided by the Sevierville Police Department officers, at 5131 Spring
Valley. He determined that the license tag number was registered to Co-Defendant Carla
Heather Arwood. 1

       Detective Jinks said that he continued surveillance of 5131 Spring Valley, and in
September of that year, after officers arrested Susie Broyles, a resident of the home, all
activity at the home stopped. Detective Jinks interviewed Ms. Broyles, and, based on the
interview, he began investigating a different residence located at 1926 Massachusetts
Avenue (“1926 Massachusetts”). Detective Jinks began surveillance of that residence
and noted the same type of activity that he had seen previously at 5131 Spring Valley.
Detective Jinks testified that he observed a silver Ford Excursion that came and went
from the residence and sometimes parked in the alley adjacent to the backyard.

        Detective Jinks testified that he developed a confidential informant (“CI”) to assist
in his investigation. He met with the CI, and the detective decided to use the CI to make
a controlled purchase at 1926 Massachusetts. After explaining the procedures of using a
CI, Detective Jinks testified that on December 20, 2012, he recorded a phone call placed
by the CI arranging for the purchase of drugs from 1926 Massachusetts. The recording of
that phone call was admitted into evidence. The CI was outfitted with audio and visual
recording equipment and sent into the residence to make the drug transaction. He then
went to a predetermined location to meet Detective Jinks. At this time, he gave the
officer nine small, heat-sealed bags containing a brownish-white powder and the
recording equipment.

         Detective Jinks described a second controlled buy made on January 8, 2013. He
followed the same procedures, watched the CI enter 1926 Massachusetts, and retrieved
the recording equipment from the CI following the buy. The CI again returned with nine
“very small,” heat sealed Ziploc baggies that contained the same brownish-white powder,
which appeared consistent with heroin. Detective Jinks said that these bags he said were
a little different in that they were stamped with an insignia.

       Detective Jinks testified that on January 15, 2013, and based upon these two
controlled drug buys, he sought and executed a search warrant for 1926 Massachusetts.
The SWAT team initially entered 1926 Massachusetts and detained its occupants.
Among the occupants were Defendant Williams, Tiffany Jones, and her boyfriend, Derek
Miller, and Ms. Jones’s juvenile son. Also present were Patrick Panella, Kevin Jolley,

1
 While Co-Defendant Arwood was one of these four defendants tried together, she did not appeal. We
will, therefore, refer to her as “Co-Defendant” to make clear that she has not joined this appeal.
                                                3
Samantha Skye Webb, and Elizabeth Jones. Detective Jinks said that officers secured
Defendant Williams in the bathroom, and Detective Jinks retrieved from the toilet several
of the heat-sealed black bags that contained a powder that was consistent with heroin. As
officers assisted Defendant Williams in standing, they found that he was lying on a plate
and money, and they also noted that he had a black metal clip of an “inside-the-pant”
handgun holder. There was no weapon in the holster. Officers found a large, rubber-
banded roll of cash in Defendant Williams’s pants pocket. Defendant Williams also
possessed a phone holder that contained two cellphones. Detective Jinks said that the
cover was removed from the air vent near where Defendant Williams was found in the
bathroom, and, inside the vent, officers found a loaded .45-caliber handgun.

       In one of the bedrooms, Detective Jinks found a “large number of very small black
heat-sealed bags containing heroin” on the floor. Ms. Jones was located in this room. On
a table next to Ms. Jones’s phone, officers found more black baggies and two small bags
of what appeared to be marijuana. Detective Jinks said that the officers collected a total
of twenty-four small black bags from the toilet and the bedroom floor.

       Detective Jinks said that Mr. Miller was located, along with another individual, in
a second bathroom in 1926 Massachusetts. The officers recovered in the home a large
quantity of needles, which are associated with heroin use, and most of those were in the
bedroom belonging to Mr. Miller and Ms. Jones. Officers removed four similar bags
from Mr. Miller’s “pocket.” Detective Jinks also recovered spoons containing a residue
that appeared to be from the preparation of heroin for injection.

       Detective Jinks recalled that he found multiple empty baggies that appeared to
have once been heat-sealed but subsequently opened and the contents “used.” The officer
also found a large Ziploc baggie containing unused small black baggies similar to the
ones that contained the powdery substance. Detective Jinks found a keychain bearing the
name “Tiffy.” On the keychain were keys to 1926 Massachusetts, a Ford vehicle, and a
Mercedes or BMW vehicle.

       Detective Jinks testified that the day after the search warrant execution he went to
an auto repair shop where he found a silver Ford Excursion and a white Buick
Roadmaster that he had seen in this investigation. He had seen the Excursion parked
numerous times on Massachusetts Avenue, and he once saw Defendant Williams parking
the Excursion. Detective Jinks seized the vehicles. He also obtained search warrants for
the phones he found at 1926 Massachusetts. He interviewed Ms. Jones and Mr. Miller.

       Detective Jinks testified that he also interviewed Co-Defendant Arwood. She said
that she was a heroin user and that she had begun buying heroin from “Jessica and
Jersey” in the Arbor Place Apartments. She had also been to 5131 Spring Valley, where
                                            4
she purchased heroin from “Susan Broyles.” Co-Defendant Arwood said that, after some
period of time, she began purchasing heroin for resale as well as for her own
consumption. She would purchase heroin at 5131 Spring Valley for $10 a bag and then
sell it in Sevier County for $15 to $20 a bag. She told the detective that she came to
Knox County three to five times a week and purchased between five and twenty bags of
heroin. Co-Defendant Arwood said that, on these occasions, she drove either a red truck
or a red Mustang.

       Detective Jinks testified that the names “Jersey and Jess” came up throughout this
investigation. He identified “Jersey” as Brian Addeo, and “Jess” as Jessica Christian.
After identifying Mr. Addeo, he identified a woman named Carrie Roe. Detective Jinks
interviewed Ms. Roe, and she identified a man named Jerome Brewer. Later, Mr. Brewer
was arrested, and Detective Jinks recovered Mr. Brewer’s phones from jail and obtained
a search warrant for them.

       Detective Jinks testified that he learned that Mr. Addeo had been arrested for an
outstanding warrant and was in jail, so the detective had Mr. Addeo brought to his office
for an interview. At that time, Detective Jinks confiscated the phone in Mr. Addeo’s
possession.

       Detective Jinks testified that he conducted a traffic stop of Defendant Abrams,
another man whom he had learned was involved in the illicit activity. He recovered two
phones from Defendant Abrams during a traffic stop. He said he found “significant”
information on those phones. The detective compared the contacts in all of the phones
and the incoming and outgoing text messages, in addition to the data stored within the
phones themselves. On that same day, March 21, 2013, Detective Jinks went to Arbor
Place Apartments, number 442,2 and he executed a search warrant there. Inside the unit,
Detective Jinks found a digital scale and a razor blade inside a compartment in a speaker.
He said, in his experience, digital scales were often found in conjunction with drugs
during a drug investigation.

        Detective Jinks testified about some of the evidence he found on the phones. He
first discussed the Samsung “flip phone” later identified as belonging to Defendant
Williams, which was found during the search warrant execution at 1926 Massachusetts
Avenue.3 The contacts saved within the phone included a contact for Mr. Addeo, Co-
Defendant Arwood and Defendant Click, who were associated with the same phone

2
  Throughout the trial, this apartment complex is sometimes referred to as “Townview” and “Arbor Place”
apartments. It is unclear if these are adjacent apartment complexes or part of the same apartment
complex.
3
  In the interests of brevity and clarity, we will refer to these phones by their owners’ names in later
testimony.
                                                   5
number. The phone also included contacts for Defendant Abrams, Ms. Jones, and Angie
Stafford.

      Detective Jinks said he examined a second Samsung phone found at 1926
Massachusetts, later identified as belonging to Ms. Jones. That phone contained contacts
for: Ms. Stafford; James Vaughn (a/k/a “Cohoas”); Defendant Click and Co-Defendant
Arwood; Mr. Miller; Defendant Abrams; Mr. Addeo; and Defendant Williams.

       Detective Jinks testified he examined Mr. Addeo’s phone, which had “Jersey and
Jess 4eva” and a picture of a child on the inside screen. That phone contained contacts
for: Ms. Stafford; Defendants Click and Arwood; Defendant Abrams; Mr. Vaughn; and a
contact for “Maul” and one for “Rome.” Detective Jinks identified the telephone records
that he subpoenaed, and the trial court admitted those records into evidence.

       During cross-examination, Detective Jinks agreed that, when he interviewed Ms.
Broyles, he told her that he knew she and Defendant Williams had applied for and
obtained a business license together. She told him that they had started a home
improvement and lawn care business and that Defendant Williams had purchased
equipment in furtherance of that business. Ms. Broyles said that the business did not
have a checking account. The detective informed her that he believed that the business
was a sham to launder money. Ms. Broyles said that she was unsure of Defendant
Williams’s real name, referring to him as “Mumbies.”4 Detective Jinks found Ms.
Broyles “mostly truthful” in that she corroborated facts that he already knew to be true.

       Upon further questioning, Detective Jinks testified that there were some instances
in which Ms. Broyles was untruthful, such as her telling him that she left for work every
day at 7:00 a.m., when Detective Jinks had seen her at home during the days that he
conducted surveillance of 5131 Spring Valley. Ms. Broyles also told him that the people
involved in purchasing heroin contacted Defendant Williams to do so, instead of her, but
the phone records indicated that they also called Ms. Broyles. Ms. Broyles’s information
in other instances, however, was accurate and aided him in both this investigation and in
investigating another drug conspiracy.

       Detective Jinks agreed that he never attempted to have any of the people that he
interviewed contact Defendant Williams. Some of the people he interviewed explained
how the drug transactions worked, saying that they communicated through third-party
intermediaries to purchase heroin, including: Ms. Stafford; Ms. Jones; Mr. Addeo; or Ms.
Christian. Most of them did not buy directly from Defendant Williams. Some people


4 We note that Defendant Williams is also referred to as “Mumbles,” but Ms. Broyles referred to him as
“Mumbies.”
                                                  6
indicated that they bought their drugs from “Mumbies” or “Mumbles,” but then admitted
that they had not personally seen him. Detective Jinks recounted that the CI had some
discussion with Defendant Williams but that the controlled purchase was from Ms. Jones.
Detective Jinks agreed that Ms. Jones was an addict and that she charged a bag of heroin
as her price for doing business. He agreed that, during the controlled purchases, Ms.
Jones took the money and exchanged the drugs, keeping one for herself.

       In response to questioning about what evidence Detective Jinks found of a drug
conspiracy at the 1926 Massachusetts Avenue address, he said that Defendant Williams
was found with drugs around him and a gun, Ms. Jones was in the same room in the
middle of a drug transaction, there were multiple cell phones in the home, two on
Defendant Williams’s person and one in the office on the table. Additionally, the phones
contained text messages and records of communication. This taken together all indicated
that there was a conspiracy between multiple people, including the defendants, to
distribute heroin. He further stated that, in this case, his multiple interviews with dozens
of people, the evidence and surveillance, and text messages all indicated that this was a
conspiracy.

       During further cross-examination, Detective Jinks testified that Carrie Roe was
associated with Defendant Abrams and Mr. Jerome Brewer. Detective Jinks recalled that
Ms. Roe was arrested for trespassing and spoke with Detective Jinks after her arrest. Ms.
Roe told Detective Jinks that she had purchased heroin from Defendant Abrams, whom
she always contacted by telephone. Detective Jinks did not find Defendant Abrams’s
contact information in Ms. Roe’s phone, which she had with her at the interview. Ms.
Roe told Detective Jinks that she also used crack cocaine. She further stated that, when
she purchased heroin from Defendant Abrams, she did so at apartment 442 in the Arbor
Place Apartments. She also said that she purchased heroin at other apartments in Arbor
Place from Defendant Abrams and Mr. Brewer.

       Detective Jinks agreed that the majority of the texts on Ms. Roe’s phone were to
Ms. Christian, Mr. Addeo, and Mr. Brewer. Ms. Roe told Detective Jinks that Defendant
Abrams had introduced her to Mr. Brewer. Detective Jinks agreed that he never saw Mr.
Abrams at 5131 Spring Valley or 1926 Massachusetts. Detective Jinks testified that
during Ms. Roe’s second interview she told him that Mr. Abrams was at “Townview”
selling cocaine, but she did not mention heroin.

      Detective Jinks testified that, when he executed the search warrant on 1926
Massachusetts and interviewed its occupants on subsequent occasions, Mr. Miller and
Ms. Jones, he learned of the name “E” (also referred to as “Thumbs” or “Thumbs up”)
and the phone number associated with this individual. He learned that “E” sold heroin.
He then later again heard about “E” from Ms. Roe. He determined “E” was Defendant
                                             7
Abrams.

       Detective Jinks testified that he searched Defendant Abrams’s apartment twice,
and he found only a digital scale. There were no other drugs or drug paraphernalia in the
apartment. Defendant Abrams was arrested while driving his vehicle, and there was no
heroin found in his vehicle. Defendant Abrams had with him two cell phones, neither of
which Detective Jinks obtained the cell phone records for. He noted that the apartment
was not in Defendant Abrams’s name and that someone else had access to the apartment.

       Detective Jinks testified that during many of his interviews neither Defendant
Click’s nor Co-Defendant Arwood’s names were mentioned. He further said that, when
he interviewed Co-Defendant Arwood, he found her cooperative. Co-Defendant Arwood
told the detective that she purchased twenty bags of heroin three to five times per week
and that she used more of the heroin than she resold.

        During redirect-examination, Detective Jinks testified that he attempted to
corroborate information he gleaned during his interviews. Detective Jinks testified that
Ms. Roe had the phone number associated with Defendant Abrams saved as “Ernie” in
her contacts. Further, Ms. Broyles and Mr. Miller both mentioned Defendant Abrams in
their respective interviews.

       Detective Jinks testified that, at the time he searched apartment 442, it was rented
to a Stephanie Parker, who was Defendant Abrams’s girlfriend. She was living in a
different location on Pickett Avenue, and she canceled the lease to the apartment the day
that Defendant Abrams was arrested.

       Michael Bleakley, a special agent forensic scientist with the TBI, testified as an
expert in forensic chemistry that he analyzed the powder obtained in Detective Jinks’s
controlled drug purchase using a CI. Agent Bleakley said that there was .06 grams of
heroin in the Ziploc baggie, and that the gross weight of the additional powder, including
the Ziploc bags, was 0.75 grams. His report noted that the total amount of powder would
not exceed 15 grams of powder.

       Carl Smith, with the TBI, testified that he analyzed the heroin that was seized
during the search of 1926 Massachusetts, and determined that one submission contained
8.36 grams of heroin. He examined an additional eighteen Ziploc baggies that contained
identical type powder, the gross weight of which would not have exceeded 15 grams. He
also examined another submission and determined that it was marijuana.

       The State offered multiple witnesses who were the custodians of records for the
cell phones relevant to this case. These records showed communication between the cell
                                            8
phones that were confiscated.

       Brian Addeo testified that his nickname was “Jersey” because he was from New
Jersey. He moved to Tennessee after a serious motorcycle accident, so that his sister
could care for him. As a result of the accident, Mr. Addeo used multiple pain
medications and also nerve medicine. He described himself as “addicted to . . . opiates”
and heroin. Mr. Addeo admitted that he had been convicted of multiple offenses
stemming from his drug addiction. One of those convictions involved the domestic
assault of Ms. Christian, who was the mother of his son and with whom he also
frequently used heroin and pain pills.

       Mr. Addeo testified that he participated in the selling of heroin that led to this
investigation and his eventual arrest in this case. Mr. Addeo recalled that the heroin that
he purchased in New Jersey was sold in wax paper, and the heroin he bought in
Tennessee came in small, black, heat-sealed Ziploc baggies. He said that he sold
between ten and fifty bags of heroin daily, and he used all of the money he made to
support his own drug habit.

       Mr. Addeo identified Defendant Williams, whom he called “Mumbles,” Defendant
Abrams, whom he called “E” and also knew as “Thumbs Up,” Defendant Click, and Co-
Defendant Arwood. Mr. Addeo testified that he usually obtained the drugs that he used
and resold from Defendant Williams but that he had also purchased drugs from
Defendant Abrams and Defendant Click. He had not purchased drugs from Co-
Defendant Arwood but had seen her with Defendant Click during “many” of the
transactions. The two were usually in a red Mustang but also sometimes drove a truck.
Mr. Addeo testified that he had personally seen Defendant Williams fill some of the
black, heat-sealed baggies with heroin. The baggies usually contained less than a tenth of
a gram of heroin and retailed for $10. Mr. Addeo said that, at the time of his arrest, he
used as many baggies a day as possible, numbering twenty or more.

        Mr. Addeo testified that, at some point, he began going to 5131 Spring Valley
where Tiffany Jones, Derrick Miller, Susan Broyles and her boyfriend, Sean Cruz, all
lived. There, he purchased heroin from Defendant Williams. He said that his visits to the
house were short and that he was there solely for the purchase of drugs. Mr. Addeo
testified that he communicated with Defendant Williams directly and that he called him
and purchased drugs on a daily basis. Mr. Addeo said that Ms. Broyles contacted him
and told him that it was no longer “safe” to purchase drugs from 5131 Spring Valley.
Ms. Jones then informed him that he should go to 1926 Massachusetts to purchase drugs.
Ms. Jones had moved to that residence with Mr. Miller.

       Mr. Addeo said that, when he wanted to purchase heroin from 1926
                                            9
Massachusetts, he would call Defendant Williams or Ms. Jones. When he arrived, he
went in the front door and then he went into a room to the right that was minimally
furnished where Defendant Williams sold him drugs. When Mr. Addeo gave Defendant
Williams the money, Defendant Williams would place it in his pocket.

      Tiffany Jones testified that she was an opiate addict and that she knew Defendant
Williams, whom she called “Mumbles,” because she bought heroin from him. She said
she had also purchased heroin from Defendant Abrams, and she knew Defendant Click
and Co-Defendant Arwood as other people who purchased heroin from Defendant
Williams.

       Ms. Jones testified that, before 2012, she moved into 5131 Spring Valley where
she lived with her boyfriend, Derrick Miller, her aunt, Susan Broyles, and Ms. Broyles’s
boyfriend, Sean Cruz. Ms. Jones said that Defendant Williams came to the home and
sold drugs from there. He never stayed the night, but he gave Ms. Broyles money with
which to pay the rent. Ms. Jones recalled that Defendant Williams would arrive early in
the day, give them each a “fix” of heroin that he called their “wake up,” and stay at the
house all day selling drugs from his office. Defendant Williams and Ms. Broyles also
had a tree and lawn business that Ms. Broyles also ran out of the office. Ms. Jones said
that the heroin sold by the Defendant was prepackaged in little baggies that were sealed
“with a lighter, melted, and clipped together.” Defendant Williams gave her two to three
baggies, for her personal use, in the morning every day. This continued for the duration
of the time she lived 5131 Spring Valley. Ms. Jones said that Defendant Williams gave
Ms. Broyles three to five baggies each day, Mr. Miller approximately three baggies each
day, and Mr. Cruz three to five baggies each day.

       Ms. Jones said that, after her morning fix, she would go to a job site for the tree
and lawn service, where she would be paid by whoever had hired the company. She then
spent that money on heroin. She said she used between eight and ten bags of heroin per
day, and Mr. Miller used between ten to fifteen bags each day, as did Mr. Cruz.

       Ms. Jones said that, while she lived at 5131 Spring Valley, she began selling
heroin to other people. She would purchase the baggies of heroin from Defendant
Williams for ten dollars each and then sell each baggie for between fifteen and twenty
dollars. She said that, on occasion, she would pay Defendant Williams $100 for twelve
bags of heroin. She would keep two bags and resell the other ten. Ms. Jones estimated
that she had between five and ten customers, one of whom was her ex-boyfriend James
Vaughn, whom people called “Chaos.” Originally Mr. Vaughn purchased between ten
and twenty bags from her each day but, after she moved to 1926 Massachusetts Avenue,
he began purchasing between twenty and thirty bags each day. She described Mr.
Vaughn as her best customer.
                                           10
       Ms. Jones testified that Defendant Williams knew that she was reselling some of
the heroin she had purchased from him. She said that she was sometimes present in the
office when other people were purchasing heroin from Defendant Williams, including:
Ms. Broyles, Mr. Miller, and Defendant Click. Ms. Jones said that, originally, Defendant
Click and Co-Defendant Arwood were not allowed to go into the office with Defendant
Williams, and Ms. Jones acted as the intermediary, charging them bags of heroin as
payment for her services. Ms. Broyles, Ms. Christian, and Mr. Addeo also acted as
intermediaries for Defendant Click and Co-Defendant Arwood. Eventually, Defendant
Click and Co-Defendant Arwood were given direct access to Defendant Williams in the
office while he was still dealing from 5131 Spring Valley. The two would come to the
home every day, sometimes driving a Mustang and sometimes in a truck, and they would
purchase heroin. Even after the two had direct access to Defendant Williams, they
sometimes called Ms. Jones to find out if Defendant Williams were present at 5131
Spring Valley.

        Ms. Jones testified that, if Defendant Williams were unavailable and she still
needed heroin, she would contact Defendant Abrams. Similarly, if Defendant Williams
ever ran out of heroin, he told Ms. Jones to contact Defendant Abrams. Ms. Jones said
that Defendant Abrams sold drugs out of an apartment, and she said she had seen
Defendant Williams in the apartment with Defendant Abrams. Defendant Abrams sold
heroin packaged similarly to the heroin sold by Defendant Williams, and Ms. Jones had
purchased heroin from both men at the apartment on different occasions. Ms. Jones
testified that she had also purchased heroin from Defendant Abrams while he was at his
house on 1423 Pickett Avenue (“1423 Pickett”). She said she parked in the alley behind
the house and went into the house to purchase the heroin. Ms. Jones testified that she had
seen Defendant Williams at this location also, and she purchased heroin from both him
and Defendant Abrams at this location on different occasions. Ms. Jones said that, when
she purchased heroin from Defendant Abrams, she bought ten bags for $100, and he
never gave her any extra bags.

       Ms. Jones testified that Defendant Williams had her purchase small baggies for
him to put heroin into. She purchased them at “a place off of downtown,” and she
purchased the baggies in both black and in colors, including pink. She saw Defendant
Williams put heroin into the baggies. She saw him “bagging heroin” at 5131 Spring
Valley, at 1926 Massachusetts Avenue, and at Defendant Abrams’s apartment.
Defendant Abrams was present when Defendant Williams packaged heroin at his
apartment. Defendant Williams used the cap of a Bic pen to dip small amounts of heroin
out of a larger supply in a sandwich-sized Ziploc baggie and distribute it into smaller
baggies.

                                           11
      Ms. Jones recounted that Mr. Miller bought “pure” heroin from Defendant
Williams on approximately five occasions. She was unsure of the pricing, but said that it
was packaged differently from the powder. Defendant Williams sold it to them as a
“rock” inside a sandwich-sized plastic Ziploc baggie.

       Ms. Jones testified that, while she was living at 5131 Spring Valley, she heard
Defendant Click and Co-Defendant Arwood discussing reselling the heroin that they
purchased in Sevier County for approximately $20 per bag. She said that Defendant
Click usually came to purchase heroin with two or three hundred dollars at a time. One
time, he came with eight hundred dollars to purchase heroin. Co-Defendant Arwood
usually brought two or three hundred dollars when she came to purchase heroin. Ms.
Jones testified that she never saw Defendant Click and Co-Defendant Arwood come
separately to the home.

        Ms. Jones said that while she was living at 5131 Spring Valley, her relationship
with her aunt, Ms. Broyles, became strained. Defendant Williams also expressed to Ms.
Jones his frustration with Ms. Broyles, in part based upon Ms. Broyles’ purchasing heroin
from someone other than him. Ms. Jones said that she therefore moved to the house
located at 1926 Massachusetts where she lived with Mr. Miller. While Defendant
Williams did not live at the home, he paid the rent and the utilities at the home, and he
paid Ms. Jones some amount of money for her move. He also purchased her a Jeep
Cherokee so that she could meet people without having to purchase rides. Defendant
Williams came to the home to sell heroin, but he never stayed the night there. He sold
heroin out of the master bedroom of the house, which had an attached bathroom. The
only furnishings in the room were a large table and a smaller table upon which a
television sat.

       Ms. Jones said that, after the move, she retained her customers, who came to 1926
Massachusetts to purchase heroin from her. She explained that her customers would
contact her and, if Defendant Williams were at 1926 Massachusetts, she would tell them
to come there to make the heroin purchase. She then took their money, went into
Defendant Williams’s office, exchanged the money for the drugs, and brought the drugs
back to her customer. Defendant Williams gave her extra bags of drugs for making the
exchange. She would also ask her customers to give her one of their bags for her efforts.
She estimated that she purchased heroin for herself or her customers from Defendant
Williams approximately fifteen to twenty times per day. She recalled that Mr. Addeo and
Ms. Christian would purchase drugs at 1926 Massachusetts as many as five times per
day. At this point, Ms. Jones was consuming between ten and twenty bags of heroin a
day, and Mr. Miller was consuming between twenty and thirty bags per day.

      Ms. Jones recalled that Mr. Vaughn purchased between twenty to thirty bags of
                                           12
heroin from her, which she got from Defendant Williams every day or every other day.
Defendant Click also purchased “hundreds of dollars worth” of heroin every day or every
other day from Defendant Williams. Co-Defendant Arwood also purchased heroin every
day or every other day. Defendant Click and Co-Defendant Arwood purchased heroin
from Defendant Williams.

      Ms. Jones reiterated that, if she could not purchase heroin from Defendant
Williams but needed it, she would purchase it from Defendant Abrams at Townview
Apartments. She also purchased heroin from “Jerome Brewer” a/k/a “Rome,” at the
same location. Defendant Williams had given Ms. Jones the contact information for both
Defendant Abrams and Mr. Brewer.

        Ms. Jones said that she knew the CI that worked with Detective Jinks because he
was her best friend’s ex-boyfriend. The CI and her best friend, Crystal, had purchased
heroin from Defendant Williams at both 5131 Spring Valley and 1926 Massachusetts.
She acted as an intermediary between the CI and Defendant Williams. Ms. Jones said
that Defendant Williams purchased a maroon car from the CI. Ms. Jones identified a
recording of a phone conversation between the CI and herself. She said that, during the
conversation, the CI asked her if it was “good” to come over, which she understood to
mean was Defendant Williams present and available to sell him heroin. During the
conversation, the two also discussed Crystal receiving drug treatment at Bradford. The
State showed the videotaped drug transaction, and Ms. Jones answered questions
regarding the drug purchase. She identified Defendant Williams’s car in the video parked
in the backyard of 1926 Massachusetts. She identified Mr. Addeo. She said that, when
she was not on the video, she had gone into the bedroom to get heroin for the CI. She
identified the bags of heroin being exchanged on the video. She identified a second video
of a similar drug transaction during which the CI brought money to her at 1926
Massachusetts, and she gave the money to Defendant Williams, who gave her heroin in
exchange, and she then gave those baggies to the CI.

       Ms. Jones described the events leading to the search warrant execution and her
subsequent arrest. She said that she was at 1926 Massachusetts with her friends “Patrick
and Skye,” both of whom were there to purchase heroin from Defendant Williams.
Defendant Williams was not yet there, and they noticed an unmarked police car outside.
She called Defendant Williams to let him know, but the car left, so she hung up without
informing Defendant Williams about the car. Ms. Jones said that the parties present were
anxious to get the drugs that they wanted. When Defendant Williams arrived, he went
into the bedroom from which he sold drugs. Ms. Jones followed him and got some drugs
for “Patrick.” She came out of the bedroom and then returned to the bedroom to
purchase more drugs, at which time the police entered the home and ordered everyone to
get onto the floor. Ms. Jones said that Defendant Williams ran to the bathroom where
                                           13
police apprehended him.

        Ms. Jones identified some photographs taken by police at 1926 Massachusetts.
She identified a picture of her phone. She said that Defendant Williams had a key to
1926 Massachusetts, which she had given to him on a pink key ring that bore her name.
She also identified needles, which she explained that she used to inject drugs. She
identified Defendant Williams’s prepaid cell phone, which he had told her was not
traceable.

       Ms. Jones testified about the contact information found on her phone. She said
that Ms. Stafford was a customer who called her to purchase heroin. She identified
contact information for Ms. Broyles; Mr. Vaughn; Defendant Click and Co-Defendant
Arwood (who both used the same phone); Mr. Miller; Defendant Abrams; Mr. Addeo;
and Defendant Williams.

       Ms. Jones then identified text messages exchanged between her phone and the
contacts listed above that referenced the sale or purchase of heroin. In one of those
messages; Ms. Jones stated that Defendant Williams was out of heroin but that she could
purchase some from Defendant Abrams. Ms. Jones identified multiple messages in
which she arranged for the purchase of heroin from Defendant Williams or Defendant
Abrams. She said that she sent a message on January 14, 2013, in which she asked to
purchase heroin from Defendant Abrams. She then read a message from her to Mr.
Vaughn from January 15, 2013, before the search warrant was executed, in which she
discussed his coming to purchase heroin at 1926 Massachusetts when Defendant
Williams arrived.

       Ms. Jones identified a text message from Defendant Williams’s cell phone to
Defendant Abrams in which Defendant Williams complained about a woman named
“Brandy” bringing Ms. Broyles, who was wearing a law-enforcement-issued monitoring
ankle bracelet, to the home from which he sold heroin. Ms. Jones said that, in response
to this event, Defendant Williams told her to get a new cell phone and not give the
contact information to Ms. Broyles.

       During cross-examination, Ms. Jones testified that, when she spoke with Detective
Jinks, she used the word “medicine” to describe the heroin. Ms. Jones said that she
moved into 5131 Spring Valley shortly after Ms. Broyles moved there. Ms. Jones said
that Defendant Williams gave both she and Ms. Broyles free heroin on occasion. Ms.
Jones said that, during the time that she was selling and using heroin, she could not go a
day without using. If she could not get in touch with Defendant Williams or Defendant
Abrams, she would contact “Mall.” When she purchased drugs from “Mall,” they were
packaged differently. Ms. Broyles also put Ms. Jones in contact with a dealer named
                                           14
“D,” but Ms. Jones did not purchase from him frequently because she did not like his
product. Ms. Jones testified that she felt that she was more of a drug user than a drug
dealer. She said that she felt that she was helping other people from being sick in order
to keep herself from being sick.

       Upon questioning by Defendant Abrams’s attorney, Ms. Jones said that she knew
Defendant Abrams from when she lived at 5131 Spring Valley, recognizing him as
someone who sold other drugs from Townview Apartments. Ms. Jones said that she
occasionally used crack cocaine, but it was not as addictive to her. She was unsure
whether she mentioned Defendant Abrams during the first interview with Detective Jinks.

       Upon further questioning, she said that she also did not mention Defendant Click
or Co-Defendant Arwood during her first interview. She said she only served as a middle
man for Defendant Click and Co-Defendant Arwood “[a] few times.” She agreed that
she had seen Defendant Click use up to five bags of heroin intravenously at a single time.
Ms. Jones opined that she could not do the same and that she had only ever used two bags
simultaneously.

        Derrick Miller, Ms. Jones’s boyfriend, testified that he was a recovering drug
addict who had abused heroin and that he had a prior criminal history. Mr. Miller
testified that he knew Defendants Williams and Abrams. He confirmed that he lived at
5131 Spring Valley with Ms. Broyles and Ms. Jones and that, while he lived there, he
primarily purchased his heroin from Defendant Williams. Mr. Miller confirmed Ms.
Jones’s testimony about moving to the house at 1926 Massachusetts and about Defendant
Williams’s selling heroin from that house. Mr. Miller testified that he purchased heroin
directly from Defendant Williams for himself and for others. Defendant Williams often
gave him an extra bag or two in return for his sales. Mr. Miller confirmed that he called
Defendant Abrams to get heroin if Defendant Williams were unavailable. He said that he
used his cell phone to contact Defendants Williams and Abrams to arrange for the
purchase of heroin. Mr. Miller testified that he purchased heroin from Defendant Abrams
at the Townview Apartments, located at 442 Arbor Place, or at Defendant Abrams’s
apartment on Pickett Avenue. He purchased heroin from Defendant Abrams at 1423
Pickett on “countless” occasions, at least forty or fifty. Mr. Miller described the
Townview Apartments where he also purchased heroin. Mr. Miller testified that he had
seen Defendant Click and Co-Defendant Arwood at 1926 Massachusetts purchasing
heroin from Defendant Williams.

        Melissa Thomas, with the Department of Human Services child care licensing,
testified that her responsibilities included keeping track of the day care and child care
facilities in Knox County, Tennessee. Ms. Thomas said that there was a child care
facility, “Thomas’ Tiny Tots,” which was located at 3201 Sanderson Road in Knoxville,
                                           15
Tennessee and continuously in operation between June 2012 and March 2013. She
identified a second child care facility, “Marcia’s Family Home Day Care,” which was
located at 1411 Exeter Road, and continuously in operation between June 2012 and
March 2013. Ms. Thomas identified a third child care facility, “Y Child Care Agency”
located at 800 Townview Drive, which was in existence between June 2012 and March
2013.

        Douglas Ryerkerk, who was employed with Knox County School Security,
testified that Green Magnet School was a public school that was in existence in June
2012 through March 2013 and located on Townview Drive. He identified Maynard
Elementary School as another public school that was located on College Drive and said
that it was open between June 2012 and March 2013.

       Donna Roach testified that she worked for the Knox County Geographic
Information System, a department which created maps that included drug-free zones, etc.
The Townview Apartments located on Arbor Place also fell within several school and
day care drug-free zones. 1423 Pickett Avenue also fell within a school zone.

       John Turner, a detective with the City of Sevierville Police Department, testified
that he was assigned to the narcotics division. As part of one of his investigations, he
developed a confidential informant (“CI 2”). CI 2 came to Detective Turner wanting to
earn money for undercover drug purchases, informing him that he could call Defendant
Click to make a heroin purchase. In September 2012, CI 2 made purchases in Sevier
County from Defendant Click and Co-Defendant Arwood. Detective Turner testified that
the purchase was initiated by CI 2 calling the Defendant Click’s phone number to arrange
a drug purchase on September 5, 2012. The detective testified about the subsequent drug
transaction that occurred between CI 2 and Defendant Click in which the CI gave
Defendant Click and Co-Defendant Arwood $25 in exchange for a blue Ziploc baggie,
the top of which appeared to be heat-sealed, that appeared to contain heroin. Detective
Turner testified that a similar transaction occurred on September 10, 2012, during which
CI 2 purchased from Defendant Click a substance that appeared to be heroin, packaged
similarly to the September 5 purchase. Detective Turner testified that CI 2 arranged a
third drug purchase on September 11, 2012, and the drug transaction occurred similarly
to the other two, with Defendant Click and Co-Defendant Arwood providing the drugs
packaged consistently with the other two drug buys in exchange for money. Detective
Turner video recorded the drug transactions, copies of which the State offered into
evidence.

       Detective Turner testified that he was present when Co-Defendant Arwood made
her statement to police on January 24, 2013. She told officers that she purchased her
heroin in Knoxville from “Jersey” and “Mumbles” for ten dollars a bag and then returned
                                           16
to Sevierville and sold them for between fifteen and twenty dollars a bag.

       CI 2 testified and confirmed Detective Turner’s testimony about the drug
transactions. He agreed he was at the time of trial incarcerated on charges of promotion
of methamphetamine manufacture; his arrest occurring after he worked for law
enforcement in this case. He conceded that he had prior convictions. CI 2 said he and
Defendant Click had known each other for CI2’s whole life, and, when the two spoke in
August 2012, Defendant Click mentioned that he could get CI 2 heroin. CI 2 approached
Detective Turner with this information, which led to the controlled drug buys. CI 2 said
that each time that he purchased heroin from Defendant Click, Co-Defendant Arwood
accompanied Defendant Click, and on two of those occasions Co-Defendant Arwood was
driving the car in which the two arrived.

        During cross-examination, CI 2 testified that he knew that both Defendant Click
and Co-Defendant Arwood were drug users. He said that he had never seen Defendant
Williams before the trial. He agreed that he and Defendant Click used heroin together
after the controlled drug buys in this case.

       Erica Stoner, a TBI special agent forensic scientist, testified that she tested the
evidence from the three controlled drug buys conducted by Detective Turner and CI 2.
She confirmed that the evidence tested was heroin in the following amounts: 0.05 grams,
0.07 grams, and 0.07 grams, respectively.

       Phillip Major, a sergeant with the Knoxville Police Department, testified that he
set up surveillance at 1423 Pickett as part of this investigation. He saw Defendant
Abrams leave this address and get into his vehicle, and Sergeant Major arrested
Defendant Abrams on March 21, 2013. He said that, also as part of this investigation, he
met with Defendant Abrams’s girlfriend, Ms. Parker. He called her cell phone while in
her presence and determined that her cell phone number was 865-230-XXXX.5

       Dan Crowe testified that he owned 1423 Pickett and that Ms. Parker leased that
home from him and had since April 2012. At the time of trial, she still occupied and paid
for the residence. Mr. Crowe said that he saw Defendant Abrams present at the house at
times when Mr. Crowe repaired something for the tenants. During cross-examination,
Mr. Crowe testified that Pickett Avenue was a “quiet” street, and he did not notice an
excessive amount of traffic at the house.

       Carrie Roe testified that she was a recovering drug addict, and she had purchased
drugs from Defendant Abrams. Ms. Roe said that she began by using five bags of heroin

5 For privacy, we will omit the last four digits of the phone number.
                                                    17
a day, but, at her peak, she consumed between ten and fifteen bags of heroin per day.
Ms. Roe said that she had intermittently sold drugs to support her habit. She said that,
between June 2012 and March 2013 when she was selling and using heroin, she lived in
Townview Towers, which was walking distance from Arbor Place. She said she would
text Defendant Abrams to purchase heroin and then meet him at Arbor Place apartments,
number 442. Ms. Roe said that she went through “parking lot C,” and then to Defendant
Abrams’s apartment on the top floor. Ms. Roe testified that she had also cleaned
Defendant Abrams’s apartment for two bags of heroin. She described the bags that she
purchased for $10 per bag and that he gave her for work as “little black bags” that were
heat-sealed on the top. Ms. Roe testified that she only saw Defendant Abrams at the
apartment in the evening.

       Ms. Roe testified that Defendant Abrams told her that if he were unavailable for
the purchase of heroin, Ms. Roe could contact Jerome Brewer. Ms. Roe said that she also
purchased heroin from Mr. Addeo and Ms. Christian, who also lived at Townview, and
with whom she sometimes resided. She said that she had accompanied Mr. Addeo and
Ms. Christian to go purchase heroin at a house on Massachusetts Avenue, but she said
that she always stayed in the car.

       During cross-examination, Ms. Roe said that she had gotten heroin from
“Mumbles” before but that it was always through a third party. She said she had never
seen Defendant Williams. Ms. Roe testified that she also used crack cocaine at the time
of these events. Upon further cross-examination, Ms. Roe testified that she had empty
bags of heroin in her possession at the time of her arrest. Ms. Roe agreed that she also
used a third party to purchase heroin from “Mall.” Ms. Roe looked through her phone
and agreed that there were no messages sent to Defendant Abrams’s phone. There were,
however, text messages sent to Mr. Brewer, Mr. Addeo, and Ms. Christian.

       Charles Nelson testified he worked for Laurel Wood Housing, which managed
Arbor Place Apartments. Stephanie Parker leased apartment number 442, and her lease
was terminated on April 2, 2013.

      The parties then stipulated that Defendant Williams had a prior felony drug-related
conviction.

       Based upon this evidence, the jury convicted Defendants Williams, Click, and
Abrams of twelve counts of conspiracy to possess or sell heroin and that the offenses
occurred within 1000 feet of a drug-free school zone (“DFSZ”). The jury additionally
convicted Defendant Williams of multiple other drug and firearms-related offenses. The
trial court merged the conspiracy to sell convictions into one conviction for each
defendant. It is from these judgments that the defendants now appeal.
                                           18
                                             II. Analysis

        On appeal, Defendants Williams and Click contend that the trial court erred when
it failed to hold a pretrial hearing to determine whether a conspiracy existed. All three
defendants contend that the evidence is insufficient to sustain their convictions for
conspiracy. Defendant Click additionally contends that the trial court erred when it
allowed him to be convicted of the common law crime of conspiracy.

                   A. Pretrial Hearing Regarding Existence of Conspiracy

        Defendants Williams and Click contend that the trial court erred when it failed to
hold a pretrial hearing to determine whether a conspiracy existed. They note that they
filed a motion for a pretrial hearing on November 20, 2013, which the trial court heard
and denied. In its order, the defendants note, the trial court stated that the State had
declared its intention not to introduce any statements made by co-conspirators to law
enforcement. The defendants assert that at trial, however, the State’s witnesses testified
to hearsay statements made by co-conspirators; Defendant Williams calling the
proceeding “hearsay drunk.” The defendants claim that the trial court’s failure to hold a
pretrial hearing about whether a conspiracy existed opened up a “Pandora’s box” of
inadmissible evidence and prohibited the defendants from confronting their accusers.
The State counters that pursuant to Tennessee law the trial court is permitted to make a
ruling on the existence of a conspiracy after hearing the State’s evidence, which is what
the trial court did in this case. The State posits that there was, therefore, no error.

       The “Pandora’s box” referred to by the defendants herein, refers to hearsay
statements admitted by the trial court during the trial over the defendants’ objections.6
Hearsay is an out-of-court statement offered in court “to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). However, Tennessee Rule of Evidence 803(1.2)(E)
provides an exception to the hearsay rule for a statement offered against a party that is a
statement by a co-conspirator of a party during the course of and in furtherance of the
conspiracy. “A conspiracy is defined as a combination between two or more persons to
do a criminal or unlawful act . . . .” State v. Alley, 968 S.W.2d 314, 316 (Tenn. Crim.
App. 1997). Tennessee Code Annotated section 39-12-103(a) (2018) states the offense of
conspiracy is committed if:

        two (2) or more people, each having the culpable mental state required for
        the offense which is the object of the conspiracy and each acting for the

6 While the State has agreed pretrial not to admit statements made by co-conspirators to law enforcement,
the trial court ruled on each objection made by the defendants, finding that in some instances that the
testimony was cumulative or elicited in response to questions posed by the defendants’ attorneys.
                                                   19
       purpose of promoting or facilitating commission of an offense, agreed that
       one (1) or more of them will engage in conduct which constitutes such
       offense.

A conspiracy can be shown by “an implied understanding between the parties,”
circumstantial evidence, and the conduct of the parties. State v. Gaylor, 862 S.W.2d 546,
553 (Tenn. Crim. App. 1992).

        In State v. Hodgkinson, 778 S.W.2d 54, 61 (Tenn. Crim. App. 1989), this court
held that co-conspirator hearsay may be admitted pursuant to Tennessee Rule of
Evidence 803 (1.2)(E) when: “(1) the declaration was made in furtherance of the
conspiracy; (2) it was made during the pendency of the conspiracy; and (3) there is
independent proof of the existence of the conspiracy and the connection of the defendant
to the declarant and the defendant to do it.” State v. Hutchison, 898 S.W.2d 161, 169
(Tenn. 1994) (citing Hodgkinson, 778 S.W.2d at 61). Tennessee Rule of Evidence
803(1.2)(E) does not require the trial court to determine that a conspiracy existed before
allowing a co-conspirator’s statements into evidence. See N. Cohen, D. Paine, and S.
Sheppeard, Tennessee Law of Evidence, § 803(102) (2nd ed. 1990). Further, Tennessee
Rule of Evidence 104(b) permits the trial court to allow the introduction of proof subject
to the subsequent introduction of evidence that would make it relevant. Thus, while some
initial proof of a conspiracy is required before the introduction of a co-conspirator’s
declarations, the trial judge may permit the declaration conditioned on the fact that a
conspiracy will later be established by additional evidence. See Gaylor, 862 S.W.2d at
553. In summary, the requirement of independent proof of conspiracy may be satisfied
after the admission of evidence. Hutchinson, 898 S.W.2d at 169 (citing Solomon v. State,
76 S.W.2d 331 (1934)).

       The Sixth Circuit Court of Appeal articulated its standard for admitting co-
conspirator hearsay in United States v. Vinson, 606 F.2d 149, 153 (6th Cir. 1979), cert.
denied, 444 U.S. 1074, reh’g denied, 445 U.S. 972 (1980). In Vinson, the Sixth Circuit
held that a defendant can make a “continuing” hearsay objection while the statements of
conspirators are admitted pending a finding that a conspiracy exists. Id. Vinson
emphasizes the importance of the court’s eventual explicit finding that a conspiracy was
more likely than not to have existed being clearly stated. Id.

        The record evinces, and the defendants agree, that the trial court in this case made
an explicit finding that a conspiracy existed. We turn, therefore, to address whether the
trial court erred when it did not make this finding pretrial. United State v. James, 590
F.2d 575 (6th Cir. 1997), cited by Defendant Williams, states that, when it is reasonably
practical, the trial court should require the showing of a conspiracy before admitting
declarations of a co-conspirator. That said, the James opinion goes on to state that if the
                                            20
trial court determines that it is not reasonably practical to require this showing before
admitting evidence, the trial court may admit the statement subject to the conspiracy
being proven later. Id. As always, determinations about the admissibility of evidence
rest within the trial court’s sound discretion, and this court will not overturn a trial court’s
decision regarding the admissibility of evidence absent an abuse of that discretion. State
v. Clayton, 535 S.W.3d 829, 859 (Tenn. 2017). A trial court is found to have abused its
discretion when it “applies an incorrect legal standard or reaches a conclusion that is
‘illogical or unreasonable and causes an injustice to the party complaining.’” State v.
Lewis, 235 S.W.3d 136, 141 (2007) (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006)).

        The trial court in this case ruled on the defendants’ motion for a pretrial
determination about the existence of a conspiracy. The trial court denied the motion,
finding that due to the number of defendants and witnesses it would be extremely
impractical and inefficient to have what would amount to a trial before the trial to
determine the existence of a conspiracy. We conclude that the trial court did not abuse its
discretion in this regard. As previously stated, a trial court may admit statements of co-
conspirators before it makes the determination that a conspiracy existed. The trial court
chose this course in this case, ultimately determining after hearing the evidence that a
conspiracy existed. This was not an abuse of its discretion, and the defendants are not
entitled to relief as to this issue.

                          B. Sufficiency of Evidence of Conspiracy

       Defendants Williams, Abrams, and Click all contend that the evidence is
insufficient to sustain that a conspiracy occurred or that the conspiracy in this case
occurred within a Drug Free School Zone (“DFSZ”). They argue that the State failed to
prove that there was a formal or expressed agreement, as required to prove a conspiracy,
between them or anyone else to sell heroin. They further contend that the jury rejected
the only “overt act” listed in the presentment as occurring within a DFSZ and, therefore,
their conviction for the DFSZ conspiracy should be reversed and dismissed. The State
counters that the State offered evidence that Defendant Williams used Defendant Click as
an intermediary between himself and other heroin buyers. It further presented evidence
that Defendant Williams told his intermediaries to purchase heroin from Defendant
Abrams in the event that he was out of town or unavailable to sell heroin to them. The
State further contends that, while the jury declined to find the defendants guilty of the
offense elected to have occurred in a school zone, the jury considered the evidence and
properly determined that the conspiracy occurred within a school zone.

       When an accused challenges the sufficiency of the evidence, this court’s standard
of review is whether, after considering the evidence in the light most favorable to the
                                              21
State, “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 Tenn. R.
App. P. 13(e); State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid,
91 S.W.3d 247, 276 (Tenn. 2002)). This standard applies to findings of guilt based upon
direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App.
1999) (citing State v. Dykes, 803 S.W.2d 250, 253 (Tenn. Crim. App. 1990)). In the
absence of direct evidence, a criminal offense may be established exclusively by
circumstantial evidence. Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973). “The jury
decides the weight to be given to circumstantial evidence, and ‘[t]he inferences to be
drawn from such evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence, are questions primarily for the jury.’” State v.
Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable v. State, 313 S.W.2d 451, 457
(Tenn. 1958)). “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)).

       In determining the sufficiency of the evidence, this Court should not re-weigh or
reevaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App.
1990). Nor may this Court substitute its inferences for those drawn by the trier of fact
from the evidence. State v. Buggs, 995 S.W.2d 102, 105 (Tenn. 1999) (citing Liakas v.
State, 286 S.W.2d 856, 859 (Tenn. 1956)). “Questions concerning the credibility of
witnesses, the weight and value to be given the evidence, as well as all factual issues
raised by the evidence are resolved by the trier of fact.” State v. Bland, 958 S.W.2d 651,
659 (Tenn. 1997). “A guilty verdict by the jury, approved by the trial judge, accredits the
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). The Tennessee Supreme
Court 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, 527 (Tenn. 1963)). This Court must afford the State of Tennessee the “‘strongest
legitimate view of the evidence’” contained in the record, as well as “‘all reasonable and
                                             22
legitimate inferences’” that may be drawn from the evidence. Goodwin, 143 S.W.3d at
775 (quoting State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of
guilt against a defendant removes the presumption of innocence and raises a presumption
of guilt, the convicted criminal defendant bears the burden of showing that the evidence
was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516,
557-58 (Tenn. 2000) (citations omitted).

       Before deciding whether the DFSZ penalty applies, we must first determine
whether the proof is sufficient to prove that the defendants conspired to possess heroin
with the intent to sell. The defendants were charged with conspiracy to possess heroin
with the intent to sell, an offense that requires the prosecution to prove that:

       two (2) or more people, each having the culpable mental state required for
       the offense which is the object of the conspiracy and each acting for the
       purpose of promoting or facilitating commission of an offense, agreed that
       one (1) or more of them will engage in conduct which constitutes such
       offense.

T.C.A. § 39-12-103(a). A conspiracy is “an agreement to accomplish a criminal or
unlawful act.” State v. Pike, 978 S.W.2d 904, 915 (Tenn. 1998). The agreement “need
not be formal or expressed, and it may be proven by circumstantial evidence.” Id.
“‘Conspiracy implies concert of design and not participation in every detail of
execution.’” State v. Shropshire, 874 S.W.2d 634, 641 (Tenn. Crim. App. 1993) (quoting
Randolph v. State, 570 S.W.2d 869, 871 (Tenn. Crim. App. 1978)). “No person may be
convicted of conspiracy to commit an offense unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by the person or by another with
whom the person conspired.” T.C.A. § 39-12-103(d) (2018).

                             1. Conspiracy to Possess Heroin

       In this case, the convictions all merged into Count 1, which was conspiracy to
possess over 150 grams of heroin with the intent to sell or deliver. Our Criminal Code
provides that “[i]t is an offense for a defendant to knowingly . . . [p]ossess a controlled
substance with intent to manufacture, deliver or sell such controlled substance.” T.C.A. §
39-17-417(a)(4) (2018). Heroin is a Schedule I controlled substance. T.C.A. § 39-17-
406(c)(11) (2018).

       We conclude that the State offered sufficient proof to sustain the defendants’
convictions. The evidence showed that Defendant Williams packaged heroin for resale
into small heat-sealed Ziploc baggies. He did this in the presence of Defendant Abrams.
Defendant Williams did not allow just anyone to come into his office and purchase
                                            23
heroin, but he required that they go through an intermediary, to whom Defendant
Williams gave extra heroin for their efforts. Among the intermediaries were Ms. Jones,
Ms. Broyles, Ms. Christian, Mr. Addeo, Defendant Click and Co-Defendant Arwood. In
fact, Defendant Williams used Ms. Jones as an intermediary, as seen in the video
recorded transactions with the CI. When Defendant Williams ran out of heroin, he
encouraged his intermediaries to purchase heroin from Defendant Abrams, who then sold
them heroin. Both Ms. Jones and Mr. Addeo purchased heroin, packaged and priced
similarly, from Defendant Abrams on multiple, even “countless” occasions. Defendant
Williams sold heroin to Defendant Click and Co-Defendant Arwood, who then resold the
heroin in Sevierville. Multiple witnesses testified that Defendant Williams and
Defendant Abrams knew that they were reselling the heroin that they purchased. The
jury properly concluded that the evidence was sufficient to prove that there was an
agreement among the defendants to possess heroin with the intent to sell. The amount of
heroin possessed, as testified to by witnesses, was over 150 grams.

       We further conclude that the evidence was sufficient to prove that the defendants
each committed an overt act in furtherance of the conspiracy. As previously stated, “No
person may be convicted of conspiracy to commit an offense unless an overt act in
pursuance of such conspiracy is alleged and proved to have been done by the person or
by another with whom the person conspired.” T.C.A. § 39-12-103(d) (2018). The State
offered four overt acts to support the conspiracy convictions:

              1.     Defendant . . . Williams distributed more than 150 grams of
       heroin to [Co-Defendant] Arwood, [Defendant] Click, [Ms.] Christian,
       [Mr.] Addeo, [Ms.] Jones, [Mr.] Miller, and Susan Broyles.

              2.    Defendant . . . Abrams distributed heroin to . . . [Ms.] Roe
       within one thousand feet of a public school, child care agency, and public
       park;

            3.     [Co-]Defendant . . . Arwood received heroin from [Mr.]
       Addeo and [Defendant] Williams for further distribution;

             4.    Defendant . . . Click received heroin from [Mr.] Addeo and
       [Defendant] Williams for further distribution.

The jury found that the State had proven overt acts 1, 3, and 4 beyond a reasonable doubt,
but it found that the State had not proven overt act 2 beyond a reasonable doubt. The
evidence presented supports the jury’s finding. The evidence presented showed that
Defendant Williams sold heroin to the aforementioned intermediaries, many of whom
testified at the trial. Their testimony clearly supported that the amount of heroin sold was
                                            24
over 150 grams. The testimony further indicated that both Co-Defendant Arwood and
Defendant Click purchased heroin from Defendant Williams and resold that heroin.
Because we previously concluded that the evidence sufficiently proved an agreement
among all four defendants and because we now conclude that it sufficiently proved that
an overt act in furtherance of the conspiracy was committed by at least one of the
defendants, we conclude that the evidence is sufficient to support all three defendants’
convictions for conspiracy to possess with intent to sell or deliver 150 grams or more of
heroin.

                                     2. DFSZ Penalty

       As previously stated, the defendants take issue with the DFSZ penalty being
applied. They acknowledge that cases from this court have held that proof that the drug
offense was committed in a DFSZ is not an essential element of the offense but rather
only subjects a defendant to an enhanced penalty if the jury determines beyond a
reasonable doubt that any part of the sale occurred within a DFSZ. They contend,
however, that in accordance with law from the United States Supreme Court, because the
DFSZ Act increases the penalty for a crime beyond the statutory maximum then it must
be submitted to a jury as an element of the offense, citing Apprendi v. New Jersey, 530
U.S. 466, 490 (2000).

        We disagree with the defendants and decline to reject the precedent of this court.
This court has made clear that the Drug-Free School Zone Act does not create a separate
criminal offense but “merely imposes a harsher penalty for violations of Tenn[essee]
Code Ann[otated section] 39-17-417 occurring within a [drug free] zone.” State v. Smith,
48 S.W.3d 159, 168 (Tenn. Crim. App. 2000); see T.C.A. § 39-17-432(b). Therefore,
“proof that the drug crime was committed in a [drug free] zone is not an essential element
of the 39-17-417 offense.” State v. Arturo Jaimes-Garcia, No. M2009-00891-CCA-R3-
CD, 2010 WL 5343286, at *18 (Tenn. Crim. App. Dec. 22, 2010), perm. app. denied
(Tenn. May 31, 2011). Thus, for a person charged with selling or possessing a controlled
substance, the enhanced penalty is triggered if the jury determines beyond a reasonable
doubt that any part of the sale or possession occurred in a drug free zone. See State v.
Timothy Allen Johnson, No. M2015-01160-CCA-R3-CD, 2016 WL 3435589, at *4
(Tenn. Crim. App. June 15, 2016) (holding evidence sufficient to support conviction for
sale within a school zone when location where money was exchanged was within the
school zone even though drugs were exchanged after defendant and undercover officer
left that location), perm. app. denied (Tenn. Oct. 19, 2016); cf. Arturo Jaimes-Garcia,
2010 WL 5343286, at *13 (rejecting defendant’s contention that conviction for
conspiracy to sell 300 grams or more of cocaine in a drug free school zone required proof
of an agreement to sell within a school zone and holding that enhanced penalty was
triggered when defendant’s overt act in furtherance of the conspiracy took him within
                                           25
1000 feet of a school); see also State v. Cody Darand Marks, No. M2018-00020-CCA-
R3-CD, 2018 WL 6992553, at *4 (Tenn. Crim. App., at Nashville, Nov. 13, 2018), perm.
app. denied (Tenn. Mar. 28, 2019).

        Under the Drug-Free School Zone Act, when the offense occurs within 1000 feet
“of the real property that comprises a . . . preschool, child care agency, or public library,
recreational center or park . . . .” T.C.A. § 39-17-432(b)(1), (3). The defendant “shall be
required to serve at least the minimum sentence for the defendant’s appropriate range.”
T.C.A. § 39-17-432(c). This section is part of the Drug–Free School Zone Act, which is
intended to “provid[e] all students in this state an environment in which they can learn
without the distractions and dangers that are incident to the occurrence of [illegal] drug
activity in or around school facilities.” T.C.A. § 39-17-432(a); see also State v. Fields,
40 S.W.3d 435, 439 (Tenn. 2001).

       To support their allegation of conspiracy to sell heroin in a DFSZ, in counts 1, 2
and 7, 8 the State alleged:

              The Grand Jurors for the State of Tennessee, upon their oaths,
       present that [Defendant] Williams . . . [Defendant] Abrams . . . [Defendant]
       Click . . . and [Co-Defendant] Arwood . . . on or about the last day of June,
       2012, and on . . . diverse dates between that date and the 14th day of
       March, 2013, in [Knox County, Tennessee] . . . did knowingly conspire and
       agree with another, and with others known and unknown to the Grand Jury,
       that one or more of them would engage in conduct that constitutes the
       offense of possession with intent to sell 150 grams or more of a substance
       containing heroin, a Schedule I controlled substance, and that at least one
       overt act of the conspiracy occurred within one thousand feet of the real
       property that comprises a school, with each defendant having the culpable
       mental state required for the commission of the offense, and with each
       defendant acting for the purpose of promoting or facilitating the
       commission of the offense, and in furtherance of the conspiracy, at least
       one defendant committed the following overt acts:

   1. Defendant . . . Williams distributed more than 150 grams of heroin to [Co-
      Defendant] Arwood, [Defendant] Click, [Ms.] Christian, [Mr.] Addeo,
      [Ms.] Jones, [Mr.] Miller, and Susan Broyles.

   2. Defendant . . . Abrams distributed heroin to . . . [Ms.] Roe within one
      thousand feet of a public school, child care agency, and public park;

   3. [Co-]Defendant . . . Arwood received heroin from [Mr.] Addeo and
                                             26
       [Defendant] Williams for further distribution;

   4. Defendant . . . Click received heroin from [Mr.] Addeo and [Defendant]
      Williams for further distribution.

Relying on the same overt acts, the State alleged similar facts in Counts 3-6 and 9-12 but,
in Count 3, 4, 9 and 10, the State alleged that the conspiracy occurred within 1000 feet of
real property that comprises a child care agency and, in Count 5, 6, 11 and 12, the State
alleged that the conspiracy occurred within 1000 feet of a park.

      When the jury announced its verdict, it announced for each count and for each
   defendant:

              We, the jury, find the defendant . . . guilty of conspiracy to possess
       with the intent to sell a substance containing heroin, a schedule I controlled
       substance . . . [in] the amount of 150 grams or more . . . [and that] this
       occurred within a thousand feet of a school [child care center or park,
       respectively]. . . .

The jury then found that the State had proven overt acts 1, 3, and 4, but concluded that it
had not proven overt act 2 occurred. The jury informed the trial court of the same
decision in all twelve counts for all four defendants, each time affirmatively finding that
the conspiracy occurred within 1000 feet of either a school, child care facility, or park.

       The jury concluded that the four defendants conspired to sell heroin, and as
previously discussed, the evidence is sufficient in that regard. It then informed the court
that the three overt acts that it found to have occurred: Defendant Williams distributing
heroin to the listed buyers; Defendant Williams distributing heroin to Defendant Click;
and Defendant Williams selling heroin to Co-Defendant Arwood; took them into a DFSZ
on multiple occasions, as indicated by the multiple counts. By its verdict, the jury
affirmatively found that some part of the three overt acts it found proven occurred within
a DFSZ. There was evidence presented that Defendant Williams sold heroin to the
aforementioned buyers at Arbor Place Apartments, which was within 1000 feet of a
school zone. There was also evidence that he sold heroin to Ms. Jones from 1423 Pickett,
which was the home in which Defendant Abrams resided and which also was within a
DFSZ. This court has previously stated, “Quite logically, the conspiracy to sell the drugs
could have occurred anywhere and there may be an overt act by one of the conspirators
that occurred inside a school zone. To hold otherwise would undermine the Legislature’s
intent when it enacted this statute.” Jaimes-Garcia, 2010 WL 5343286, at *13.
Accordingly, we conclude that, under these circumstances, a rational juror could infer
that that each defendant conspired to sell heroin and that at least a portion of the
                                            27
conspiracy occurred within a DFSZ. The defendants are not entitled to relief on this
issue.

                                C. Common Law Conspiracy

       Defendant Click contends that the presentment in this case improperly charged
him with a common law offense. He states that offense of conspiracy “to commit a drug
free school zone is not contained within the Tennessee Code.” We interpret that
argument to mean that his conspiracy to possess with intent to sell heroin conviction,
with the jury finding that the DFSZ penalty applied, is not an enumerated offense in the
Tennessee Code and, as such, it is a “common law” crime, so his conviction should be
dismissed. It appears that he takes issue with the State’s inclusion of the DFSZ language
within the body of the presentment.

       Under both the United States and the Tennessee Constitutions, a charging
instrument, such as an indictment, must inform the accused of “the nature and cause of
the accusation.” See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In addition to these
constitutional guarantees, the form of an indictment in Tennessee is prescribed by statute.
Tennessee Code Annotated § 40-13-202 directs that an indictment:

       state the facts constituting the offense in ordinary and concise language,
       without prolixity or repetition, in such a manner as to enable a person of
       common understanding to know what is intended, and with that degree of
       certainty which will enable the court, on conviction, to pronounce the
       proper judgment. . . .

At common law, pleading requirements for indictments were strict because the elements
of criminal offenses were not easily ascertainable by reference to a statute. State v. Hill,
954 S.W.2d 725, 728 (Tenn. 1997). The Tennessee Supreme Court explained that an
indictment is sufficient to satisfy the constitutional guarantees of notice to the accused if
the indictment contains allegations that (1) enable the accused to know the accusation to
which answer is required; (2) furnish the trial court an adequate basis for entry of a
proper judgment; and (3) protect the accused from a subsequent prosecution for the same
offense. Id. at 727 (citations omitted).

       In Hill, the Court added that “an indictment need not conform to traditionally strict
pleading requirements.” Id. at 727. Since common law offenses no longer exist, “we
now approach ‘attacks upon indictments, especially of this kind, from the broad and
enlightened standpoint of common sense and right reason rather than from the narrow
standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding.’”
Hill, 954 S.W.2d at 728 (quoting United States v. Purvis, 580 F.2d 853, 857 (5th Cir.
                                             28
1978)). In many decisions since Hill discussing the sufficiency of indictments,
Tennessee courts have repeatedly emphasized the relaxation of strict common law
pleading requirements.

       In accordance with this law, we conclude that Defendant Click’s presentment was
not invalidated by the inclusion of the DFSZ language in the presentment. The State in
the presentment alleged that the Defendant had conspired to possess with the intent to sell
or deliver heroin, citing Tennessee Code Annotated section 39-17-147, and that this
conspiracy took place in a DFSZ, citing Tennessee Code Annotated section 39-17-432.
As the State’s brief notes, it is bound to give Defendant Click notice that it sought to
enhance his sentence pursuant to the DFSZ Act. In so doing, it did not invalidate the
presentment. The presentment gave Defendant Click notice of the accusation against
him, gave the trial court adequate basis for entry of a judgment, and protected the
defendant from a subsequent prosecution for the same offense. As such, the indictment
was sufficient. Defendant Click is not entitled to relief on this issue.

                                     III. Conclusion

       After a thorough review of the record and the applicable law, we conclude that
there was no error and, as such, we affirm the trial court’s judgments.


                                                  ________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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