        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   March 6, 2012 Session

                  STATE OF TENNESSEE v. THORNE PETERS

                  Appeal from the Criminal Court for Shelby County
                      No. 09-07358    J. Robert Carter, Judge


                  No. W2011-00680-CCA-R3-CD - Filed May 9, 2012


A Shelby County Criminal Court jury convicted the defendant, Thorne Peters, of one count
of simple possession of marijuana, see T.C.A. § 39-17-418, and the trial court imposed a
sentence of 11 months and 29 days’ incarceration in the local workhouse; with respect to the
manner of service, the judgment said,“[T]ime served.” On appeal, the defendant challenges
the sufficiency of the evidence to support his conviction, the trial court’s granting the State’s
motion to quash a subpoena of the former sheriff, and the trial court’s limitation of cross-
examination of a witness. Discerning neither a paucity in the evidence nor reversible error
committed by the trial court, we affirm the judgment of the trial court but remand for
clarification of pretrial jail credit.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and A LAN E. G LENN, J., joined.

James P. Rossitt IV (on appeal and elbow counsel at trial), Memphis, Tennessee, for the
appellant, Thorne Peters (pro se at trial).

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Michael McCusker, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

              Shelby County Sheriff’s Office (“SCSO”) Detective Robert Jewell testified that
he was assigned to the Narcotics Unit Search Warrant Team in July 2009. He recalled that
the defendant ran a bar, Imbibrios, where authorities suspected the defendant sold illegal
drugs on a regular basis. Detective Jewell’s investigation required the use of a confidential
informant to “infiltrate” the bar, so he selected Ashley Egan as his “eyes and ears” inside the
bar. Detective Jewell testified that Ms. Egan had worked for him as a confidential informant
for approximately one and one-half years on more than a dozen cases and that her
information had been reliable in each investigation. Because Ms. Egan knew the defendant
through her boyfriend, an employee at Imbibrios, Detective Jewell determined she would be
used to make controlled purchases of illegal drugs from the defendant.

               Detective Jewell testified that on July 8, 2009, Ms. Egan telephoned the
defendant and asked the defendant if he could sell her one-half ounce of marijuana. The next
day, Ms. Egan telephoned the defendant to confirm that the defendant had acquired the
marijuana. Both of the telephone conversations were recorded. Digital recordings were
admitted at trial and played for the jury; however, the recordings were not included in the
record on appeal.

              After Ms. Egan’s confirming the defendant’s procurement of the marijuana,
Detective Jewell searched Ms. Egan and her vehicle, gave her marked currency in the amount
of $50, and watched her enter the defendant’s bar to purchase the marijuana. He did not,
however, “wire” Ms. Egan for the purpose of recording the actual transaction. Ms. Egan
returned from the bar a few minutes later with a “little more than seven grams of marijuana,”
about one-quarter ounce, and $25. Another detective field-tested the substance purchased
by Ms. Egan. The substance tested positive for the presence of tetrahydrocannabinol
(“THC”), confirming that it was marijuana.

              On cross-examination, Detective Jewell admitted that he did not “strip search”
Ms. Egan before sending her into the bar to purchase the marijuana. Likewise, he admitted
that he did not equip Ms. Egan with any monitoring device to record the transaction. He
maintained that she was not “wired” because it is “not required,” and he simply “didn’t
choose to” wire Ms. Egan. He acknowledged that, consequently, the only evidence in his
investigation that the defendant personally sold Ms. Egan the marijuana derived from Ms.
Egan’s statement. Detective Jewell testified that, several months after the completion of the
investigation into the defendant’s activities, Ms. Egan was arrested and placed in the drug
court diversion program. Detective Jewell said that he did not recover the $25 “buy money”
on July 9 because the investigation was ongoing at that time.

               SCSO Detective Alex Poston testified that he field-tested the substance
purchased by Ms. Egan and confirmed that it was marijuana. He delivered the marijuana to
the SCSO evidence and property room and later forwarded the evidence for testing at the
Tennessee Bureau of Investigation (“TBI”) Crime Laboratory. He explained that he and
Detective Jewell did not utilize any type of recording device during the actual purchase
because it is “not cost effective or efficient” and that they actually used such devices “maybe

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two to five percent of the time.”

            TBI Crime Laboratory testing confirmed that the substance recovered from Ms.
Egan was marijuana weighing 6.7 grams.

              Ashley Egan testified that, in the summer of 2009, she dated an Imbibrios
employee. She said that she and the defendant had used “weed, pills, and alcohol” together.
She said that Detective Jewell approached her in July 2009 about acting as a confidential
informant and that she agreed to assist in the investigation of the defendant’s activities at the
bar. She admitted to using “every drug you can imagine,” but she testified at trial that she
had been sober for 68 days.

               Ms. Egan contacted the defendant about purchasing one-half ounce of
marijuana. Ms. Egan testified that the defendant told her that “he was going to call his guy.”
Ms. Egan testified that on July 9, 2009, she went to Imbibrios, where she met the defendant
and purchased a quarter-ounce of marijuana. She recalled wearing shorts and a tank top.
Detective Jewell searched her vehicle and her person before she entered the bar. Inside the
bar, Ms. Egan ordered a drink and stayed a few minutes so as to not raise the defendant’s
suspicions. The defendant came to her seat, she asked him if he had the marijuana, and the
defendant told her “yes.” The defendant went to the “DJ” booth and returned with “a
quarter.” Ms. Egan paid the defendant $25 for the marijuana, stayed for a few more minutes,
and then left the bar to meet the detectives in a nearby parking lot, where she gave them the
marijuana and the remaining $25.

              On cross-examination, Ms. Egan testified that she became a confidential
informant following her arrest for prescription drug fraud. She indicated that she had never
“worn a wire” in any of her informant activities. She admitted that she was accused of
stealing $250 from the SCSO on December 3, 2010, and of stealing an automobile on
December 27, 2010. She agreed that in her first recorded telephone conversation with the
defendant, the defendant indicated that he did not have any marijuana. She explained,
however, that the defendant also “said that [he] could get it[,] just call before” coming by the
bar.

               With this proof, the State rested its case. The pro se defendant then testified
in a narrative form, stating “I smoke marijuana. I did not sell marijuana from my club.” On
cross-examination the defendant admitted to using marijuana since the age of 12. Likewise,
he acknowledged his penning the book Puffin’ Tuff My War for Weed by Kingpin Thorne
Peters. The defendant explained his belief that possession for resale differs from a “buddy
buy,” implying that what transpired between himself and Ms. Egan was a “buddy buy.” He
admitted that, during their telephone conversations, he told Ms. Egan that he could get her

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one-half ounce of marijuana for $50. He also admitted to telling Ms. Egan that he would
“make a call” and instructing her to “call before you come.”

                With this evidence, the jury convicted the defendant of simple possession of
marijuana. The trial court sentenced the defendant to 11 months and 29 days in the local
workhouse and, recognizing that the defendant had served almost 19 months in jail pending
trial, indicated on the judgment form “time served.” Although the trial court noted “time
served” in the special conditions section of the judgment form, the court failed to include any
notation concerning the pretrial jail credits earned by the defendant. Accordingly, we direct
the court on remand to enter a corrected judgment containing an accurate account of the
pretrial jail credits earned by the defendant.

               On appeal, the defendant challenges the sufficiency of the evidence to support
his conviction. He also contends that the trial court erred by quashing a subpoena for Mark
Luttrell and by limiting the defendant’s cross-examination of Ms. Egan concerning her
commission of two theft offenses. The State argues that the evidence is sufficient, that the
trial court properly quashed the subpoena based upon relevancy, and that the trial court
correctly excluded extrinsic evidence of Ms. Egan’s drug court diversion. The State also
concedes that the trial court erroneously limited the cross-examination of Ms. Egan but
argues that the error was harmless. We will address each argument in turn.

                                 Sufficiency of the Evidence

               The defendant argues that the evidence is insufficient to support his conviction
because Ms. Egan’s subsequent theft arrests caused a “fatal blow to her credibility as an
informant.” The State counters that circumstantial evidence supports Ms. Egan’s testimony
and, furthermore, that the defendant’s own admissions at trial establish sufficient evidence
to support his conviction.

              We review the defendant’s claim of insufficient evidence mindful that our
standard of review is whether, after considering 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. Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 324
(1979); State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003). This standard
applies to findings of guilt based upon direct evidence, circumstantial evidence, or a
combination of direct and circumstantial evidence. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011).

             When examining the sufficiency of the evidence, this court should neither re-
weigh the evidence nor substitute its inferences for those drawn by the trier of fact. Id..

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Questions concerning the credibility of the witnesses, the weight and value of the evidence,
as well as all factual issues raised by the evidence are resolved by the trier of fact. State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Significantly, this court must afford the State
the strongest legitimate view of the evidence contained in the record as well as all reasonable
and legitimate inferences which may be drawn from the evidence. Id.

               “It is an offense for a person to knowingly possess or casually exchange a
controlled substance . . . .” T.C.A. § 39-17-418(a). Pursuant to this statute, “[i]t is [also] an
offense for a person to distribute a small amount of marijuana not in excess of one-half (½)
ounce (14.175 grams).” Id. § 39-17-418(b). Any violation of these subsections is a Class
A misdemeanor. Id. § 39-17-418(c).

              In the present case, Detective Jewell testified that Ms. Egan telephoned the
defendant about getting one-half ounce of marijuana. Apparently, in the tape recorded
telephone calls, the defendant told her that he could “call his guy” and fulfill her request.
Ms. Egan met the defendant at his bar the next day where she purchased one-quarter ounce
of marijuana from the defendant. Detective Jewell searched Ms. Egan before she entered the
bar to make the purchase to ensure that she was not already possessing any marijuana.
Admittedly, Ms. Egan’s testimony is the only evidence that the defendant was the person who
actually passed the marijuana to her. The defendant cross-examined Ms. Egan concerning
her subsequent theft arrests, and Ms. Egan candidly admitted them. The jury chose to
accredit her testimony, as was within their province to do. Furthermore, the defendant
admitted on cross-examination that he agreed to procure the marijuana for Ms. Egan. We
conclude that the evidence is sufficient to support the defendant’s conviction for simple
possession in this case.

                                 Motion to Quash Subpoena

              The defendant also argues that the trial court erred by quashing his subpoena
of former sheriff Mark Luttrell. The State contends that this issue is waived due to the
defendant’s failure to include in the record on appeal the transcript of the motion for new
trial hearing. Although such an omission may, in some cases, result in a waiver of an
appellate issue, we discern that the record before this court is sufficient to review the
defendant’s claim.

              We review a trial court’s decision to quash a subpoena for an abuse of
discretion. State v. Womack, 591 S.W.2d 437, 443 (Tenn. Crim. App. 1979). The trial
court’s discretion is limited to situations when the issuance of the subpoena results in an
abuse of process. Bacon v. State, 385 S.W.2d 107, 109 (Tenn. 1964). Absent a showing of
an abuse of process, the trial court cannot interfere with a defendant’s ability to subpoena

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witnesses. Id. When a witness’s testimony is not relevant, the trial court may quash the
subpoena to avoid an abuse of process. Womack, 591 S.W.2d at 443.


               In the present case, the defendant sought issuance of a subpoena compelling
the attendance at trial of Mark Luttrell, former Shelby County Sheriff, based upon Mr.
Luttrell’s participation in the “sting” operation involving the defendant’s bar and subsequent
arrest on July 16. As grounds for the issuance of the subpoena, the defendant asserted that
Mr. Luttrell was part of a conspiracy to “plant and manipulate evidence” against the
defendant. From the record, we discern that the defendant was originally charged in a second
indictment with a felony drug offense surrounding events that occurred on July 16. The
events concerning the instant case occurred on July 9. At the motion to quash hearing, the
State announced that it would “nolle pros” the felony indictment concerning the July 16
arrest, thereby rendering former sheriff Luttrell’s purported involvement in the July 16 arrest
irrelevant to the remaining July 9 offense. From this record, we conclude that the trial
court’s granting the State’s motion to quash was not an abuse of discretion.

                               Limitation of Cross-Examination

                In his final issue, the defendant argues that the trial court improperly restricted
his cross-examination of Ms. Egan concerning two theft arrests that occurred after her
participation as a confidential informant in this case. The State again contends that this issue
is waived due to the defendant’s failure to include in the record on appeal the transcript of
the motion for new trial hearing. Alternatively, the State argues that the trial court
erroneously limited the cross-examination on the basis of the diversion status of the plea but
that the limitation was harmless. Although we agree that such an omission from the appellate
record may, in some cases, result in a waiver of an issue, we determine the record before this
court is sufficient to review the defendant’s claim.

               Prior to Ms. Egan’s testimony, the pro se defendant requested a hearing outside
the presence of the jury to determine the admissibility of court documents concerning Ms.
Egan’s January 2011 best interest plea to misdemeanor theft. The pro se defendant sought
admission of Ms. Egan’s January 2011 guilty plea petition placing her on drug court
supervision via a judicial diversion program, arguing that the evidence of the theft conviction
was relevant to rebut Detective Jewell’s testimony concerning Ms. Egan’s reliability as a
confidential informant and to attack Ms. Egan’s credibility as well. During the hearing, the
State acknowledged that Ms. Egan was arrested in December 2010 when, in her capacity as
a confidential informant, she took $250 that was to be used to purchase heroin and “went
AWOL.” The State also acknowledged Ms. Egan’s arrest two weeks later for automobile
theft.


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             The trial court ruled that the defendant could ask Ms. Egan if she had been
accused of the thefts but specifically precluded the introduction of any extrinsic evidence
concerning her arrest, guilty plea, or diversion status. The court conditioned this ruling to
Ms. Egan’s admission of the accusations and reserved ruling concerning the extrinsic
evidence’s admissibility if Ms. Egan denied the accusations. During her cross-examination,
Ms. Egan admitted that she had been accused of theft of $250 from the SCSO during a “sting
operation” and theft of an automobile.

               The State correctly notes that the trial court erroneously limited the cross-
examination of Ms. Egan. The trial court disallowed the evidence about the guilty pleas
because the charges had been diverted and no judgments of conviction had been entered at
the time of Ms. Egan’s testimony. Although neither the pro se defendant nor the State argued
via Tennessee Rules of Evidence 608 or 609 during the jury-out hearings, we discern the trial
court based its ruling on Rule 609, which addresses impeachment of a witness by conviction
of a crime. We, however, determine Rule 608 to be appropriate to our analysis. Rule 608(b)
provides:

              Specific instances of conduct of a witness for the purpose of
              attacking or supporting the witness’s character for truthfulness,
              other than convictions of a crime as provided in Rule 609, may
              not be proved by extrinsic evidence. They may, however, if
              probative of truthfulness or untruthfulness and under the
              following conditions, be inquired into on cross-examination of
              the witness concerning the witness’s character for truthfulness
              or untruthfulness . . . .

Tenn. R. Evid. 608(b). By contrast, Rule 609 concerns the admissibility of “evidence that
the witness has been convicted of a crime.” Tenn. R. Evid. 609(a).

              Although the trial court correctly concluded that there was no conviction at the
time of Ms. Egan’s testimony, the trial court failed to consider the admissibility of Ms.
Egan’s conduct via Rule 608(b). See State v. Jesse Ross Tolbert, No. E1999-02326-CCA-
R3-CD, slip op. at 3-5 (Tenn. Crim. App., Knoxville, Aug. 18, 2000) (noting that Rule 609
is inapplicable to judicial diversion offenses because “[w]hen judicial diversion is granted
a judgment of conviction is not entered in the record”). In Tolbert, this court ruled that Rule
608 allows for impeachment, via the facts and disposition of the charged offense, of a
witness who has been granted judicial diversion. Id. Therefore, when considered in the
framework of Rule 608(b), the trial court correctly excluded extrinsic evidence consisting
of the plea documents. The court, however, erroneously restricted the defendant’s cross-
examination of Ms. Egan by disallowing questions concerning Ms. Egan’s commission of

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the thefts and the diverted charges, which implicated her credibility, and by limiting the
defendant to questions concerning whether Ms. Egan had been “accused” of the thefts.
Clearly, the impeachment effect of the testimony was diminished by this improper limitation.

                That being said, we further determine that the erroneous restriction of cross-
examination was harmless in this case. The defendant asked Ms. Egan whether she had been
accused of two separate theft offenses in December 2010, 17 months after her participation
as a confidential informant in the SCSO’s investigation of the defendant and two months
prior to trial. She admitted that she had been accused of the two theft offenses, one of which
involved a theft of money from the SCSO during an unrelated controlled drug buy.
Likewise, Detective Jewell testified that he knew that the defendant had recently been placed
on judicial diversion. Thus, the jury heard some evidence of the factual basis for Ms. Egan’s
recent charges as well as the disposition of the charges. Furthermore, the defendant
acknowledged at trial that the recorded telephone conversations between himself and Ms.
Egan revealed his telling Ms. Egan he could obtain the marijuana by “mak[ing] a call” and
his advising Ms. Egan to telephone him before coming to the bar to purchase the marijuana.
In our view, the trial court’s erroneous restriction of cross-examination was harmless in this
case.

                                         Conclusion

               The evidence is sufficient to support the defendant’s conviction of simple
possession of marijuana. The trial court committed no reversible error. Accordingly, the
judgment of the trial court is affirmed with instructions on remand to correct the judgment
to reflect accurately the pretrial jail credits earned by the defendant.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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