State v. Bray
| Decision Date | 26 August 1983 |
| Citation | 669 S.W.2d 684 |
| Parties | STATE of Tennessee, Appellee, v. Butch BRAY, Appellant. |
| Court | Tennessee Court of Criminal Appeals |
Neal L. Thompson, Chattanooga, for appellant.
William M. Leech, Jr., Atty. Gen., Steven A. Hart, Asst. Atty. Gen., Nashville, Stephen N. Bevil, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
The defendant, Butch Bray, and his eighteen-year-old son, Tray Bray, were jointly indicted by the Hamilton County Grand Jury in a three-count indictment charging them with feloniously attempting to sell and/or deliver a controlled substance and feloniously obtaining money under false pretenses. Both the defendant and co-defendant were found guilty of feloniously obtaining money under false pretense of a monetary value of less than Two Hundred Dollars ($200), with the punishment for each fixed at confinement in the State Penitentiary for not less than one (1) year nor more than three (3) years.
In his appeal, Butch Bray challenges the sufficiency of the evidence and says the trial court erred in allowing the assistant attorney general to cross-examine the defendant concerning prior misdemeanor convictions for the unlawful possession of controlled substances.
While the co-defendant elected not to appeal and his case is not before us, in order to properly consider the sufficiency issue raised by the appealing defendant, we have examined the record and will summarize the evidence as to each defendant below. It is the theory of the State that this defendant acted in concert with his son, the co-defendant.
Detective William F. Greeson of the Hamilton County Sheriff's Office was working undercover in the narcotics division. He was being assisted by a paid informant named Sonny Lively. After a telephone conversation between Lively and the co-defendant, Tray Bray, during which arrangements were made to purchase fifty (50) Quaaludes, Detective Greeson and Lively drove to the Bray residence. Tray Bray came to the front porch, confirmed the order for fifty (50) pills and reentered the house, at which time, according to the testimony of Officer Greeson, he observed the defendant, who was seated just inside the front door, hand to Tray a small white package. Tray Bray then proceeded to the officer's car and handed him two (2) plastic bags, each containing twenty-five (25) tablets scored "Lemmon 714". The officer gave Tray Bray One Hundred Dollars ($100) in exchange for the two bags of tablets. Greeson testified he thought he was buying methaqualone. Subsequent to the transaction and just prior to the officer driving away, Detective Greeson heard the defendant shout to the co-defendant, "Tell those boys to come back any time; we have anything they want."
Mr. Raymond Siler, a forensic chemist, testified that he tested and analyzed the tablets and found they did not contain methaqualone. He stated the marking "Lemmon 714" on the tablets would represent, if legitimate, that the tablets were manufactured by Lemmon Pharmaceutical Company under the brand name Quaalude containing methaqualone.
Tray Bray admitted during his testimony at trial that Sonny Lovely contacted him by phone and asked if he could get him fifty (50) Quaaludes for Two Dollars each. Young Bray then went to the "Nickel Bag" in Hixson, where he bought a box of pills for $8.30, which he knew contained no drugs and believed to be chalk. The next day, he delivered fifty of these chalk pills to Lively and Greeson, for which he received One Hundred Dollars ($100). He denied getting the pills from his father, Butch Bray. He said his father was drunk at the time and although he was lying on the couch in the living room during the transaction, had no knowledge of it. He denied hearing his father say, "Tell the boys to come back any time; we have anything they want." Young Bray denied being a drug dealer and said he was motivated by a desire to join the Navy and thought helping the police make a "good bust" on a drug deal would somehow achieve this goal.
Butch Bray testified in his own behalf to the effect that he was drinking that day and didn't know what was going on. He denied handing any pills to his son and denied the statement attributed to him by Detective Greeson.
The essential elements of the crime of obtaining money by false pretenses were enumerated by the Supreme Court in Mullican v. State, 210 Tenn. 505, 360 S.W.2d 35 (1962) as follows:
The false representation made must be representative of a past or existing fact, whether it be by oral or written words or conduct, which is calculated to deceive and does as a matter of fact deceive; and by means of which by doing these things, the person who does it obtains something of value from the person injured without proper compensation. (citations omitted) ... under this statute, the intent to defraud is the gravamen or an essential element in the crime.
The proof in this case clearly established that Tray Bray sold fifty pills to the officer, representing them to be Quaaludes, when he knew they were fakes, probably consisting of chalk, and by this deception, the officer was induced to and did, in fact, give Bray One Hundred Dollars ($100). There can be no question but that he obtained this money by false pretenses.
The defendant, Butch Bray, contends that he cannot be guilty of this offense since there is absolutely no evidence that he ever came into possession of the money. We do not believe there is any such requirement under the law.
All persons present, aiding and abetting, or ready and consenting to aid and abett, in any criminal offense, shall be deemed principal offenders and punished as such. T.C.A. § 39-1-303.
A conspiracy is defined as a combination between two or more persons to do a criminal or unlawful act, or a lawful act by criminal or unlawful means. State v. Smith, 197 Tenn. 350, 273 S.W.2d 143 (1954). When persons act together to commit an offense, the actions of one may be imputed to the other, and on that basis, each may be found guilty of the substantive offense committed. In Randolph v. State, 570 S.W.2d 869 (Tenn.Cr.App.1978), cert. denied, Judge Tatum, writing for this Court, summarized this doctrine as follows:
Evidence of any act or declaration of a conspirator during the conspiracy, and in furtherance of it, is admissible as substantive evidence against any co-conspirator on trial for the commission of the target crime. The act or declaration of one conspirator, or accomplice, in...
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