Following a jury trial, Earnest Ray Toney appeals from his conviction of criminal attempt to traffic in methamphetamine1 and possession of methamphetamine.2 Toney enumerates the following errors: 1 out-of-court statements made by a nontestifying co-defendant were erroneously admitted as res gestae, 2 the out-of-court statements were testimonial and therefore inadmissible under Crawford v. Washington ,3 and 3 the evidence did not suffice to convict him of criminal attempt. For the reasons that follow, we affirm. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.”4 So viewed, the record shows that Toney provided $6,500 in cash to purchase a half pound of methamphetamine in a transaction arranged by Jon Bottrell. Prior to the sale, Bottrell met with the seller and requested a sample to show Toney. Unbeknownst to Bottrell and Toney, the purported seller was an undercover agent in the county drug task force. The agent refused to provide a sample, but instead showed Bottrell a pound of methamphetamine. Satisfied, Bottrell left the meeting to coordinate the purchase with funding from Toney.
Two days later, Bottrell arranged a meeting including himself, the agent, and Toney at a home improvement store, where they would consummate the transaction. As the agent waited in the parking lot, Toney and Bottrell arrived, and Toney walked into the store. The agent then entered the store with Bottrell, who introduced the agent to Toney. Toney explained that he did not “want to do it outside, because he did not know who’s watching and . . . he just wanted to be safe.” As the agent and Toney discussed the transaction, a customer walked past, and Toney quickly changed the subject to the lumber in a nearby display. Toney then led the agent to another aisle and handed the agent $6,500 in cash, and the agent told Toney he would use a bag from the store to discreetly transfer the methamphetamine to Toney’s truck in the parking lot. Toney agreed, and the agent left the store, giving a “takedown” signal to a team of officers staged nearby. Toney and Bottrell were immediately arrested and a search of Toney yielded an additional $1,300 in cash and a small amount less than a gram of methamphetamine on his person. After being read his Miranda 5 rights, Toney was informed that the agent had recorded the entire exchange on a concealed sound and video recorder.6 The agent then orally recounted to Toney what had transpired on the recording, including that they talked about “$6,500 being good enough for a half pound of ice, and you said the price is good.” After being asked if that was what transpired, Toney replied “pretty much.”
