State of Tennessee v. Gerald Eugene White

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 1, 2012

STATE OF TENNESSEE v. GERALD EUGENE WHITE

Direct Appeal from the Criminal Court for Putnam County

No. 100121 Leon C. Burns, Judge

No. M2011-01357-CCA-R3-CD - Filed September 27, 2012

A Putnam County jury convicted the Defendant, Gerald Eugene White, of possession of more

than .5 grams of cocaine with intent to sell or deliver and simple possession of oxycodone.

The trial court sentenced the Defendant as a career offender to an effective sentence of thirty

years in the Tennessee Department of Correction. The Defendant appeals, arguing that: (1)

the evidence is insufficient to support his convictions; (2) the trial court erred when it

allowed testimony in violation of Tennessee Rule of Evidence 404(b); (3) the State made an

improper closing argument; and (4) the trial court improperly sentenced the Defendant as a

career offender. After a thorough review of the record and relevant law, we affirm the trial

court’s judgments.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which D. K ELLY T HOMAS,

J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Wesley Bray (at trial) and David Brady and Jennifer Kollstedt (on appeal), Cookeville,

Tennessee, for the appellant, Gerald Eugene White.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney

General; Randy York, District Attorney General; and Douglas E. Crawford, Assistant District

Attorney General, for the appellee, the State of Tennessee.

OPINION

I. Facts

This case arises from the Defendant’s participation in the illegal sale of drugs to a

confidential informant who was working with police. The Defendant sold the drugs in a

neighboring county, White County, and shortly thereafter was arrested in Putnam County for

the possession of drugs with the intent to sell or deliver. A Putnam County grand jury

indicted the Defendant for two counts of possession of more than .5 grams of cocaine with

intent to sell or deliver and two counts of possession of oxycodone with intent to sell or

deliver.

A. Hearing

Before the Defendant’s trial in this matter, the State filed a motion in limine

requesting to enter evidence, pursuant to Tennessee Rule of Evidence 404(b), of the

Defendant’s drug sale in White County shortly before his Putnam County arrest for felony

possession of drugs. The trial court held a hearing on the State’s motion, during which the

following evidence was presented: Craig Capps, a White County Sheriff’s Department

detective, testified that he was a narcotics investigator and his work focused solely on

narcotic sales and deliveries. Detective Capps recalled that he participated in an

investigation of the Defendant that resulted in a controlled buy on October 1, 2009.

Detective Capps explained that he arranged for a confidential informant to meet the

Defendant at the “Airport Chevron” to buy crack cocaine. The Defendant met the

confidential informant on the side of the building where a security camera was located.

Detective Capps said that he observed the transaction by watching the security camera

footage from the manager’s office inside the gas station. Detective Capps recounted the

events he viewed from the manager’s office. The confidential informant got out of his car

and walked to the passenger-side window of the Defendant’s white Dodge Durango. The

confidential informant made the exchange of money for drugs, and then the Defendant drove

away. Detective Capps notified Cookeville police that the Defendant was “getting on 111

and going northbound.” Cookeville police initiated a traffic stop of the white Dodge

Durango immediately after it crossed the Putnam County line.

Detective Capps testified that the confidential informant was under observation at all

times. After the controlled buy, the confidential informant had off-white rocks that the

Tennessee Bureau of Investigation (“TBI”) crime lab later confirmed to be 1.8 grams of

crack cocaine. Detective Capps said he provided the confidential informant with $260.00

to make the purchase. He explained that the serial numbers from the money were written

down before the controlled buy in order to later confirm the sale. Detective Capps went to

the scene where officers apprehended the Defendant, and then proceeded to the Putnam

County Sheriff’s office, where he confirmed that the serial numbers on the money seized

from the Defendant matched the serial numbers on the bills the officer gave to the

confidential information for the controlled buy.

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On cross-examination, Detective Capps testified that the video footage he watched

inside the Chevron station was in color and of “average” quality. Detective Capps said that

the confidential informant parked his white pickup truck next to the Defendant’s white

Dodge Durango with the front of both cars facing the wall of the gas station. The

confidential informant got out of the driver’s side door of the truck and walked to the

Defendant’s passenger-side window, where he stood in between the two vehicles to purchase

the drugs. Detective Capps said that, from his position, he could not see inside the Dodge

Durango. He confirmed that he had previously worked with the confidential informant but

had not worked with him since the controlled buy because the informant had received

additional drug charges.

At the conclusion of this hearing, the trial court found that there was clear and

convincing evidence that the Defendant engaged in a drug transaction and the transaction

was admissible to show intent. The trial court further stated that, although the evidence had

“some prejudicial impact,” it provided “great” probative value on whether there was

possession with the intent to sell. Based upon these findings, the trial court granted the

State’s motion requesting the introduction of this evidence.

B. Trial

At a trial on these charges, the parties presented the following evidence: Detective

Capps testified consistently with his testimony from the 404(b) hearing. In addition, he

testified that, before the controlled buy, police searched the confidential informant and his

car, equipped the confidential informant with an audio recording device, and provided him

with buy money. While Detective Capps watched the video camera footage inside the gas

station manager’s office, Detective Bumbalough was outside monitoring the recording device

worn by the confidential informant. After the transaction was complete, the Defendant drove

away, and Detective Capps followed the confidential informant to a church parking lot

nearby and searched the confidential informant and his vehicle again.

Detective Capps testified that, at the time of the Defendant’s arrest, a large sum of

money was in his possession. The $260.00 used by the confidential informant to buy the

crack cocaine was among the other bills found on the Defendant.

On cross-examination, Detective Capps agreed that he could not actually see the

Defendant inside the Dodge Durango. Further, he did not actually see the exchange of drugs

for money between the Defendant and the confidential informant. Detective Capps explained

that he did not arrest the Defendant immediately after the drug transaction at the gas station

because police were trying to protect the confidential informant’s identity. Detective Capps

agreed that the confidential informant was a convicted felon and that the confidential

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informant was, at the time of trial, in federal custody for selling cocaine.

Brandon Tayes, a Cookeville Police Department officer, testified that his unit leader

instructed him that White County law enforcement was preparing to do a controlled purchase

of crack cocaine from the Defendant and that he needed to wait at the county line to stop the

Defendant after the purchase. Officer Tayes initiated the traffic stop of a white Dodge

Durango. Inside the Dodge Durango, the Defendant was seated in the front passenger seat,

his wife, Erika Allen, was the driver of the vehicle, and three children were in the back seat.

The Defendant was not immediately arrested in an attempt to protect the confidential

informant’s identity. Instead, the officer asked Allen to step out of the vehicle and obtained

her consent to search the vehicle. Officer Tayes conducted a safety frisk of the Defendant

and observed what he believed to be narcotics in the Defendant’s front pocket. Officer Tayes

asked the Defendant about the item “balled up” in his front pocket and the Defendant

responded it was, “Nothing.” Officer Tayes took the object from the Defendant’s pocket.

He testified that the item appeared to be about 3.5 grams of crack cocaine.

Officer Tayes testified that oxycodone pills were found both in the front seat of the

car and on the Defendant’s person. The oxycodone pills were packaged in clear wrapping

giving the appearance that the pills were for sale. Officer Tayes identified the TBI Forensic

Chemistry Report, which confirmed that the item retrieved from the Defendant’s pocket was

cocaine base and weighed 3.8 grams. It further confirmed that eleven of the pills found were

oxycodone. The trial court admitted the report into evidence by stipulation of the parties.

Officer Tayes said that $668.00 in various denominations was also found on the Defendant.

Officer Tayes described $260.00 of the money as being “wadded up” and “separate” from

the “other money.” Officer Tayes said that he received a list of the buy money serial

numbers from Detective Capps, and he confirmed the serial numbers from the list with the

money recovered from the Defendant. Officer Tayes testified that he did not recover any

paraphernalia associated with smoking crack cocaine from the Defendant’s person or the

vehicle.

Officer Tayes identified a video recording of the traffic stop involving the Defendant,

and the State played it for the jury.

Officer Tayes testified that, at some point, he told the Defendant that he had

information that the Defendant had been selling drugs, to which the Defendant responded,

“You got me.” The Defendant admitted that the narcotics were his and told Officer Hayes

that he had obtained the pills “from the streets.” The Defendant told Officer Tayes that he

was not a dealer but an addict.

Based upon this evidence, the jury convicted the Defendant of possession of more

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than .5 grams of cocaine with intent to sell or deliver and simple possession of oxycodone.

B. Sentencing Hearing

At the sentencing hearing, the parties presented the following evidence: Katina

Bohannon, a Board of Probation and Parole officer, testified that she prepared the sentencing

report for this case. The sentencing report reflected convictions for marijuana possession,

resisting arrest, driving with a suspended license, aggravated robbery, and kidnapping. After

Bohannon briefly reviewed the Defendant’s criminal history, the State asked to move into

the record six certified copies of the felony convictions listed in the sentencing report.

Defense counsel made a hearsay objection to the entry of the certified copies. The trial court

overruled defense counsel’s objection and admitted the certified copies of the Defendant’s

felony convictions into evidence.

Bohannon testified that the Defendant was incarcerated from September 16, 1997,

until July 2, 2007, for two counts of aggravated robbery and one count of kidnapping.

During his incarceration, the Defendant received fifty-eight “disciplinaries.” The Defendant

reported no history of alcohol use but “regular daily” use of marijuana and cocaine. The

Defendant reported that he had two stepchildren, one biological child, who lived with he and

his wife, and another biological child who lived in Memphis.

Carla Ellison, who was employed by Kids First, testified on the Defendant’s behalf.

Ellison explained that she came to know the Defendant through her work. The Department

of Children’s Services referred the Defendant’s family to Kids First for family support

services. Ellison said that, in preparing children to return to their homes after state custody,

she evaluates the homes to make sure the children are returning to a stable environment

where the parents are using appropriate parenting skills. Ellison visited the Defendant’s

home approximately ten times over a three-month period. Ellison said that her reports from

the evaluation of the Defendant’s home were “all positive.” Ellison said that, during her

evaluation, she found no reason to delay reunification, so the children returned home, where

they were still living with their mother at the time of the hearing. Ellison said that the

Defendant had “a very positive relationship and effect on the children.”

The Defendant testified that he had never been given the opportunity to serve a

probationary sentence. The Defendant said that, before his current incarceration, he worked

at J & C Automotives. The Defendant testified that he lived with and cared for three

children. The Defendant said that he was a drug addict and he completed a program at

“Bradford.” After his release from this treatment program, the Defendant attended after-care

until he was arrested on these charges. The Defendant said that he had attended AA

meetings while incarcerated.

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The Defendant testified that it was during his third year of college that he was arrested

for the aggravated burglaries and kidnapping. He explained that his financial aid had “r[u]n

out” and he had no other resources, so he resorted to crime in order to return to school. The

Defendant denied possession of a gun during the robberies and stated that his co-defendants

held the gun while he served as a “look out.”

On cross-examination, the Defendant testified that he only had one opportunity for

parole during his previous incarceration, and it was denied because of the seriousness of his

crimes. The Defendant denied knowledge of two other parole reviews that declined parole

based on his prison disciplinary record.

After hearing the evidence, the trial court sentenced the Defendant as a career

offender to thirty years for the Defendant’s possession of more than .5 grams of cocaine with

intent to sell or deliver conviction and to eleven months and twenty-nine days for the

Defendant’s simple possession of oxycodone. The trial court ordered these sentences to run

concurrently, for a total effective sentence of thirty years. It is from these judgments that the

Defendant now appeals.

II. Analysis

The Defendant asserts that: (1) the evidence is insufficient to support his convictions;

(2) the trial court erred in allowing testimony in violation of Tennessee Rule of Evidence

404(b); (3) the State made an improper argument during closing arguments; and (4) the trial

court improperly sentenced the Defendant as a career offender.

A. Sufficiency of the Evidence

The Defendant argues that the evidence is insufficient to support his convictions for

possession of more than .5 grams of cocaine with intent to sell or deliver and simple

possession of oxycodone. The State responds that sufficient evidence was produced at trial

for a reasonable trier of fact to find the Defendant guilty of both convictions. We agree with

the State.

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 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) (emphasis in original); 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 rule applies to findings of guilt based upon

direct evidence, circumstantial evidence, or a combination of both direct and circumstantial

6

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. Cabbage,

571 S.W.2d 832, 835 (Tenn. 1978) (quoting 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 legitimate

inferences’” which 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).

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1. Possession of more than .5 grams of Cocaine with Intent to Sell or Deliver

The Defendant was convicted of possession of more than .5 grams of cocaine with

intent to sell, and the State was required to prove beyond a reasonable doubt that the

Defendant knowingly “possess[ed] a controlled substance with intent to manufacture, deliver

or sell the controlled substance.” T.C.A. § 39-17-417(a)(4) (2006 & Supp. 2007). A

violation of Tennessee Code Annotated section 39-17-417(a)(4) is a Class B felony if the

amount of the cocaine possessed is .5 grams or more. T.C.A. § 39-17-417(c)(1) (2006 &

Supp. 2007). Thus, in order to convict the Defendant, the State was required to prove beyond

a reasonable doubt: (1) a knowing mental state; (2) possession of cocaine; (3) an intent to sell

or deliver that cocaine; and (4) that the weight of the cocaine was .5 grams or more. T.C.A.

§ 39-17-417(a),(c) (2006 & Supp. 2007).

“[A] person . . . acts knowingly with respect to the conduct or to circumstances

surrounding the conduct when the person is aware of the nature of the conduct or that the

circumstances exist.” T.C.A. § 39-11-302(b) (2006). A conviction for possession of cocaine

may be based upon either actual or constructive possession. State v. Shaw, 37 S.W.3d 900,

903 (Tenn. 2001); State v. Brown, 823 S.W.2d 576, 579 (Tenn. Crim. App. 1991); State v.

Cooper, 736 S.W.2d 125, 129 (Tenn. Crim. App. 1987). Further, the trier of fact may infer

from the amount of the drugs, along with relevant facts surrounding the arrest, that the drugs

were possessed for the purpose of selling them. T.C.A. § 39-17-419 (2006); see also State

v. Willie Earl Kyles, Jr., No. W2001-01931-CCA-R3-CD, 2002 WL 927604, at *2 (Tenn.

Crim. App., at Jackson, May 3, 2002), perm. app. denied (Tenn. Oct. 21, 2002) (concluding

that jury could infer possession of drugs with intent to sell or deliver from amount of drugs

and circumstances surrounding arrest of defendant); State v. James R. Huntington, No.

02C01-9407-CR-00149, 1995 WL 134589, at *3-4 (Tenn. Crim. App., at Jackson, Mar. 29,

1995), perm. app. denied (Tenn. July 10, 1995) (determining that jury could infer intent to

sell marijuana primarily from large quantity of marijuana in defendant’s possession).

The evidence in this case, viewed in the light most favorable to the State, showed that

the Defendant arranged to meet at the Airport Chevron to sell crack cocaine to a confidential

informant. The confidential informant used $260.00 with recorded serial numbers to make

the purchase. Police officers observed the confidential informant park next to a white Dodge

Durango, make the exchange, and then the Dodge Durango drive away. The Defendant was

stopped in a white Dodge Durango shortly thereafter and had in his possession 3.8 grams of

crack cocaine and $668.00 in various denominations. Among the money collected, police

officers found the $260.00 used by the confidential informant to buy the crack cocaine. The

Defendant admitted ownership of the crack cocaine to police. Accordingly, the evidence is

sufficient to prove beyond a reasonable doubt that the Defendant possessed .5 grams or more

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of cocaine with the intent to sell.

The Defendant claims that the evidence is insufficient as to his intent to sell the

cocaine. The Defendant contends that Detective Capps testimony about the drug sale in

White County was insufficient because Detective Capps did not actually see the Defendant

when he viewed the transaction via a closed circuit television inside the gas station. The

jury, however, heard the circumstances under which Detective Capps viewed the transaction

and defense counsel’s thorough examination of Detective Capps on this subject. We note

that it is the jury’s prerogative to evaluate and weigh the evidence. By its verdict, the jury

exercised its prerogative and chose to accredit the testimony of the State’s witnesses. It is

the jury who is charged with making credibility determinations, not this Court. Smith, 24

S.W.3d at 278. It is not the function of this Court to reweigh the credibility of witnesses on

appeal. Id. at 278-79.

Furthermore, there was also evidence surrounding the Defendant’s arrest that

supported an inference that the drugs were possessed for the purpose of sale. See Kyles,

2002 WL 927604, at *2; Huntington, 1995 WL 134589, at *3-4. An additional 3.8 ounces

of crack cocaine was found on the Defendant and a large amount of cash in varying

denominations. While the jury heard the Defendant’s statement that he was an addict, they

also heard that the Defendant was in possession of the controlled buy money and that he did

not have any paraphernalia for drug use.

The Defendant also contends that, because the State failed to provide an expert

witness to testify about the contents of the TBI report, the evidence is insufficient. The TBI

report was introduced through Officer Tayes by stipulation and without objection. By

stipulating to the admission of the report, the Defendant waived any right to complain about

the admissibility of the evidence. See Tenn. R. App. P. 36(a).

We conclude that there was sufficient evidence to support a jury finding that the

Defendant was in possession of more than .5 grams of cocaine with the intent to sell. The

Defendant is not entitled to relief as to this issue.

2. Possession of Oxycodone

Tennessee Code Annotated section 39-17-418(a) provides that “[i]t is an offense for

a person to knowingly possess or casually exchange a controlled substance, unless the

substance was obtained directly from, or pursuant to, a valid prescription or order of a

practitioner while acting in the course of professional practice.” Oxycodone is a Schedule

II controlled substance. T.C.A. § 39-17-408(b)(1)(O) (Supp. 2007).

9

The evidence, considered in the light most favorable to the State, shows that the

Defendant was stopped shortly after he sold crack cocaine to a confidential informant. On

his person and in the area in which he was seated in the vehicle, police officers found pills

in a clear, plastic baggie that were later confirmed to be oxycodone. The Defendant never

claimed, nor does he now, that he possessed the oxycodone as a prescribed medication. The

Defendant admitted ownership of the oxycodone pills. Accordingly, there was sufficient

evidence for a jury to find that the Defendant knowingly possessed the oxycodone without

a valid prescription in violation of Tennessee Code Annotated section 39-17-418(a). The

Defendant is not entitled to relief as to this issue.

B. Admission of 404(b) Evidence

The Defendant argues that the trial court failed to follow the requirements of entering

evidence under Rule 404(b) and failed to properly instruct the jury as to the evidence. The

State responds that the trial court properly admitted evidence of the White County drug

transaction and properly instructed the jury as to the evidence. We agree with the State.

The Tennessee Rules of Evidence provide that all “relevant evidence is admissible,”

unless excluded by other evidentiary rules or applicable authority. Tenn. R. Evid. 402. Of

course, “[e]vidence which is not relevant is not admissible.” Id. Relevant evidence is

defined as evidence “having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence.” Id. at 401. Even relevant evidence, however, “may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.” Id. at 403.

Evidence of other crimes, wrongs, or bad acts is not admissible to prove the character

of a person to show action in conformity with that character. Id. at 404(b). Such evidence

may be admissible, however, for “other purposes.” Id. Our Supreme Court has determined

that such “other purposes” include demonstrating motive or intent. State v. Berry, 141

S.W.3d 549, 582 (Tenn. 2004). Such evidence is admissible for other purposes, provided

that the trial court: (1) upon request, holds a hearing outside the jury’s presence; (2)

determines that a material issue exists other than conduct conforming with a character trait

and, upon request, states the basis for its determination; (3) finds proof of the other crime,

wrong, or act to be clear and convincing; and (4) determines that the probative value of the

evidence is not outweighed by the danger of unfair prejudice. Tenn. R. Evid. 404(b). The

safeguards in Rule 404(b) ensure that defendants are not convicted for charged offenses

based on evidence of prior crimes, wrongs, or acts. State v. James, 81 S.W.3d 751, 758

(Tenn. 2002). When a trial court substantially complies with the procedural requirements of

10

Rule 404(b), the standard of appellate review of the trial court’s decision is abuse of

discretion. See State v. Powers, 101 S.W.3d 383, 395 (Tenn. 2003); James, 81 S.W.3d at

759. If the strict requirements of the rule are not substantially observed, the reviewing court

gives the trial court’s decision no deference. State v. DuBose, 953 S.W.2d 649, 652 (Tenn.

1997).

The trial court held a hearing on the Rule 404(b) evidence outside the presence of the

jury. After hearing the evidence, the trial court identified intent as the material issue other

than conduct conforming with a character trait. The relevant charge was for possession of

more than .5 grams of cocaine with intent to sell or deliver, requiring the State to prove that

the Defendant intended to sell or deliver the cocaine. Evidence that the Defendant was

leaving a drug sale during which he sold crack cocaine to a police confidential informant is

evidence that the Defendant possessed crack cocaine with the intent to sell or deliver.

The trial court also found that the proof of the White County drug transaction was

clear and convincing. Detective Capps testified that he provided the confidential informant

with buy money and searched his person and vehicle for drugs before sending him to make

the controlled buy. Detective Capps observed the exchange while another officer monitored

the exchange on audio equipment. Detective Capps identified the Defendant’s vehicle and

notified authorities down the road to stop the vehicle. The drugs bought by the confidential

informant were tested and confirmed to be cocaine base. Therefore, the trial court did not

abuse its discretion in finding the evidence to be clear and convincing.

The trial court acknowledged that the evidence was prejudicial but found that it

provided “great” probative value on whether there was possession with the intent to sell. The

State was required to prove that the Defendant possessed the crack cocaine with the intent

to sell. See T.C.A. § 39-17-417(a)(4) (2006 & Supp. 2007). Detective Capps’ testimony that

he observed the Defendant arrive at the agreed upon location for the drug sale, interact with

the confidential informant, and then leave after the exchange was proof of the Defendant’s

intent to commit the crime at issue. Because the State had the burden of proving the

Defendant possessed the crack cocaine with the intent to sell, we conclude that the trial court

did not err in finding the probative value of the evidence was not outweighed by the danger

of unfair prejudice.

We conclude that the trial court properly exercised its discretion in admitting evidence

of the White County drug transaction. Further, the trial court properly instructed the jury on

the manner in which it should consider the White County drug sale, and this Court must

presume that a jury followed the trial court’s instructions. State v. Odom, 336 S.W.3d 541,

562 (Tenn. 2011). The Defendant is not entitled to relief.

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C. Improper Argument

The Defendant asserts that the State made an improper comment in closing argument

that prejudiced the jury’s verdict. The Defendant complains that the State improperly told

the jury that it was their duty “to render a verdict that’s consistent with what the State has

proven.” The State contends that the Defendant has waived this issue for failure to make a

contemporaneous objection to the comment, but, even so, the comment was not improper.

We agree with the State.

The Tennessee Supreme Court “has long recognized that closing arguments are a

valuable privilege that should not be unduly restricted.” Terry v. State, 46 S.W.3d 147, 156

(Tenn. 2001) (citing State v. Sutton, 562 S.W.2d 820, 823 (Tenn. 1978)). “Consequently,

attorneys are given greater leeway in arguing their positions before the jury, and the trial

court has significant discretion in controlling these arguments, to be reversed only upon a

showing of an abuse of that discretion.” Terry, 46 S.W.3d at 156 (citing Sutton, 562 S.W.2d

at 823); see Smith v. State, 527 S.W.2d 737, 739 (Tenn. 1975). This Court has explained that

“[closing] arguments must be temperate, based upon the evidence introduced at trial, relevant

to the issues being tried, and not otherwise improper under the facts or law.” See State v.

Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker v. State, 911 S.W.2d 357, 368

(Tenn. Crim. App. 1995)).

When an appellate court determines an argument to be improper, “the established test

for determining whether there is reversible error is whether the conduct was so improper or

the argument so inflammatory that it affected the verdict to the Appellant’s detriment.”

Goltz, 111 S.W.3d at 5 (citing Harrington v. State, 385 S.W.2d 758, 759 (Tenn. 1965)). In

measuring the prejudicial impact of an improper argument, this Court should consider the

following factors: “(1) the facts and circumstances of the case; (2) any curative measures

undertaken by the court and the prosecutor; (3) the intent of the prosecution; (4) the

cumulative effect of the improper conduct and any other errors in the record; and (5) the

relative strength or weakness of the case.” Goltz, 111 S.W.3d at 5-6 (citing Judge v. State,

539 S.W.2d 340, 344 (Tenn. Crim. App. 1976)); see State v. Buck, 670 S.W.2d 600, 609

(Tenn. 1984).

The State correctly notes that the Defendant risked waiver of this issue by failing to

contemporaneously object to the statements. See Tenn. R. App. P. 36(a); State v. Griffis, 964

S.W.2d 577, 599 (Tenn. Crim. App. 1997). Typically when a prosecutor’s statement is not

the subject of a contemporaneous objection, the issue is waived. Tenn. R. Crim. P. 33 and

36(a); State v. Green, 947 S.W.2d 186, 188 (Tenn. Crim. App. 1997); State v. Little, 854

S.W.2d 643, 651 (Tenn. Crim. App. 1992). We choose to address this issue, however,

because the State’s comment during closing argument was not improper.

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The State’s comment that it was the jury’s duty “to render a verdict that’s consistent

with what the State has proven” is an accurate statement of the law. If the State has not

proven the elements of a crime, it is the jury’s duty to render a verdict that the State has not

proven beyond a reasonable doubt that the Defendant committed the crime. Likewise, if, as

in this case, the State proved beyond a reasonable doubt that the Defendant possessed more

than .5 grams of cocaine with the intent to sell and possessed oxycodone, the jury had a duty

to render a verdict consistent with the proof.

Accordingly, we conclude that the State’s comment was not improper. The Defendant

is not entitled to relief as to this issue.

D. Sentencing

The Defendant argues that the trial court erred when it sentenced him as a career

offender in reliance on the certified copies of his prior felony convictions. He states that the

admission of the certified copies violated his constitutional right to confrontation. The State

responds that the convictions were properly admitted as reliable hearsay. We agree with the

State.

Tennessee Code Annotated 40-35-108(a)(1) provides that a defendant who has “[a]ny

combination of six (6) or more Class A, B or C prior felony convictions, and the Defendant’s

conviction offense is a Class A, B or C felony” is a “career offender” for sentencing

purposes. In this case, the Defendant’s prior convictions consisted of five Class B felonies

and one Class C felony. The Defendant’s conviction for possession of .5 grams or more of

cocaine with intent is a Class B felony.

The Defendant does not claim that the convictions are incorrect and, in fact, he

admitted to the convictions during his sentencing hearing testimony. Instead, he claims the

certified copies of the convictions are inadmissible as hearsay and violate his right to

confrontation. Our Supreme Court addressed this issue in State v. Stephenson, 195 S.W.3d

574 (Tenn. 2006), concluding that the Confrontation Clause did not bar the admission of

hearsay evidence during sentencing. Id. at 591. Furthermore, Tennessee Code Annotated

section 40-35-209(b), which addresses sentencing hearings, states, “The rules of evidence

shall apply, except that reliable hearsay including, but not limited to, certified copies of

convictions or documents, may be admitted if the opposing party is accorded a fair

opportunity to rebut any hearsay evidence so admitted.”

Based upon the foregoing, we conclude that the trial court properly considered the

certified copies of the convictions in finding that the Defendant is a career offender for

sentencing purposes. Therefore, the Defendant is not entitled relief as to this issue.

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III. Conclusion

In accordance with the aforementioned reasoning and authorities, we affirm the

judgments of the trial court.

_________________________________

ROBERT W. WEDEMEYER, JUDGE

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