State of Tennessee v. Antonio Vaughn

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 9, 2009

STATE OF TENNESSEE v. ANTONIO VAUGHN

Direct Appeal from the Criminal Court for Davidson County

No. 2006-D-2752 Cheryl A. Blackburn, Judge

No. M2008-01067-CCA-R3-CD - Filed April 13, 2010

A Davidson County jury found the defendant, Antonio Vaughn, guilty of possession of not

less than one-half ounce nor more than ten pounds of marijuana with intent to sell or deliver

within one thousand feet of a school, a class D felony. The trial court sentenced him, as a

Range III career offender, to serve 12 years, at 100 percent, in the Tennessee Department of

Correction. On appeal, he challenges the sufficiency of the convicting evidence and the

denial of his motion for a mistrial. After reviewing the parties’ briefs, the record, and

applicable law, we affirm the judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J ERRY L. S MITH and N ORMA

M CG EE O GLE, JJ., joined.

Wendy S. Tucker (on appeal) and Jeremy Parham (at trial), Nashville, Tennessee, for the

appellant, Antonio D. Vaughn.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

Attorney General; Victor S. Johnson III, District Attorney General; and Bret Thomas Gunn,

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

OPINION

Background

On October 23, 2006, the Davidson County Grand Jury indicted the defendant,

Antonio Vaughn, for possession of not less than one-half ounce nor more than ten pounds

of marijuana with intent to sell or deliver within one thousand feet of a school. The state

presented the following evidence at trial.

David Kline testified that he worked in the mapping division of the Metro Planning

Department. His office makes topographical, planning, transportation, and cadastral maps

for the assessor’s office. His office also makes maps for the public and state and local

government offices. The prosecution requested that Mr. Kline make a map that “centered

on McKissack School at 915 38th Avenue North[.]” The map was an “aerial photo, and

overlaid on top of it [was] property lines.” At the prosecution’s request, Mr. Kline put a

buffer on the map. The map showed the property line of the McKissack School, and it also

had a line that was 1,000 feet away from the school’s property line.

Metro Nashville Police Officer Jamell Randall testified that he had been a police

officer for twelve years. He was a field training officer at the East Precinct and was

responsible for “enforc[ing] all laws and regulation and traffic, drug enforcement, domestic

violence, [taking] all reports, and also train[ing] individual officers that recently just

graduated from the academy.” In September 2005, Officer Randall was training officers at

the North Precinct. Officer Randall stated that he encountered Antonio1 around 8:20 p.m.

on September 28, 2005. According to Officer Randall, it was not dark, and he and Officer

Xay Phasavath were using a laser to enforce traffic around the “Clifton block area.” The

officers had parked their car and were on foot “lasering [sic]” traffic traveling outbound on

Clifton Avenue. Officer Randall was operating the laser, and he measured the speed of the

car in which Antonio was a passenger and found that the vehicle was traveling forty-six miles

per hour in a thirty miles per hour zone. Officer Randall said that after he “flagged the car

over” the driver “recognized [them], started to slow down, and [the car] got . . . about twenty-

five feet in front of [the officers].” Officer Randall testified that he saw the driver of the

vehicle, Chance Vaughn, “moving his hands like he was stuffing something in the front of

his pants.” Officer Randall approached the vehicle, informed the driver of his offense, and

asked him for his driver’s license. The driver was only able to produce a Tennessee

identification card, so Officer Randall asked him to exit the vehicle.

After Chance exited the vehicle, Officer Randall observed “a big bulge in the front

of his pants[.]” Officer Randall asked Chance about the bulge, and he responded that it was

marijuana. Chance removed the marijuana from his pants and gave it to Officer Randall.

After advising Chance of his Miranda rights, Officer Randall questioned him about the

marijuana. According to Officer Randall, Antonio was present while he questioned Chance

1

Because both men involved in this case (Antonio Vaughn and Chance Vaughn) have the same last

name, we will refer to them by their first names in order to avoid confusion. No disrespect is intended to any

person described or discussed herein.

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and acknowledged hearing what Chance told Officer Randall about the marijuana. Officer

Randall said that he and Chance were “in front of the vehicle[,] [a]nd [Antonio] was still

inside on the passenger’s side.” Officer Randall testified that Chance “stated that [he and

Antonio] were cousins. [Antonio] came to him with the marijuana. [Chance] stated that they

agreed that [Chance] would help sell it, but [Antonio] was the owner of it.”

After Officer Randall spoke with Chance, he advised Antonio of his Miranda rights

and talked to him about the marijuana. Officer Randall told Antonio that Chance said that

the marijuana belonged to Antonio. Officer Randall testified that initially Antonio denied

that the marijuana was his, but he later admitted that it was his marijuana and that Chance

had told Officer Randall the truth. According to Officer Randall, Antonio told him that

Chance “had known somebody who wanted to buy the marijuana. And he kind of did the

deal in between . . . [Chance] and the third person who wanted to buy it. And they [were]

in route to make that transaction.”

Officer Randall testified that Antonio also asked him “several times” not to arrest

Chance; however, Officer Randall arrested both men. He did not find any additional drugs

or drug paraphernalia when he searched the men. Officer Randall found $938 in cash on

Chance, $367 in cash on Antonio, and a cellular phone. Officer Randall seized the marijuana

and money, and he turned them in to the property room at the Metro Nashville Police

Department. Using the map that Mr. Kline made, Officer Randall identified where the

incident occurred.

On cross-examination, Officer Randall testified that he was “about 700 feet” away

from the car when he could first see inside of it. He further testified that he was standing on

the side of the street, and the car was traveling down a gradual grade toward him. Officer

Phasavath was standing near the curb “approximately eight feet” to the left of Officer

Randall. Officer Randall recalled that it was beginning to get dark when they saw the car,

but he could not recall whether the car had on its headlights. Officer Randall testified that

the car was around fifteen yards away when he saw Chance moving like he was stuffing

something in his pants. Officer Randall stated that “[m]aybe thirty seconds” passed between

the time that he clocked the car’s speed and when Officer Phasavath flagged the car over and

the car stopped. Officer Randall could not hear the conversation between the occupants of

the vehicle. He stated that “because of [Chance’s] movement and the safety issues[,] . . . [h]e

was more focused on [Chance] than [Antonio].” Officer Randall testified that he had no

reason to believe that Antonio directed Chance to put anything in his pants.

When Officer Randall approached the vehicle, the movement inside the vehicle had

stopped. Officer Randall could see inside the vehicle, and he did not see any marijuana.

Officer Randall agreed that he did not see Antonio do anything that would justify taking him

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into custody. When Officer Randall asked Chance what was in his pants, Chance pulled the

marijuana from “right where his private area would be.” After Officer Randall mirandized

Chance, Chance told him that the marijuana was Antonio’s. Officer Randall agreed that, in

his experience, this was not the first time that one person tried to blame another when drugs

were found in a stopped vehicle. Officer Randall explained that

[i]f [he stops] a car and somehow the driver or the passenger . . . get[s] out

with marijuana on the person, they usually claim it. Now, maybe if it was in

a place where both of them can get to it, like in the center of an ashtray or

something like that, and we’ve got multiple subjects in the vehicle, then

maybe, yeah. . . . But usually if it’s on that person, that person usually claim[s]

it.

Officer Randall stated, “[Chance’s] words were, I was helping [Antonio] sell it. It’s

[Antonio’s], and I just have possession of it.”

Officer Randall testified that when investigating he tries “to hear all sides of the story

and go with the facts . . . . Every situation and every statement that somebody tells the police

is different. [He looks] at it on a case by case basis.” Officer Randall stated that before

arresting Antonio he spoke with both men, and based on what they told him, he established

probable cause to arrest them. Officer Randall read the men their Miranda rights; however,

he did not have them execute written waivers of their rights. Officer Randall said that

because he was talking loudly, Officer Phasavath heard his conversation with Antonio.

Officer Randall testified that during their conversation, Antonio initially denied the

drugs were his; however,

maybe five minutes into talking to [Antonio] about the narcotics and also

talking to [Chance], calling somebody to come pick up their vehicle because

[Officer Randall] didn’t want to tow it, [Antonio] changed his story and said

that the drugs was [sic] his and, in fact, [Chance’s] story was true.

Officer Randall stated that he did not threaten or coerce Antonio to make him say that the

drugs were his. When asked whether Antonio explained why he decided to claim the

marijuana, Officer Randall answered, “I think I can recall [Antonio] being real concerned

about his past criminal history.”

Defense counsel contemporaneously objected, and the trial judge instructed the jury

to disregard Officer Randall’s answer. The parties had a bench conference. After the bench

conference, defense counsel resumed cross-examination of Officer Randall.

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Officer Randall testified that after he questioned Antonio, two women arrived to

retrieve the vehicle that Chance was driving. Officer Randall did not give the state the

women’s names, but he said that their names were likely on the tow report form, which

released the police department of liability for the vehicle. Officer Randall said that when the

women came, they talked to Antonio about what was going on, and Antonio admitted to them

that the drugs were his. Antonio also told them why he was changing his mind about owning

the drugs. Officer Randall stated that he would have arrested Antonio even if he had not

admitted to owning the drugs because of the “particular facts that [he] had in the case.”

After Officer Randall arrested the men, he searched the vehicle and did not find any

scales, containers to divide the marijuana, or any more drugs. He also searched Antonio’s

person and did not find anything illegal. He stated that someone could have purchased the

bag of marijuana that he recovered from Chance for individual use. Officer Randall stated

that he did not see either Antonio or Chance sell or attempt to sell marijuana.

Officer Randall was responsible for taking Antonio downtown for booking. He stated

that the police station had rooms with audio and video recording capabilities available, but

he did not use such a room when booking Antonio. According to Officer Randall, “street

level officers conduct their business on the street” and do not use interview rooms. Officer

Randall agreed that the stop had gone beyond a traffic citation; however, he stated that this

stop was still “street level.” Officer Randall said that the “whole ordeal took four hours from

beginning to end.” Of those four hours, two to three were spent at the scene of the stop, and

the booking process took about an hour and a half. Officer Randall questioned the men for

about fifteen minutes while at the scene of the stop.

Officer Xay Phasavath testified that on September 28, 2005, he was working at the

Metro Nashville Police Department with Officer Randall, his training officer. On that day,

they were conducting radar enforcement at 39th Avenue North and Clifton Avenue when

they stopped the car that Chance was driving. Officer Phasavath observed Officer Randall

recover “a large plastic bag with what appear[ed] to be a green leaf substance inside,” which

Chance had stuffed inside the crotch area of his pants. Officer Phasavath heard Officer

Randall speaking to Antonio, and he testified that Antonio initially denied that the marijuana

was his. According to Officer Phasavath, after Chance said that he could prove the

marijuana belonged to Antonio, Antonio changed his mind, claimed the marijuana, and said

that Chance was selling the marijuana for him.

On cross-examination, Officer Phasavath testified that when he flagged the vehicle

down, the driver appeared to be stuffing something inside his pants. However, Officer

Phasavath did not actually see Chance stuffing anything inside his pants. When the vehicle

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stopped, Officer Phasavath stood on the passenger side of the vehicle. After Chance exited

the vehicle, Officer Phasavath could see the bulge in his pants because Chance walked back

toward the vehicle. Officer Phasavath stated that he could not hear any conversation between

Antonio and Chance when he flagged down the vehicle and the car was stopping. He further

stated that Chance was the only person moving inside the vehicle. Officer Phasavath did not

see Antonio make any movements while the car was stopping, and he did not hear Antonio

tell Chance to hide the marijuana.

Officer Phasavath heard Officer Randall mirandize Chance, but he did not hear the

details of their conversation. Officer Phasavath watched Chance, who was sitting on the

sidewalk behind the vehicle, while Officer Randall talked to Antonio. Officer Phasavath

heard their conversation but did not make any notes of it. However, Officer Phasavath stated

that he completed a police report. Officer Phasavath was present when Officer Randall

searched Antonio, and he agreed that Antonio did not possess any illegal items. He also

agreed that nothing illegal was found in the vehicle.

Brett Trotter, a forensic scientist in the drug section of the Tennessee Bureau of

Investigation Nashville Crime Laboratory, testified that the police department gave him

material related to this case. He examined the material and determined that the substance

was marijuana. He stated that in Tennessee, marijuana is a Schedule VI controlled substance.

Agent Trotter stated that the marijuana weighed 108.9 grams, which was 3.8 ounces.

Metro Nashville Police Department Patrol Unit Lieutenant, William Mackall, testified

that based on his experience and training, the street value of the marijuana confiscated in this

case would be around $350. He stated that illegal drug use and cash “go hand in hand.” He

further stated that narcotic sales are a “cash business” and that buyers “very seldom”

purchased drugs on credit. According to Lieutenant Mackall, people who strictly use

marijuana typically have a few grams of marijuana and rolling papers or a marijuana pipe in

their possession. He said drug buyers use rolling papers and marijuana pipes to smoke

marijuana, and those that are “purely users” usually have such paraphernalia. Lieutenant

Mackall testified that the amount of marijuana seized in this case was an amount that sellers

usually sell to an individual solely for their use.

On cross-examination, Lieutenant Mackall testified that he was not personally

involved in the investigation of this case, and he was testifying based on his experience. He

stated that based on his experience, buyers purchase street level marijuana in grams. He

further stated that sometimes the seller will have a scale on their person and other times the

drugs are “preweighed” and “prepackaged.” He went on to explain that

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a small level dealer [would] break it down into grams or half a gram[]. If

you’re a mid level, you may be selling it in this [case’s] quantity or you could

be selling it as a pound, so forth and so on. It just depends on what level

dealer you are.

Lieutenant Mackall said that if someone were found with the quantity of marijuana seized

in this case, “[t]hey could have purchased it to sell it. [He had] never seen anybody purchase

[that] amount of drugs just to use for . . . personal use.” He testified that marijuana smokers

typically use a gram of marijuana per “joint,” and in this case, the marijuana would yield

twenty-eight “joints.” He agreed that there were no scales, baggies, or envelopes found on

Antonio, Chance, or in the vehicle. He further agreed that if the men were going to sell the

marijuana they would have had to go somewhere to weigh and package it.

On redirect examination, Lieutenant Mackall agreed that, hypothetically, it was typical

for a person to “have a quantity of marijuana in their home, receive an order for four ounces

of marijuana, measure it out, package it, put [it] in their car, and take it to the person who

ordered it.” On recross-examination, Lieutenant Mackall testified that normally if one is

purchasing marijuana for resale, they buy a larger quantity and then break it down and sell

it. He further testified that if someone was purchasing marijuana for themselves only, they

would buy a half gram or gram.

At the close of the state’s proof, defense counsel made a motion for judgment of

acquittal, which the trial court denied. In the alternative, the defense counsel made a motion

for a mistrial based on Officer Randall’s mention of Antonio’s prior criminal record. The

trial court also denied Antonio’s motion for a mistrial. Antonio waived his right to testify,

and the defense did not present any proof. The jury found Antonio guilty of possession with

intent to sell or deliver more than half an ounce but less than ten pounds within one thousand

feet of a school, a class D felony. The court sentenced Antonio, as a Range III career

offender, to serve 12 years in the Tennessee Department of Correction at 100 percent. The

defendant appeals his conviction.

Analysis

On appeal, Antonio argues that the evidence was insufficient to support his

conviction, and the trial court committed error when it denied his motion for a mistrial. The

state contends that the evidence was sufficient to convict Antonio, and the trial court did not

abuse its discretion when it declined to declare a mistrial.

1. Sufficiency of Evidence

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It is well established that once a jury finds a defendant guilty, his or her presumption

of innocence is removed and replaced with a presumption of guilt. State v. Evans, 838

S.W.2d 185, 191 (Tenn. 1992). Therefore, on appeal, the convicted defendant has the burden

of demonstrating to this court why the evidence will not support the jury’s verdict. State v.

Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000); State v. Tuggle, 639 S.W.2d 913, 914

(Tenn. 1982). To meet this burden, the defendant must establish that no “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); State v. Evans, 108 S.W.3d 231, 236 (Tenn.

2003); see also Tenn. R. App. P. 13(e). In contrast, the jury’s verdict approved by the trial

judge accredits the state’s witnesses and resolves all conflicts in favor of the state. State v.

Harris, 839 S.W.2d 54, 75 (Tenn. 1992). The state is entitled to the strongest legitimate view

of the evidence and all reasonable inferences that may be drawn from that evidence.

Carruthers, 35 S.W.3d at 558. Questions concerning the credibility of the witnesses,

conflicts in trial testimony, the weight and value to be given to the evidence, and all factual

issues raised by the evidence are resolved by the trier of fact and not this court. State v.

Bland, 958 S.W.2d 651, 659 (Tenn. 1997). We do not attempt to re-weigh or re-evaluate the

evidence. State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006). Likewise, we do not replace the

jury’s inferences drawn from the circumstantial evidence with our own inferences. State v.

Reid, 91 S.W.3d 247, 277 (Tenn. 2002). These rules are applicable to findings of guilt

predicated 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).

A defendant may be convicted on the basis of direct or circumstantial evidence or a

combination of both. State v. Winters, 137 S.W.3d 641, 654 (Tenn. Crim. App. 2003); see

also State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). In fact,

circumstantial evidence alone may be sufficient to support a conviction. State v. Tharpe, 726

S.W.2d 896, 899-900 (Tenn. 1987). However, the circumstantial evidence “must be so

strong and cogent as to exclude every other reasonable hypothesis save the guilt of the

defendant, and that beyond a reasonable doubt.” State v. Crawford, 470 S.W.2d 610, 612

(Tenn. 1971). “A web of guilt must be woven around the defendant from which he cannot

escape and from which facts and circumstances the jury could draw no other reasonable

inference save the guilt of the defendant beyond a reasonable doubt.” Id. at 613.

The jury found Antonio guilty of possession with intent to sell or deliver more than

one-half an ounce but less than ten pounds of marijuana within one thousand feet of a school.

In order to convict Antonio the state had to prove that Antonio knowingly possessed, within

one thousand feet of a school, not less than one-half ounce nor more than ten pounds of the

controlled substance with intent to deliver or sell the controlled substance. Tenn Code Ann.

§ 39-17-417(a)(4); 39-17-432 (2006).

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“‘[P]ossession’ may be either actual or constructive” and may be proven by

circumstantial evidence. State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001) (citing State v.

Patterson, 966 S.W.2d 435, 444-45 (Tenn. Crim. App.1997); State v. Brown, 915 S.W.2d 3,

7 (Tenn. Crim. App. 1995)). See also State v. Bigsby, 40 S.W.3d 87, 90 (Tenn. Crim. App.

2000). Constructive possession requires proof that a person had the power and intention at

a given time to exercise dominion and control over the drugs either directly or through others.

Shaw, 37 S.W.3d at 903 (citing State v. Patterson, 966 S.W.2d 435, 444 (Tenn. Crim. App.

1997)). In essence, “constructive possession is the ability to reduce an object to actual

possession.” State v. Ross, 49 S.W.3d 833, 845-46 (Tenn. 2001) (citations omitted).

However, the mere presence in an area where drugs are discovered, or the mere association

with a person who is in possession of drugs, is not, alone, sufficient to support a finding of

constructive possession. Shaw, 37 S.W.3d at 903 (citing Patterson, 966 S.W.2d at 445).

The intention to sell or deliver drugs may be inferred from the amount of the drug

possessed by the accused along with other relevant facts surrounding the arrest. See Tenn.

Code Ann. § 39-17-419; see also State v. John Fitzgerald Belew,

W2004-01456-CCA-R3-CD, 2005 WL 885106, at *5 (Tenn. Crim. App., at Jackson, Apr.

18, 2005) (noting that the jury can infer intent to sell or deliver when amount of controlled

substance and other relevant facts surrounding arrest are considered together). The amount

the drugs and the manner in which it was packaged may also support an inference of intent

to sell. See State v. Brown, 915 S.W.2d 3, 8 (Tenn. Crim. App. 1995).

Taken in the light most favorable to the state, we conclude that the evidence was

sufficient to establish Antonio’s guilt beyond a reasonable doubt. The evidence showed that

Officers Randall and Phasavath stopped the car in which Antonio was a passenger. The stop

occurred in the area of 39th Avenue North and Clifton Avenue, which is within one thousand

feet of McKissack School. Officer Randall seized a bag of a green leaf substance, which was

later determined to be marijuana, from the physical possession of Chance. Although Antonio

did not have physical possession, the evidence showed that it was Antonio’s marijuana, and

Chance was going to help him sell it. Both Antonio and Chance told Officer Randall that the

marijuana belonged to Antonio and not Chance. Antonio was in constructive possession of

the marijuana and had the power and intention to exercise dominion and control over the

marijuana. See Shaw, 37 S.W.3d at 903 (citing Patterson, 966 S.W.2d at 444). Furthermore,

Lieutenant Mackall testified that the amount of marijuana seized in this case was not an

amount that sellers usually sell to an individual solely for their use. Antonio contends that

the testimony of the officers is “disturbingly inconsistent” and this court should disregard it;

however, this court does not resolve credibility of the witnesses or conflicts in trial testimony.

See Bland, 958 S.W.2d at 659. By convicting Antonio, the jury clearly resolved any conflict

in the testimony in favor of the state. Accordingly, we concluded that the evidence was

sufficient for the jury to convict Antonio, and he is not entitled to relief for this issue.

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2. Mistrial

Next, Antonio argues that the trial court abused its discretion when denying his motion

for a mistrial after Officer Randall testified regarding the “excluded, irrelevant, prejudicial,

and inflammatory information regarding [Antonio’s] prior criminal history.” Antonio

contends that Officer Randall’s statement violated Rule 404 of the Tennessee Rules of

Evidence and the trial court’s order excluding evidence of Antonio’s previous criminal

history.

During cross-examination, defense counsel asked Officer Randall if Antonio told him

why he changed his mind about claiming the drugs. Officer Randall answered that Antonio

may have been “real concerned about his past criminal history.” Defense counsel objected

to Officer Randall’s answer and requested that the court strike it. The trial court sustained

the objection, instructed the jury to disregard the answer, and explained that it was irrelevant

to their determination. After the state closed its proof, defense counsel moved the court to

declare a mistrial arguing that Officer Randall’s response was improper. The court denied

the motion and stated that the answer was responsive. In denying the motion, the court noted

that Officer Randall’s response “was an answer that [defense counsel] didn’t like” and that

he had given the jury a curative instruction.

The decision of whether or not to declare a mistrial lies within the sound discretion

of the trial court. State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000). A mistrial

should be declared in a criminal case only when something has occurred that would prevent

an impartial verdict, thereby resulting in a miscarriage of justice if a mistrial is not declared.

See id.; State v. Jones, 15 S.W.3d 880, 893 (Tenn. Crim. App. 1999); Arnold v. State, 563

S.W.2d 792, 794 (Tenn. Crim. App. 1977). “Generally a mistrial will be declared in a

criminal case only when there is a ‘manifest necessity’ requiring such action by the trial

judge.” State v. Millbrooks, 819 S.W.2d 441, 443 (Tenn. Crim. App. 1991) (quoting Arnold,

563 S.W.2d at 794). A manifest necessity exists when there is “no feasible alternative to

halting the proceedings.” State v. Knight, 616 S.W.2d 593, 596 (Tenn. 1981). The burden

to show the necessity for a mistrial falls upon the party seeking the mistrial. Land, 34 S.W.3d

at 527. This court will not disturb the trial court’s decision unless there is an abuse of

discretion. Id. When determining whether a mistrial is necessary because inappropriate

testimony was presented to the jury, this court considers the following non-exclusive factors:

“(1) whether the state elicited the testimony; (2) whether the trial court gave a curative

instruction; and (3) the relative strength or weakness of the state’s proof.” State v. Lawrence

Taylor, No. W2002-00183-CCA-R3-CD, 2003 WL 402276, at *4 (Tenn. Crim. App., at

Jackson, Feb. 14, 2003).

Antonio argues that Officer Randall’s statement “was irrelevant and . . . so prejudicial

and inflammatory that the jury was unable to render an impartial verdict once it was uttered.”

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Antonio further asserts that Officer Randall, a “seasoned police officer with twelve years of

experience[,]” knew that his answer was improper and prejudicial. The state responds by

arguing that Officer Randall’s statement did not create a manifest necessity for a mistrial.

We agree with the state.

We see no abuse of discretion in the denial of the motion for a mistrial. Officer

Randall’s answer, which included mention of Antonio’s prior criminal history, was improper;

however, we do not agree that the comment created a “manifest necessity” for a mistrial.

First, there is no implication that the prosecutor deliberately elicited the comment to create

an inference of guilt on the part of Antonio. See Honeycutt v. State, 544 S.W.2d 912, 917-18

(Tenn. Crim. App. 1976). Officer Randall’s answer was responsive to a question that

defense counsel himself solicited. Second, the trial court gave a curative instruction

immediately after defense counsel objected to Officer Randall’s answer. The jury is

presumed to have followed the court’s curative instruction. State v. Smith 893 S.W.2d 908,

923 (Tenn. 1994) (citing State v. Baker, 751 S.W.2d 154, 164 (Tenn. Crim. App. 1987)).

Finally, the state’s case against Antonio was strong and suggested that the jury would have

been compelled to convict Antonio in the absence of the improper comment. The proof at

trial showed that Antonio admitted that he owned the marijuana and gave it to Chance so that

he could help Antonio sell it. The amount of marijuana seized created an inference that the

men intended to sell it. In addition, the officers stopped the men within one thousand feet

of a school. Accordingly, we conclude that the trial court did not abuse its discretion in

denying Antonio’s request for a mistrial. This issue is without merit, and Antonio is without

relief as to this issue.

Conclusion

Based upon the foregoing review, we affirm the judgment of the trial court.

___________________________________

J.C. McLIN, JUDGE

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