State of Tennessee v. Martell Smith

11/12/2020

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

August 18, 2020 Session

STATE OF TENNESSEE v. MARTELL SMITH

Appeal from the Criminal Court for Putnam County

No. 2016-CR-591 Wesley Thomas Bray, Judge

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No. M2019-01575-CCA-R3-CD

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The Defendant, Martell Smith, was convicted of the sale of 0.5 grams or more of cocaine

and of the delivery of 0.5 grams or more of cocaine, both occurring in a drug-free school

zone, and he received a sentence of thirty years in prison. On appeal, he asserts that his

convictions should be reversed because the State did not prove that the transaction

occurred within the requisite distance of the school or that the educational establishment

at issue was a school under statute, because the prosecutor committed misconduct in his

opening statements, and because the trial court refused to deliver his requested special

instructions. After a thorough review of the record, we affirm the trial court’s judgments.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT L. HOLLOWAY, JR., JJ., joined.

Kendall F. Stivers, Assistant Public Defender – Appellate Division (on appeal); and Craig

Fickling, District Public Defender, and Jon Hatfield, Assistant District Public Defender

(at trial); for the appellant, Martell Smith.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior

Assistant Attorney General; Bryant C. Dunaway, District Attorney General; and Bret

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Defendant was charged with the drug crimes at issue after law enforcement

used a confidential informant to make a controlled purchase of drugs. The purchase

occurred near the premises of Sylvan Prep Academy (“Sylvan Prep”), and the State

introduced video evidence of the transaction, the testimony of the officers monitoring the

transaction, testimony from the owner of Sylvan Prep, and evidence from the city’s

planning department. The Defendant challenged the State’s identity evidence, the

method of measuring the distance between Sylvan Prep and the site of the transaction,

and Sylvan Prep’s qualifications as a school.

During opening statements, the prosecutor outlined the proof that the State

intended to introduce. In noting that the drug transaction was captured on film, the

prosecutor stated, “You will see the video. It’s one of the best videos that you will see in

one of these type[s] of transactions. The [D]efendant’s face is very clear.” The

Defendant did not object to this statement.

The confidential informant did not testify at trial. Instead, the State presented the

testimony of the two law enforcement officers who monitored the transaction, Detective

Brandon Tayes and Lieutenant Chase Mathis. Both testified that on February 15, 2016,

the confidential informant arranged to purchase an “eight ball,” — one eighth of one

ounce or 3.5 grams — of crack cocaine, for three hundred dollars. This amount was

typically purchased for resale rather than personal use. The confidential informant was

searched prior to the transaction to ensure he did not have either drugs or additional cash

on his person. He was given three hundred dollars to make the purchase, and Detective

Tayes and Lieutenant Mathis drove him at around 2:00 p.m., in an unmarked police

vehicle, to the fast-food restaurant where the purchase was to take place. Both Detective

Tayes and Lieutenant Mathis testified that the confidential informant did not choose the

location but relayed the location to law enforcement after he had a telephone

conversation with the seller in the presence of Detective Tayes and Lieutenant Mathis.

Law enforcement provided the confidential informant with covert recording

equipment, and Detective Tayes and Lieutenant Mathis monitored a live audio feed from

the equipment as the transaction took place. The confidential informant left the

unmarked police vehicle and stood by the door of the restaurant for a few minutes.

Detective Tayes testified that it was cold and that the informant entered the restaurant and

stood immediately within the doors, where Detective Tayes could see him through the

glass. A Dodge Charger arrived, and the confidential informant entered the car for a few

minutes. The confidential informant returned to the doorway, and the vehicle proceeded

to the drive-through window of the fast food restaurant. Detective Tayes testified that he

could see the confidential informant the entire time and that the confidential informant

did not have any other interactions which could have constituted a drug transaction.

Because the vehicle involved in the drug transaction began to go toward the drive-

through window, Lieutenant Mathis left the undercover police vehicle and went into the

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fast food restaurant so that he could attempt to view the driver. Lieutenant Mathis passed

the confidential informant, who had returned to the doorway of the restaurant, and sat at a

booth that was immediately next to the drive-through lane. The Defendant drove through

the drive-through, approximately eight feet away from where Lieutenant Mathis was

seated, and Lieutenant Mathis identified the Defendant as the driver of the vehicle used in

the transaction. Lieutenant Mathis was acquainted with the Defendant, having seen him

face-to-face at least two to three times previously. He did not see anyone but the

Defendant in the vehicle.

Detective Tayes took possession of the substance the confidential informant

purchased and of the recording equipment when the confidential informant returned to

the undercover vehicle. The confidential informant was taken to a secure location and

searched again, and he no longer had possession of the money. The substance the

confidential informant gave to Detective Tayes was submitted for testing. Special Agent

Cassandra Franklin Beavers with the Tennessee Bureau of Investigation testified that the

substance consisted of 2.7 grams of a cocaine base, which was a Schedule II substance

also known as crack cocaine. Detective Tayes acknowledged he did not field-test the

substance. He testified that drug sellers typically provide less than the agreed-upon

purchase amount and that they typically weigh drugs with the packaging included in the

weight.

The video and still photographs derived from the video were introduced into

evidence. The video shows a clear picture of the seller’s face and shows a small bag of a

white substance dangling between the seller’s fingers. Detective Tayes acknowledged

that the money was not visible in the video.

While the vehicle was in the parking lot of the restaurant, Detective Tayes gave

the police dispatch the license plate of the car, which was registered to Ms. Stormy

Meetze. Later that afternoon, Detective Tayes and Lieutenant Mathis were alerted that

the same vehicle was involved in a police call at a hotel. Detective Tayes was able to

further identify the vehicle because it had damage to the passenger’s side, which the

confidential informant had noted in his recorded conversation with the Defendant. Ms.

Meetze and the Defendant were in a hotel room, where police discovered digital scales

with cocaine residue on top. The Defendant also had $460 when he was arrested.

Lieutenant Mathis testified that there was a bag from the fast food restaurant in the trash

can of the hotel room. Detective Tayes and Lieutenant Mathis acknowledged that the

money used in the purchase was not recorded and that they could not identify any

particular bill as having come from the confidential informant.

Detective Tayes testified that he did not recall if the confidential informant was

also getting “consideration” for some pending charges in exchange for his participation.

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Lieutenant Mathis testified that the informant was paid and that informants would not

receive both pay and consideration for charges. The confidential informant was paid

between eighty and one hundred dollars for making the undercover purchase. Detective

Tayes acknowledged that if the sale had not been completed, the confidential informant

would have received only a reduced sum of forty to fifty dollars.

Mr. Terry Clark, the “GIS” Planning Manager of the City of Cookeville Planning

Department, testified that he routinely provided the city with maps indicating boundaries

for zoning and other purposes. He testified that his maps were accurate and that the city

relied on them. He prepared a map with a one thousand-foot boundary around the street

address of the strip mall which housed Sylvan Prep. The map indicated the property he

used for the buffer with a yellow line. He acknowledged that the line was around the

entire property belonging to that address and that several businesses unrelated to Sylvan

Prep, including “Direct TV … or Dish Network” shared that same address. He also

acknowledged that a survey, which could cost a quarter of a million dollars, would

provide a more accurate boundary.

Mr. John Keisling testified that he was franchisee and chairman of Performance

Learning, which operates “a school called Sylvan Prep Academy.” In February 2016,

Sylvan Prep was located in Suite 9 of the strip mall, which was assigned a single street

address. Nine other suites in the building included a children’s boutique, an audiology

center, and a temporary employment agency. The suite from which Sylvan Prep operated

was “set back a little bit farther off” the main road, in the back left corner when viewed

from the main road. Mr. Keisling agreed that he did not have authority to enter any of the

spaces rented by other tenants of the strip mall.

Mr. Keisling described the Sylvan Learning Organization as “the largest tutor

provider in North America” and stated he ran both Sylvan Prep and a Sylvan Learning

Center out of the same space. Sylvan Prep enrolled about sixty children, and Sylvan

Learning Center’s Cookeville location had approximately one hundred students, with

other students at satellite locations. He noted that “some home schoolers” came from as

far as Southern Kentucky.

Mr. Keisling described Sylvan Prep as an accredited regional “Category III”

school. He stated that it operated as a private high school and that graduates would

receive diplomas and could transfer high school credits to other schools, including

schools with national accreditation. Sylvan Prep did not have any signs indicating to

vehicles that they were passing through a school zone and did not have crossing guards,

busses, or sports teams. The students attended “on different shifts” during the operational

hours of 8:00 a.m. to 7:30 p.m. and would come “at all different times” during these

hours.

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Neither Detective Tayes nor Lieutenant Mathis was aware that Sylvan Prep was

located near the purchase site, and neither had personally measured the distance between

the site of the transaction and Sylvan Prep.

The jury convicted the Defendant as charged. The trial court merged the offenses

and sentenced the Defendant as a Range II offender to thirty years’ confinement, with the

first twenty-five years to be served at one hundred percent pursuant to statute. See

T.C.A. § 39-17-432(c), (d), (e) (2016). The Defendant filed a motion for a new trial,

which was amended to raise allegedly improper statements made in opening argument

and the trial court’s denial of the Defendant’s motion for special jury instructions. The

trial court denied the motion for a new trial, and the Defendant appeals.

ANALYSIS

On appeal, the Defendant asserts that he is entitled to a new trial because the

evidence was insufficient to show that the transaction occurred within one thousand feet

of Sylvan Prep or that Sylvan Prep was a school, because the prosecutor committed

misconduct in opening argument, and because he was entitled to a jury instruction

regarding the definition of “school property.” We conclude that the State introduced

sufficient evidence to establish the distance to the transaction and Sylvan Prep’s status as

a school, that the Defendant is not entitled to relief for any error in opening statement,

and that the trial court properly instructed the jury.

I. Sufficiency of the Evidence

The Defendant presents no argument contesting the sufficiency of the evidence

that a sale or delivery of over 0.5 grams of cocaine occurred under Tennessee Code

Annotated section 39-17-417. Instead, he challenges the sufficiency of the evidence

establishing that the sale occurred in a drug-free school zone, noting that Mr. Clark’s

testimony only established that the restaurant was within one thousand feet of the corner

of the strip mall housing Sylvan Prep and not that the restaurant was within one thousand

feet of the school’s real property. The Defendant also challenges the sufficiency of the

evidence that Sylvan Prep qualified as a “school” under the statute. The State responds

that the evidence was sufficient to establish both elements.

This court must set aside a finding of guilt if the evidence is insufficient to support

the finding by the trier of fact of guilt beyond a reasonable doubt. Tenn. R. App. P.

13(e). The question before the appellate court is whether, after reviewing 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. State v. Pope, 427 S.W.3d

363, 368 (Tenn. 2013). This court will not reweigh or reevaluate the evidence, and it

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may not substitute its inferences drawn from circumstantial evidence for those drawn by

the trier of fact. State v. Smith, 436 S.W.3d 751, 764 (Tenn. 2014). The jury’s guilty

verdict, approved by the trial judge, accredits the State’s witnesses and resolves all

conflicts in favor of the prosecution. State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002).

The trier of fact is entrusted with determinations concerning witness credibility, factual

findings, and the weight and value of evidence. Smith, 436 S.W.3d at 764. In reviewing

the sufficiency of the evidence, we afford the State the strongest legitimate view of the

evidence and all reasonable inferences that can be drawn from the evidence. State v.

Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013). “A verdict of guilt removes the

presumption of innocence and replaces it with a presumption of guilt, and on appeal the

defendant has the burden of illustrating why the evidence is insufficient to support the

verdict rendered by the jury.” Reid, 91 S.W.3d at 277. “Circumstantial evidence alone is

sufficient to support a conviction, and the circumstantial evidence need not exclude every

reasonable hypothesis except that of guilt.” State v. Wagner, 382 S.W.3d 289, 297

(Tenn. 2012).

A. Measurement of the Drug-Free School Zone

The Defendant challenges whether the State established that the sale or delivery

occurred in a drug-free school zone. Under Tennessee Code Annotated section 39-17-

432 (2016), 1

(b)(1) A violation of § 39-17-417, or a conspiracy to violate the section,

that occurs on the grounds or facilities of any school or within one thousand

feet (1,000’) of the real property that comprises a public or private

elementary school, middle school, secondary school, preschool, child care

agency, or public library, recreational center or park shall be punished one

(1) classification higher than is provided in § 39-17-417(b)-(i) for such

violation.

At trial, Mr. Keisling testified that Sylvan Prep was located in Suite 9 of the street

address of the strip mall. According to Mr. Keisling and Mr. Clark, the nine other

businesses at that address included a boutique, an audiology center, a temp agency, and a

television satellite service provider or television dish store. Mr. Clark created a map

showing a one-thousand-foot buffer extending from the edge of the entire property

housing all of the businesses and suites of the strip mall. There was no testimony

regarding Sylvan Prep’s interest in the parking area. Mr. Keisling agreed that he had no

authority to enter any of the other suites located at the strip mall. He further testified that

1

The statute has since been amended. 2020 Tenn. Pub. Acts, ch. 803, §§ 1 to 9 (eff. Sept. 1,

2020).

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the suite occupied by Sylvan Prep was in the “left back corner” when viewed from the

main road. The map reveals that “left back corner” suite is the suite in the strip mall

which is furthest from the fast-food restaurant where the drug transaction occurred.

The State cites to cases from other jurisdictions to argue that the boundary was

correctly measured from the entire property, while the Defendant asserts that the

unrelated businesses do not comprise the real property of the school. We conclude that,

because the proof included a map from which it is apparent that the restaurant would be

within the one-thousand foot buffer even if the measurement were taken from the far

corner of the strip mall, the evidence is sufficient. In State v. Jamie Paul Click, the court

concluded that it was unnecessary to resolve whether the school’s right-of-way was part

of the real property comprising the school because the State introduced evidence that a

marker within the tract containing the actual school grounds was one thousand feet from

the transaction. No. E2015-01769-CCA-R3-CD, 2017 WL 1189750, at *13 (Tenn. Crim.

App. Mar. 30, 2017), abrogated on other grounds by State v. Patterson, 564 S.W.3d 423,

432-33 (Tenn. 2018). Likewise, in State v. Marvin L. Locke, the State’s failure to

establish that an athletic field across the street from the transaction was part of the real

property of the school was immaterial because other testimony established that the

transaction occurred within one thousand feet of the school building. No. E2005-01359-

CCA-R3-CD, 2006 WL 2684827, at *2 (Tenn. Crim. App. Sept. 18, 2006). Similarly, it

is unnecessary in the instant case to determine the boundaries of the real property of the

school because it is apparent the transaction occurred within one thousand feet of the

suite occupied by Sylvan Prep.

In State v. Terrell B. Johnson, the evidence at trial included testimony that a park

was located 907.4 feet from the boundary of the property where the drug transaction

occurred, and the prosecution also presented a map showing a one thousand-foot distance

from the edge of the property where the transaction occurred to the park. No. E2012-

01946-CCA-R3-CD, 2013 WL 6237090, at *7, 9 (Tenn. Crim. App. Dec. 3, 2013). The

actual transaction occurred in a parking spot at the far end of the property from where the

boundary was measured, making the distance to the actual site farther than 907.4 feet. Id.

at *9. Because the map contained “a scale that [could] be used to determine the distance

beyond the edge of the 907.4’ measurement to the location where the Defendant

possessed the drugs,” this court concluded that the evidence was sufficient to uphold the

drug-free school zone violation. Id.

In the present case, Mr. Clark testified that, as “GIS” Planning Manager, he

routinely provided maps for the purposes of showing boundary areas around certain

pieces of property and that the maps were accurate and relied upon by the city. The map

introduced is an aerial photograph indicating a one thousand-foot buffer around the entire

property of the strip mall. Contrary to the Defendant’s assertion, the map does contain a

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scale, which declares the “Approx Scale to Feet.” Detective Tayes indicated the location

of the drug transaction with an ink dot on the map. The ink dot is well within the one-

thousand foot buffer, and it is apparent that the location of the drug sale occurred within

one thousand feet of any of the suites within the strip mall. Id.; see, e.g., United States v.

Glover, 153 F.3d 749, 756 (D.C. Cir. 1998) (because the distance to the door of the

convenience store was 674 feet, a rational juror could have concluded such a store in a

residential area was less than a football field in length, particularly given video evidence

of the store’s interior and that the actual transaction occurred within one thousand feet).

Accordingly, the evidence is sufficient to support the conclusion that the sale occurred

within one thousand feet of the real property comprising a Sylvan Prep.

B. Definition of “School”

The Defendant also contends that the State failed to establish that Sylvan Prep was

a school within the meaning of the statute. The State responds that Sylvan Prep was a

secondary school within the statutory definition. We conclude that the evidence was

sufficient to establish that Sylvan Prep was a secondary school.

Tennessee Code Annotated section 39-17-432(b)(1) (2016) provides for enhanced

punishment when the sale or delivery of a controlled substance occurs within one

thousand feet of the real property comprising “a public or private elementary school,

middle school, secondary school,” or other facilities not at issue here. A secondary

school is one that provides a secondary education, or “education normally available and

required by state standards to be taught to children enrolled in grades seven through

twelve.” T.C.A. § 49-6-410(a), (b). A child’s parent, guardian, or legal custodian must

send a child between six and seventeen years of age to a public or nonpublic school.

T.C.A. § 49-6-3001(c)(1). A nonpublic school is a church-related school, home school,

or private school. T.C.A. § 49-6-3001(c)(3)(A). A private school is further defined as “a

school accredited by, or a member of, an organization or association approved by the

state board of education as an organization accrediting or setting academic requirements

in schools,” or a school “that has been approved by the state, or is in the future approved

by the commissioner in accordance with rules promulgated by the state board of

education.” T.C.A. § 49-6-3001(c)(3)(A)(iii). Under the Rules of the State Board of

Education, a Category III school is a regionally accredited school. Tenn. Comp. R. &

Regs. 0520-07-02-.01. The school must be accredited by one of the specified regional

accreditation associations. Tenn. Comp. R. & Regs. 0520-07-02-.04. Students are free to

transfer without loss of credit between Category I schools (schools approved individually

by the State Department of Education), Category II schools (schools which belong to an

agency whose accreditation process is approved by the State Board of Education), and

Category III schools. Tenn. Comp. R. & Regs. 0520-07-01-.01, -.03.

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Mr. Keisling testified at trial that Sylvan Prep was a private high school and a

regionally accredited Category III school. Graduates of Sylvan Prep receive high school

diplomas, and students are able to transfer credits earned at Sylvan Prep to public or

parochial schools if they switch schools. Although Mr. Keisling also testified that the

road next to the school did not have a sign indicating a school zone, that the students

attended “on different shifts” between 8:00 a.m. and 7:30 p.m., and that there were no

busses, no crossing guards, and no sports teams, the Defendant has cited to no statutory

or regulatory authority for the proposition that any of these indicators are necessary to the

determination of what constitutes a “secondary school” under the statute. Nor does the

Defendant point to any statutory requirement necessary for a “secondary school” that

Sylvan Prep fails to meet. Instead, we are left with the statutory definition of a secondary

school as one that provides a secondary education, or “education normally available and

required by state standards to be taught to children enrolled in grades seven through

twelve.” T.C.A. § 49-6-410(a), (b). According to Mr. Keisling’s testimony, Sylvan Prep

provided such an education, awarding graduates high school diplomas and allowing them

to transfer credits earned for courses taken at Sylvan Prep. Accordingly, the evidence

presented at trial was sufficient to enable a rational trier of fact to conclude that Sylvan

Prep was a secondary school. The Defendant is not entitled to relief.

II. Prosecutorial Misconduct in Opening Statements

The Defendant asserts that the prosecutor committed misconduct by vouching for

the quality of the video evidence and the identity of the Defendant as the seller in his

opening statement. The State responds that the comments were not improper and that the

Defendant has waived the issue. The Defendant disputes waiver and asserts that he is in

any event entitled to relief under either plain error or plenary review.

No contemporaneous objection was lodged to the prosecutor’s statement that the

video was “one of the best” of its type and that the Defendant’s face was clear in the

video. The Defendant’s amended motion for a new trial raised the issue that the

prosecutor’s comments were improper. The State asserts that the failure to object

contemporaneously constitutes waiver and that the issue must be reviewed pursuant to

plain error review. For an error to constitute plain error sufficient to merit relief, the

following factors must be present:

(1) the record must clearly establish what occurred in the trial court; (2) a

clear and unequivocal rule of law must have been breached; (3) a

substantial right of the accused must have been adversely affected; (4) the

accused did not waive the issue for tactical reasons; and (5) consideration

of the error is necessary to do substantial justice

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State v. Bishop, 431 S.W.3d 22, 44 (Tenn. 2014) (citing State v. Adkisson, 899 S.W.2d

626, 641-42 (Tenn. Crim. App. 1994)). Additionally, “the plain error must be of such a

great magnitude that it probably changed the outcome” of the proceeding. Id. (quoting

Adkisson, 899 S.W.2d at 642). This court need not consider all the factors if it is clear

that the defendant will fail to establish at least one. State v. Jordan, 325 S.W.3d 1, 58

(Tenn. 2010).

The Defendant counters that State v. Hawkins, 519 S.W.3d 1, 48 (Tenn. 2017),

stands for the proposition that an appellate court will apply plenary review on a case-by-

case basis to prosecutorial misconduct in opening or closing argument. In Hawkins, a

death penalty case, the defendant raised four instances of alleged misconduct in closing

statements, none of which drew a contemporaneous objection and only two of which

were raised in the motion for a new trial. Id. This court reviewed all four instances for

plain error, State v. James Hawkins, No. W2012-00412-CCA-R3-DD, 2015 WL

5169157, at *24 (Tenn. Crim. App. Aug. 28, 2015), but the Tennessee Supreme Court

applied plenary review to the two issues raised in the motion for a new trial, one of which

had been the subject of a previous motion in limine, Hawkins, 519 S.W.3d at 48. We

note that one of the prosecutor’s statements which received plenary review violated the

trial court’s previous ruling that the prosecutor should not use the term “rape” when

referring to an offense not charged in the case. Id. The Tennessee Supreme Court did

not state its rationale for applying plenary review to the remaining issue, but we note that

appellate courts have applied a “heightened standard of scrutiny … to the review of a

sentence of death.” Harris v. State, 947 S.W.2d 156, 178 (Tenn. Crim. App. 1996) (order

denying petition to rehear). In addition, courts generally apply plain error review when

the defense has failed to object to the contents of the prosecutor’s argument. See State v.

Jordan, 325 S.W.3d 1, 58 (Tenn. 2010) (reviewing closing argument for plain error when

the defendant did not contemporaneously object); State v. Thomas, 158 S.W.3d 361, 413

(Tenn. 2005) (reviewing prosecutor’s opening remark for plain error when there was no

objection); State v. Richard Shawn O’Rourke, No. M2017-00375-CCA-R3-CD, 2018 WL

4492744, at *4 (Tenn. Crim. App. Sept. 19, 2018) (applying plain error review to opening

statement when there was no objection and the issue was not preserved in the motion for

a new trial).

Regardless of whether or not the issue is reviewed for plain error, we conclude the

Defendant is not entitled to relief. All parties have a right to give an opening statement to

the jury “setting forth their respective contentions, views of the facts and theories of the

lawsuit.” T.C.A. § 20-9-301. Such statements “‘are intended merely to inform the trial

judge and jury, in a general way, of the nature of the case and to outline, generally, the

facts each party intends to prove.’” State v. Reid, 164 S.W.3d 286, 343 (2005) (quoting

Harris v. Baptist Mem’l Hosp., 574 S.W.2d 730, 732 (Tenn. 1978)). Argument should be

predicated on evidence introduced at trial and may include a summary of the facts which

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will support the theory of the case, as long as those facts are likely to be supported by

admissible evidence. State v. Sexton, 368 S.W.3d 371, 415 (Tenn. 2012). Argument by

counsel is generally “‘a valuable privilege that should not be unduly restricted.’”

Thomas, 158 S.W.3d 361, 412 (Tenn. 2005) (quoting Smith v. State, 527 S.W.2d 737, 739

(Tenn. 1975)). While attorneys generally are given leeway in argument, the State may

not deliver argument designed to inflame the jury or which strays from the evidence or

pertinent issues. Id. at 413. “Prosecutorial misconduct during argument does not

constitute reversible error unless it appears that the outcome was affected to the

defendant’s prejudice.” Id. In evaluating prejudice, the court considers: (1) the conduct

complained of viewed in context and in light of the facts and circumstances of the case;

(2) curative measures undertaken by the trial court and the prosecution; (3) the intent of

the prosecutor in making the improper statement; (4) the cumulative effect of the

improper conduct when combined with and any other errors in the record; and (5) the

relative strength or weakness of the case. State v. Larkin, 443 S.W.3d 751, 813 (Tenn.

Crim. App. 2013).

This court has recognized five general areas of prosecutorial misconduct in closing

argument: 1) intentionally misstating evidence or misleading the jury regarding

inferences it may draw; 2) expressing personal belief or opinion as to the truth or falsity

of any testimony or evidence or the guilt of the defendant; 3) using argument calculated

to inflame the passions or prejudices of the jury; 4) using argument which would divert

the jury from its duty to determine facts based on evidence by interjecting issues broader

than the guilt or innocence of the accused or by making predictions regarding the

consequences of the verdict; 5) intentionally referring to or arguing facts outside the

record unless they are matters of common public knowledge. State v. Goltz, 111 S.W.3d

1, 6 (Tenn. Crim. App. 2003). These principles have also been applied to opening

argument. Richard Shawn O’Rourke, 2018 WL 4492744, at *5.

The Defendant objects to the following statement made to the jury in opening

argument: “You will see the video. It’s one of the best videos that you will see in one of

these type[s] of transactions. The [D]efendant’s face is very clear.” The Defendant

asserts that, by commenting on quality of the video evidence, the prosecutor was

expressing his personal belief as to the truth or falsity, or perhaps the reliability, of the

video implicating him. The Defendant likewise argues that the prosecutor’s identification

of him as the person on the video was error. Although the relative quality of the video

recording compared to other recorded drug purchases was not particularly relevant and

not predicated on evidence introduced at trial, we cannot conclude that the Defendant is

entitled to relief in light of the facts and circumstances of the case, the cumulative effect

of the statement, and the overall strength of the evidence. See Larkin, 443 S.W.3d at 813.

The same considerations lead to the conclusion that the Defendant is not entitled to relief

based on any statement from the prosecutor expressing an opinion on the Defendant’s

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identity as the perpetrator. Id. The jury was able to view the video, which, as promised,

delivered a clear view of the offender, to determine the issue of identity. The prosecution

presented a witness who was familiar with the Defendant and who identified the

Defendant as the lone person in the vehicle used in the transaction. The vehicle used in

the drug transaction, as identified by its license plate and damage to the passenger’s side,

was at the hotel where the Defendant was staying. In the trash of the hotel room was a

bag of food from the fast food restaurant patronized by the offender. The Defendant was

in possession of over $300 in cash and digital scales with cocaine residue. We cannot

conclude that any error in opening statements affected the outcome to the Defendant’s

prejudice. Thomas, 158 S.W.3d at 413. We likewise cannot conclude that a substantial

right of the accused was adversely affected, that consideration of any error is necessary to

do substantial justice, or that any error probably changed the outcome of the proceedings.

Bishop, 431 S.W.3d at 44. The Defendant is not entitled to relief.

III. Special Instructions

The Defendant also asserts that the trial court erred in failing to provide the jury a

definition of “school property” found in Title 49 of Tennessee Code Annotated, related to

“Education.” The State contends that this argument is waived because the motion for a

new trial was not adequately specific in raising it and because the record does not include

the trial court’s ruling. The Defendant responds that the motion for a new trial was

adequately specific and that the record is sufficient to allow review.

Prior to trial, the Defendant filed two requests for pattern jury instructions,

including an instruction on entrapment, and three requests for special jury instructions.

The first requested special instruction addressed the testimony of a paid informant. The

confidential informant did not testify, so this instruction was not applicable to the

evidence presented at trial. The second special instruction requested the court to combine

the school zone element with the elements of the sale or delivery rather than following

the pattern instructions by asking the jury to determine whether the transaction occurred

in a school zone only after the jury had concluded there was a transaction.2 The third

requested special instruction, regarding school property, is at issue on appeal. The

Defendant requested the following instructions:

School means any public or private elementary, secondary school;

and “school property” means all property used for school purposes,

including, but not limited to school playgrounds.

2

The Defendant’s contention that this was a request for “modified pattern” instructions is belied

by the heading of the motion itself, which designates the motion as “Defendant’s Request For Special

Jury Instruction Number Two.”

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A school safety zone is the territory located within one thousand feet

(1,000’) of school property.

This requested instruction is based on the definitions of “school,” “school

property,” and “school safety zone” found in Title 49, related to Education, of the

Tennessee Code Annotated. T.C.A. § 49-2-116(b)(1), (b)(2), (c) (2016).3 The record

reflects that, during trial, the trial court expressed its intention to discuss jury instructions

with the State and Defendant and that the State asked for a preliminary copy of the

definition of the offenses and ballot form. However, no discussion of the jury

instructions, in particular the requested instructions, is included in the appellate record.

The record contains the jury instructions, and none of the special instructions were given.

The State contends that the issue was not adequately raised in the motion for a

new trial. The motion for a new trial raised both the trial court’s refusal to give the

pattern instructions on entrapment and the denial of “the Defendant’s pretrial motion for

special jury instructions.” As noted above, one of the three requested special instructions

was not applicable because the confidential informant did not testify. While the

Defendant did not specify which special instruction he was raising or whether he was

raising both, and while the discussion of the issue at the hearing was cursory, we

conclude that the motion was adequately specific to preserve a challenge to the two

requested special instructions.

The State argues that this court should not review the issue because the record on

appeal is not adequate in that there is no transcript of the trial court’s ruling on the motion

and no written order denying the motion. The appellant has the duty to prepare a record

which conveys “a fair, accurate and complete account of what transpired with respect to

those issues that are the bases of appeal.” Tenn. R. App. P. 24(b). In the absence of a

transcript, we presume that the absent material would support the trial court’s ruling. See

State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). The record

establishes that the trial court did not give the requested instructions. However, there is

no transcript of the trial court’s denial of the requested instruction which would provide

either the basis of the ruling or any concessions made by defense counsel. Thus, we must

presume the absent portion of the transcript would support the trial court’s ruling.

3

We note that the definition of “school” in this section includes a “state college of applied

technology,” a type of school not protected by the criminal statute creating drug-free school zones.

T.C.A. § 49-2-116(b)(1); T.C.A. § 39-17-432 (2016) (creating a zone around any public or private

elementary school, middle school, secondary school, preschool, child care agency, or public library,

recreational center or park).

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In any event, the jury was instructed that it must find that the sale or delivery

“occurred within one thousand feet (1,000’) of the real property that comprises a public

or private elementary school, middle school or secondary school.” This language tracks

the statute making the offense punishable as one classification higher if the sale or

delivery “occurs … within one thousand feet (1,000’) of the real property that comprises

a public or private elementary school, middle school, [or] secondary school….” T.C.A. §

39-17-432(a) (2016). “The refusal to grant a special request for instruction is error only

when the general charge does not fully and fairly state the applicable law.” State v.

Hanson, 279 S.W.3d 265, 280 (Tenn. 2009). The instruction given was a correct and

complete jury charge, see State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000), and

contained no statement which was inaccurate, inapplicable, or confusing, see State v.

Hatcher, 310 S.W.3d 788, 812 (Tenn. 2010). The Defendant’s insistence on an

instruction defining “school property” is puzzling because the phrase “school property”

does not appear in the criminal statute, which instead used the phrase “real property that

comprises a … school.” There was no call here to provide a definition of a phrase that

did not appear in the statute. Furthermore, the language the Defendant cites pertains to

the authority of the director of schools to post signs declaring “that the delivery or sale of

a controlled substance … to a minor in the school safety zone will subject the offender to

an enhanced punishment.” T.C.A. § 49-2-116(d). The language advocated by the

Defendant accordingly pertains to signs regarding sale of a controlled substance to a

minor in the school safety zone, not the offense of selling controlled substances in

general in a drug-free school zone. Furthermore, the definition requested does not appear

to be limited to real property, as required by the criminal statute. The trial court properly

used the terminology and definitions in the criminal statute enhancing the Defendant’s

offense rather than the definition in Title 49, related to education and signage.

CONCLUSION

Based on the foregoing analysis, we affirm the trial court’s judgments.

___________________________________________

JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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