# State of Tennessee v. Martell Smith

> Court of Criminal Appeals of Tennessee · November 12, 2020

URL: https://www.frixlaw.com/law-library/cases/4585659

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** November 12, 2020
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Presiding Judge John Everett Williams
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
___________________________________

No. M2019-01575-CCA-R3-CD
___________________________________

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.
-3-
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
-5-
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
- 10 -
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
- 11 -
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4585659. Public record. Not legal advice.